I

104TH CONGRESS

2D SESSION H. R. 4331

To amend certain provisions of law relating to child pornography, and for

other purposes.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 30, 1996

Mr. KENNEDY of Massachusetts introduced the following bill; which was

referred to the Committee on the Judiciary

A BILL

To amend certain provisions of law relating to child

pornography, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Child Pornography

5 Prevention Act of 1996’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) the use of children in the production of sex9 ually explicit material, including photographs, films,

10 videos, computer images, and other visual depictions,
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1 is a form of sexual abuse which can result in phys2 ical or psychological harm, or both, to the children

3 involved;

4 (2) where children are used in its production,

5 child pornography permanently records the victim’s

6 abuse, and its continued existence causes the child

7 victims of sexual abuse continuing harm by haunting

8 those children in future years;

9 (3) child pornography is often used as part of

10 a method of seducing other children into sexual ac11 tivity; a child who is reluctant to engage in sexual

12 activity with an adult, or to pose for sexually explicit

13 photographs, can sometimes be convinced by viewing

14 depictions of other children ‘‘having fun’’ participat15 ing in such activity;

16 (4) child pornography is often used by

17 pedophiles and child sexual abusers to stimulate and

18 whet their own sexual appetites, and as a model for

19 sexual acting out with children; such use of child

20 pornography can desensitize the viewer to the pa21 thology of sexual abuse or exploitation of children,

22 so that it can become acceptable to and even pre23 ferred by the viewer;

24 (5) new photographic and computer imaging

25 technologies make it possible to produce by elec-
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1 tronic, mechanical, or other means, visual depictions

2 of what appear to be children engaging in sexually

3 explicit conduct that are virtually indistinguishable

4 to the unsuspecting viewer from unretouched photo5 graphic images of actual children engaging in sexu6 ally explicit conduct;

7 (6) computers and computer imaging tech8 nology can be used to—

9 (A) alter sexually explicit photographs,

10 films, and videos in such a way as to make it

11 virtually impossible for unsuspecting viewers to

12 identify individuals, or to determine if the of13 fending material was produced using children;

14 (B) produce visual depictions of child sex15 ual activity designed to satisfy the preferences

16 of individual child molesters, pedophiles, and

17 pornography collectors; and

18 (C) alter innocent pictures of children to

19 create visual depictions of those children engag20 ing in sexual conduct;

21 (7) The creation or distribution of child pornog22 raphy which includes an image of a recognizable

23 minor invades the child’s privacy and reputational

24 interests, since images that are created showing a

25 child’s face or other identifiable feature on a body
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1 engaging in sexually explicit conduct can haunt the

2 minor for years to come;

3 (8) the effect of visual depictions of child sexual

4 activity on a child molester or pedophile using that

5 material to stimulate or whet his own sexual appe6 tites, or on a child where the material is being used

7 as a means of seducing or breaking down the child’s

8 inhibitions to sexual abuse or exploitation, is the

9 same whether the child pornography consists of pho10 tographic depictions of actual children or visual de11 pictions produced wholly or in part by electronic,

12 mechanical, or other means, including by computer,

13 which are virtually indistinguishable to the

14 unsuspecting viewer from photographic images of ac15 tual children;

16 (9) the danger to children who are seduced and

17 molested with the aid of child sex pictures is just as

18 great when the child pornographer or child molester

19 uses visual depictions of child sexual activity pro20 duced wholly or in part by electronic, mechanical, or

21 other means, including by computer, as when the

22 material consists of unretouched photographic im23 ages of actual children engaging in sexually explicit

24 conduct;
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1 (10)(A) the existence of and traffic in child por2 nographic images creates the potential for many

3 types of harm in the community and presents a clear

4 and present danger to all children; and

5 (B) it inflames the desires of child molesters,

6 pedophiles, and child pornographers who prey on

7 children, thereby increasing the creation and dis8 tribution of child pornography and the sexual abuse

9 and exploitation of actual children who are victim10 ized as a result of the existence and use of these ma11 terials;

12 (11)(A) the sexualization and eroticization of

13 minors through any form of child pornographic im14 ages has a deleterious effect on all children by en15 couraging a societal perception of children as sexual

