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[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4123 Introduced in House (IH)]

104th CONGRESS
  2d Session
                                H. R. 4123

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

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                           September 19, 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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Child Pornography Prevention Act of 
1996''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) the use of children in the production of sexually 
        explicit material, including photographs, films, videos, 
        computer images, and other visual depictions, is a form of 
        sexual abuse which can result in physical or psychological 
        harm, or both, to the children involved;
            (2) where children are used in its production, child 
        pornography permanently records the victim's abuse, and its 
        continued existence causes the child victims of sexual abuse 
        continuing harm by haunting those children in future years;
            (3) child pornography is often used as part of a method of 
        seducing other children into sexual activity; a child who is 
        reluctant to engage in sexual activity with an adult, or to 
        pose for sexually explicit photographs, can sometimes be 
        convinced by viewing depictions of other children ``having 
        fun'' participating in such activity;
            (4) child pornography is often used by pedophiles and child 
        sexual abusers to stimulate and whet their own sexual 
        appetites, and as a model for sexual acting out with children; 
        such use of child pornography can desensitize the viewer to the 
        pathology of sexual abuse or exploitation of children, so that 
        it can become acceptable to and even preferred by the viewer;
            (5) new photographic and computer imaging technologies make 
        it possible to produce by electronic, mechanical, or other 
        means, visual depictions of what appear to be children engaging 
        in sexually explicit conduct that are virtually 
        indistinguishable to the unsuspecting viewer from unretouched 
        photographic images of actual children engaging in sexually 
        explicit conduct;
            (6) computers and computer imaging technology can be used 
        to--
                    (A) alter sexually explicit photographs, films, and 
                videos in such a way as to make it virtually impossible 
                for unsuspecting viewers to identify individuals, or to 
                determine if the offending material was produced using 
                children;
                    (B) produce visual depictions of child sexual 
                activity designed to satisfy the preferences of 
                individual child molesters, pedophiles, and pornography 
                collectors; and
                    (C) alter innocent pictures of children to create 
                visual depictions of those children engaging in sexual 
                conduct;
            (7) The creation or distribution of child pornography which 
        includes an image of a recognizable minor invades the child's 
        privacy and reputational interests, since images that are 
        created showing a child's face or other identifiable feature on 
        a body engaging in sexually explicit conduct can haunt the 
        minor for years to come;
            (8) the effect of visual depictions of child sexual 
        activity on a child molester or pedophile using that material 
        to stimulate or whet his own sexual appetites, or on a child 
        where the material is being used as a means of seducing or 
        breaking down the child's inhibitions to sexual abuse or 
        exploitation, is the same whether the child pornography 
        consists of photographic depictions of actual children or 
        visual depictions produced wholly or in part by electronic, 
        mechanical, or other means, including by computer, which are 
        virtually indistinguishable to the unsuspecting viewer from 
        photographic images of actual children;
            (9) the danger to children who are seduced and molested 
        with the aid of child sex pictures is just as great when the 
        child pornographer or child molester uses visual depictions of 
        child sexual activity produced wholly or in part by electronic, 
        mechanical, or other means, including by computer, as when the 
        material consists of unretouched photographic images of actual 
        children engaging in sexually explicit conduct;
            (10)(A) the existence of and traffic in child pornographic 
        images creates the potential for many types of harm in the 
        community and presents a clear and present danger to all 
        children; and
            (B) it inflames the desires of child molesters, pedophiles, 
        and child pornographers who prey on children, thereby 
        increasing the creation and distribution of child pornography 
        and the sexual abuse and exploitation of actual children who 
        are victimized as a result of the existence and use of these 
        materials;
            (11)(A) the sexualization and eroticization of minors 
        through any form of child pornographic images has a deleterious 
        effect on all children by encouraging a societal perception of 
        children as sexual objects and leading to further sexual abuse 
        and exploitation of them; and
            (B) this sexualization of minors creates an unwholesome 
        environment which affects the psychological, mental and 
        emotional development of children and undermines the efforts of 
        parents and families to encourage the sound mental, moral and 
        emotional development of children;
            (12) prohibiting the possession and viewing of child 
        pornography will encourage the possessors of such material to 
        rid themselves of or destroy the material, thereby helping to 
        protect the victims of child pornography and to eliminate the 
        market for the sexual exploitative use of children; and
            (13) the elimination of child pornography and the 
        protection of children from sexual exploitation provide a 
        compelling governmental interest for prohibiting the 
        production, distribution, possession, sale, or viewing of 
        visual depictions of children engaging in sexually explicit 
        conduct, including both photographic images of actual children 
        engaging in such conduct and depictions produced by computer or 
        other means which are virtually indistinguishable to the 
        unsuspecting viewer from photographic images of actual children 
        engaging in such conduct.