16 objects and leading to further sexual abuse and ex17 ploitation of them; and

18 (B) this sexualization of minors creates an un19 wholesome environment which affects the psycho20 logical, mental and emotional development of chil21 dren and undermines the efforts of parents and fam22 ilies to encourage the sound mental, moral and emo23 tional development of children;

24 (12) prohibiting the possession and viewing of

25 child pornography will encourage the possessors of
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1 such material to rid themselves of or destroy the ma2 terial, thereby helping to protect the victims of child

3 pornography and to eliminate the market for the

4 sexual exploitative use of children; and

5 (13) the elimination of child pornography and

6 the protection of children from sexual exploitation

7 provide a compelling governmental interest for pro8 hibiting the production, distribution, possession,

9 sale, or viewing of visual depictions of children en10 gaging in sexually explicit conduct, including both

11 photographic images of actual children engaging in

12 such conduct and depictions produced by computer

13 or other means which are virtually indistinguishable

14 to the unsuspecting viewer from photographic im15 ages of actual children engaging in such conduct.

16 SEC. 3. DEFINITIONS.

17 Section 2256 of title 18, United States Code, is

18 amended—

19 (1) in paragraph (5), by inserting before the

20 semicolon the following: ‘‘, and data stored on com21 puter disk or by electronic means which is capable

22 of conversion into a visual image’’;

23 (2) in paragraph (6), by striking ‘‘and’’;

24 (3) in paragraph (7), by striking the period and

25 inserting a semicolon; and
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1 (4) by adding at the end the following new

2 paragraph:

3 ‘‘(8) ‘child pornography’ means any visual de4 piction, including any photograph, film, video, pic5 ture, or computer or computer-generated image or

6 picture, whether made or produced by electronic,

7 mechanical, or other means, of sexually explicit con8 duct, where—

9 ‘‘(A) the production of such visual depic10 tion involves the use of a minor engaging in

11 sexually explicit conduct;

12 ‘‘(B) such visual depiction is, or appears to

13 be, of a minor engaging in sexually explicit con14 duct; or

15 ‘‘(C) such visual depiction has been cre16 ated, adapted, or modified to appear that an

17 identifiable minor is engaging in sexually ex18 plicit conduct; or

19 ‘‘(D) such visual depiction is advertised,

20 promoted, presented, described, or distributed

21 in such a manner that conveys the impression

22 that the material is or contains a visual depic23 tion of a minor engaging in sexually explicit

24 conduct; and

25 ‘‘(9) ‘identifiable minor’—
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1 ‘‘(A) means a person—

2 ‘‘(i)(I) who was a minor at the time

3 the visual depiction was created, adapted,

4 or modified; or

5 ‘‘(II) whose image as a minor was

6 used in creating, adapting, or modifying

7 the visual depiction; and

8 ‘‘(ii) who is recognizable as an actual

9 person by the person’s face, likeness, or

10 other distinguishing characteristic, such as

11 a unique birthmark or other recognizable

12 feature; and

13 ‘‘(B) shall not be construed to require

14 proof of the actual identity of the identifiable

15 minor.’’.

16 SEC. 4. PROHIBITED ACTIVITIES RELATING TO MATERIAL

17 CONSTITUTING OR CONTAINING CHILD POR18 NOGRAPHY.

19 (a) IN GENERAL.—Chapter 110 of title 18, United

20 States Code, is amended by adding after section 2252 the

21 following:

22 ‘‘§ 2252A. Certain activities relating to material con23 stituting or containing child pornography

24 ‘‘(a) Any person who—
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1 ‘‘(1) knowingly mails, or transports or ships in

2 interstate or foreign commerce by any means, in3 cluding by computer, any child pornography;

4 ‘‘(2) knowingly receives or distributes—

5 ‘‘(A) any child pornography that has been

6 mailed, or shipped or transported in interstate

7 or foreign commerce by any means, including

8 by computer; or

9 ‘‘(B) any material that contains child por10 nography that has been mailed, or shipped or

11 transported in interstate or foreign commerce

12 by any means, including by computer;

13 ‘‘(3) knowingly reproduces any child pornog14 raphy for distribution through the mails, or in inter15 state or foreign commerce by any means, including

16 by computer;

17 ‘‘(4) either—

18 ‘‘(A) in the special maritime and territorial

19 jurisdiction of the United States, or on any

20 land or building owned by, leased to, or other21 wise used by or under the control of the United

22 States Government, or in the Indian country

23 (as defined in section 1151), knowingly sells or

24 possesses with the intent to sell any child por25 nography; or
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1 ‘‘(B) knowingly sells or possesses with the

2 intent to sell any child pornography that has

3 been mailed, or shipped or transported in inter4 state or foreign commerce by any means, in5 cluding by computer, or that was produced

6 using materials that have been mailed, or

7 shipped or transported in interstate or foreign

8 commerce by any means, including by com9 puter; or

10 ‘‘(5) either—

11 ‘‘(A) in the special maritime and territorial

12 jurisdiction of the United States, or on any

13 land or building owned by, leased to, or other14 wise used by or under the control of the United

15 States Government, or in the Indian country

16 (as defined in section 1151), knowingly pos17 sesses any book, magazine, periodical, film, vid18 eotape, computer disk, or any other material

19 that contains 3 or more images of child pornog20 raphy; or

21 ‘‘(B) knowingly possesses any book, maga22 zine, periodical, film, videotape, computer disk,

23 or any other material that contains 3 or more

24 images of child pornography that has been

25 mailed, or shipped or transported in interstate
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1 or foreign commerce by any means, including

2 by computer, or that was produced using mate3 rials that have been mailed, or shipped or

4 transported in interstate or foreign commerce

5 by any means, including by computer,

6 shall be punished as provided in subsection (b).

7 ‘‘(b)(1) Whoever violates, or attempts or conspires to

8 violate, paragraphs (1), (2), (3), or (4) of subsection (a)

9 shall be fined under this title or imprisoned not more than

10 15 years, or both, but, if such person has a prior convic11 tion under this chapter or chapter 109A, or under the laws

12 of any State relating to aggravated sexual abuse, sexual

13 abuse, or abusive sexual conduct involving a minor or

14 ward, or the production, possession, receipt, mailing, sale,

15 distribution, shipment, or transportation of child pornog16 raphy, such person shall be fined under this title and im17 prisoned for not less than 5 years nor more than 30 years.

18 ‘‘(2) Whoever violates, or attempts or conspires to

19 violate, subsection (a)(5) shall be fined under this title or

20 imprisoned not more than 5 years, or both, but, if such

21 person has a prior conviction under this chapter or chapter

22 109A, or under the laws of any State relating to the pos23 session of child pornography, such person shall be fined

24 under this title and imprisoned for not less than 2 years

25 nor more than 10 years.
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1 ‘‘(c) It shall be an affirmative defense to a charge

2 of violating paragraphs (1), (2), (3), or (4) of subsection

3 (a) that—

4 ‘‘(1) the alleged child pornography was pro5 duced using an actual person or persons engaging in

6 sexually explicit conduct;

7 ‘‘(2) each such person was an adult at the time

8 the material was produced; and

9 ‘‘(3) the defendant did not advertise, promote,

10 present, describe, or distribute the material in such

11 a manner as to convey the impression that it is or

12 contains a visual depiction of a minor engaging in

13 sexually explicit conduct.’’.

14 (b) TECHNICAL AMENDMENT.—The table of sections

15 for chapter 110 of title 18, United States Code, is amend16 ed by adding after the item relating to section 2252 the

17 following:

‘‘2252A. Certain activities relating to material constituting or containing child

pornography.’’.

18 SEC. 5. PENALTIES FOR SEXUAL EXPLOITATION OF CHIL19 DREN.

20 Section 2251(d) of title 18, United States Code, is

21 amended to read as follows:

22 ‘‘(d) Any individual who violates, or attempts or con23 spires to violate, this section shall be fined under this title

24 or imprisoned not less than 10 years nor more than 20
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1 years, and both, but if such person has one prior convic2 tion under this chapter or chapter 109A, or under the laws

3 of any State relating to the sexual exploitation of children,

4 such person shall be fined under this title and imprisoned

5 for not less than 15 years nor more than 30 years, but

6 if such person has 2 or more prior convictions under this

7 chapter of chapter 109A, or under the laws of any State

8 relating to the sexual exploitation of children, such person

9 shall be fined under this title and imprisoned not less than

10 30 years nor more than life. Any organization that vio11 lates, or attempts or conspires to violate, this section shall

12 be fined under this title. Whoever, in the course of an of13 fense under this section, engages in conduct that results

14 in the death of a person, shall be punished by death or

15 imprisoned for any term of years or for life.’’.

16 SEC. 6. MATERIAL INVOLVING SEXUAL EXPLOITATION OF

17 MINORS.

18 Section 2252 of title 18, United States Code, is

19 amended—by striking subsection (b) and inserting the fol20 lowing:

21 ‘‘(b)(1) Whoever violates, or attempts or conspires to

22 violate, paragraphs (1), (2), or (3) of subsection (a) shall

23 be fined under this title or imprisoned not more than 15

24 years, or both, but if such person has a prior conviction

25 under this chapter or chapter 109A, or under the laws
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1 of any State relating to aggravated sexual abuse, sexual

2 abuse, or abusive sexual conduct involving a minor or

3 ward, or the production, possession, receipt, mailing, sale,

4 distribution, shipment, or transportation of child pornog5 raphy, such person shall be fined under this title and im6 prisoned for not less than 5 years nor more than 30 years.

7 ‘‘(2) Whoever violates, or attempts or conspires to

8 violate, paragraph (4) of subsection (a) shall be fined

9 under this title or imprisoned not more than 5 years, or

10 both, but if such person has a prior conviction under this

11 chapter or chapter 109A, or under the laws of any State

12 relating to the possession of child pornography, such per13 son shall be fined under this title and imprisoned for not

14 less than 2 years nor more than 10 years.’’.

15 SEC. 7. PRIVACY PROTECTION ACT AMENDMENTS.

16 Section 101 of the Privacy Protection Act of 1980

17 (42 U.S.C. 2000aa) is amended—

18 (1) in subsection (a)(1), by inserting before the

19 parenthesis at the end the following: ‘‘, or if the of20 fense involves the production, possession, receipt,

21 mailing, sale, distribution, shipment, or transpor22 tation of child pornography, the sexual exploitation

23 of children, or the sale or purchase of children under

24 section 2251, 2251A, 2252, 2252A, or 2252B of

25 title 18, United States Code’’; and
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1 (2) in subsection (b)(1), by inserting before the

2 parenthesis at the end the following: ‘‘, or if the of3 fense involves the production, possession, receipt,

4 mailing, sale, distribution, shipment, or transpor5 tation of child pornography, the sexual exploitation

6 of children, or the sale or purchase of children under

7 section 2251, 2251A, 2252, 2252A, or 2252B of

8 title 18, United States Code’’.

9 SEC. 8. AMBER HAGERMAN CHILD PROTECTION ACT OF

10 1996

11 (a) SHORT TITLE.—This section may be cited as the

12 ‘‘Amber Hagerman Child Protection Act of 1996’’.

13 (b) AGGRAVATED SEXUAL ABUSE OF A MINOR.—

14 Section 2241(c) of title 18, United States Code, is amend15 ed to read as follows:

16 ‘‘(c) WITH CHILDREN.—Whoever crosses a State line

17 with intent to engage in a sexual act with a person who

18 has not attained the age of 12 years, or in the special

19 maritime and territorial jurisdiction of the United States

20 or in a Federal prison, knowlingly engages in a sexual act

21 with another person who has not attained the age of 12

22 years, or knowingly engages in a sexual act under the cir23 cumstances described in subsections (a) and (b) with an24 other person who has attained the age of 12 years but

25 has not attained the age of 16 years (and is at least 4
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1 years younger than that person), or attempts to do so,

2 shall be fined under this title, imprisoned for any term

3 of years or life, or both. If the defendant has previously

4 been convicted of another Federal offense under this sub5 section, or of a State offense that would have been an of6 fense under either such provision had the offense occurred

7 in a Federal prison, unless the death penalty is imposed,

8 the defendant shall be sentenced to life in prison.’’.

9 (c) SEXUAL ABUSE OF A MINOR.—Section 2243(a)

10 of title 18, United States Code, is amended by inserting

11 ‘‘crosses a State line with intent to engage in a sexual

12 act with a person who has not attained the age of 12

13 years, or’’ after ‘‘Whoever’’.

14 SEC. 9. SEVERABILITY.

15 If any provision of this Act, an amendment made by

16 this Act, or the application of such provision or amend17 ment to any person or circumstance is held to be unconsti18 tutional, the remainder of this Act, the amendments made

19 by this Act, and the application of such to any other per20 son or circumstance shall not be affected thereby.

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