SEC. 3. DEFINITIONS.

    Section 2256 of title 18, United States Code, is amended--
            (1) in paragraph (5), by inserting before the semicolon the 
        following: ``, and data stored on computer disk or by 
        electronic means which is capable of conversion into a visual 
        image'';
            (2) in paragraph (6), by striking ``and'';
            (3) in paragraph (7), by striking the period and inserting 
        ``; and''; and
            (4) by adding at the end the following new paragraph:
            ``(8) `child pornography' means any visual depiction, 
        including any photograph, film, video, picture, or computer or 
        computer-generated image or picture, whether made or produced 
        by electronic, mechanical, or other means, of sexually explicit 
        conduct, where--
                    ``(A) the production of such visual depiction 
                involves the use of a minor engaging in sexually 
                explicit conduct;
                    ``(B) such visual depiction is, or appears to be, 
                of a minor engaging in sexually explicit conduct; or
                    ``(C) such visual depiction is advertised, 
                promoted, presented, described, or distributed in such 
                a manner that conveys the impression that the material 
                is or contains a visual depiction of a minor engaging 
                in sexually explicit conduct.''.
                    ``(D) such visual depiction is advertised, 
                promoted, presented, described, or distributed in such 
                a manner that conveys the impression that the material 
                is or contains a visual depiction of a minor engaging 
                in sexually explicit conduct; and
          ``(9) `identifiable minor'--
                    ``(A) means a person--
                            ``(i)(I) who was a minor at the time the 
                        visual depiction was created, adapted, or 
                        modified; or
                            ``(II) whose image as a minor was used in 
                        creating, adapting, or modifying the visual 
                        depiction; and
                            ``(ii) who is recognizable as an actual 
                        person by the person's face, likeness, or other 
                        distinguishing characteristic, such as a unique 
                        birthmark or other recognizable feature; and
                    ``(B) shall not be construed to require proof of 
                the actual identity of the identifiable minor.''.

SEC. 4. PROHIBITED ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR 
              CONTAINING CHILD PORNOGRAPHY.

    (a) In General.--Chapter 110 of title 18, United States Code, is 
amended by adding after section 2252 the following:
``Sec. 2252A. Certain activities relating to material constituting or 
              containing child pornography
    ``(a) Any person who--
            ``(1) knowingly mails, or transports or ships in interstate 
        or foreign commerce by any means, including by computer, any 
        child pornography;
            ``(2) knowingly receives or distributes--
                    ``(A) any child pornography that has been mailed, 
                or shipped or transported in interstate or foreign 
                commerce by any means, including by computer; or
                    ``(B) any material that contains child pornography 
                that has been mailed, or shipped or transported in 
                interstate or foreign commerce by any means, including 
                by computer;
            ``(3) knowingly reproduces any child pornography for 
        distribution through the mails, or in interstate or foreign 
        commerce by any means, including by computer;
            ``(4) either--
                    ``(A) in the special maritime and territorial 
                jurisdiction of the United States, or on any land or 
                building owned by, leased to, or otherwise used by or 
                under the control of the United States Government, or 
                in the Indian country (as defined in section 1151), 
                knowingly sells or possesses with the intent to sell 
                any child pornography; or
                    ``(B) knowingly sells or possesses with the intent 
                to sell any child pornography that has been mailed, or 
                shipped or transported in interstate or foreign 
                commerce by any means, including by computer, or that 
                was produced using materials that have been mailed, or 
                shipped or transported in interstate or foreign 
                commerce by any means, including by computer; or
            ``(5) either--
                    ``(A) in the special maritime and territorial 
                jurisdiction of the United States, or on any land or 
                building owned by, leased to, or otherwise used by or 
                under the control of the United States Government, or 
                in the Indian country (as defined in section 1151), 
                knowingly possesses 3 or more books, magazines, 
                periodicals, films, videotapes, or other material which 
                contain any visual depiction of child pornography, or 
                any book, magazine, periodical, film, videotape, 
                computer disk, or any other material that contains 3 or 
                more images of child pornography; or
                    ``(B) knowingly possesses 3 or more books, 
                magazines, periodicals, films, videotapes, or other 
                material which contain any visual depiction of child 
                pornography, or any book, magazine, periodical, film, 
                videotape, computer disk, or any other material that 
                contains 3 or more images of child pornography that has 
                been mailed, or shipped or transported in interstate or 
                foreign commerce by any means, including by computer, 
                or that was produced using materials that have been 
                mailed, or shipped or transported in interstate or 
                foreign commerce by any means, including by computer,
shall be punished as provided in subsection (b).
    ``(b)(1) Whoever violates, or attempts or conspires to violate, 
paragraphs (1), (2), (3), or (4) of subsection (a) shall be fined under 
this title or imprisoned not more than 15 years, or both, but, if such 
person has a prior conviction under this chapter or chapter 109A, or 
under the laws of any State relating to aggravated sexual abuse, sexual 
abuse, or abusive sexual conduct involving a minor or ward, or the 
production, possession, receipt, mailing, sale, distribution, shipment, 
or transportation of child pornography, such person shall be fined 
under this title and imprisoned for not less than 5 years nor more than 
30 years.
    ``(2) Whoever violates, or attempts or conspires to violate, 
subsection (a)(5) shall be fined under this title or imprisoned not 
more than 5 years, or both, but, if such person has a prior conviction 
under this chapter or chapter 109A, or under the laws of any State 
relating to the possession of child pornography, such person shall be 
fined under this title and imprisoned for not less than 2 years nor 
more than 10 years.
    ``(c) It shall be an affirmative defense to a charge of violating 
paragraphs (1), (2), (3), or (4) of subsection (a) that--
            ``(1) the alleged child pornography was produced using an 
        actual person or persons engaging in sexually explicit conduct;
            ``(2) each such person was an adult at the time the 
        material was produced; and
            ``(3) the defendant did not advertise, promote, present, 
        describe, or distribute the material in such a manner as to 
        convey the impression that it is or contains a visual depiction 
        of a minor engaging in sexually explicit conduct.''.
    (b) Technical Amendment.--The table of sections for chapter 110 of 
title 18, United States Code, is amended by adding after the item 
relating to section 2252 the following:

``2252A. Certain activities relating to material constituting or 
                            containing child pornography.''.

SEC. 5. PENALTIES FOR SEXUAL EXPLOITATION OF CHILDREN.

    Section 2251(d) of title 18, United States Code, is amended to read 
as follows:
    ``(d) Any individual who violates, or attempts or conspires to 
violate, this section shall be fined under this title or imprisoned not 
less than 10 years nor more than 20 years, and both, but if such person 
has one prior conviction under this chapter or chapter 109A, or under 
the laws of any State relating to the sexual exploitation of children, 
such person shall be fined under this title and imprisoned for not less 
than 15 years nor more than 30 years, but if such person has 2 or more 
prior convictions under this chapter of chapter 109A, or under the laws 
of any State relating to the sexual exploitation of children, such 
person shall be fined under this title and imprisoned not less than 30 
years nor more than life. Any organization that violates, or attempts 
or conspires to violate, this section shall be fined under this title. 
Whoever, in the course of an offense under this section, engages in 
conduct that results in the death of a person, shall be punished by 
death or imprisoned for any term of years or for life.''.

SEC. 6. MATERIAL INVOLVING SEXUAL EXPLOITATION OF MINORS.

    Section 2252 of title 18, United States Code, is amended--
            (1) in subparagraphs (A) and (B) of subsection (a)(4), 
        after ``3 or more books, magazines, periodicals, films, 
        videotapes, or other material which contain any visual 
        depiction'' by adding ``or any book, magazine, periodical, 
        film, videotape, or other material which contains 3 or more 
        visual depictions''; and
            (2) by striking subsection (b) and inserting the following:
    ``(b)(1) Whoever violates, or attempts or conspires to violate, 
paragraphs (1), (2), or (3) of subsection (a) shall be fined under this 
title or imprisoned not more than 15 years, or both, but if such person 
has a prior conviction under this chapter or chapter 109A, or under the 
laws of any State relating to aggravated sexual abuse, sexual abuse, or 
abusive sexual conduct involving a minor or ward, or the production, 
possession, receipt, mailing, sale, distribution, shipment, or 
transportation of child pornography, such person shall be fined under 
this title and imprisoned for not less than 5 years nor more than 30 
years.
    ``(2) Whoever violates, or attempts or conspires to violate, 
paragraph (4) of subsection (a) shall be fined under this title or 
imprisoned not more than 5 years, or both, but if such person has a 
prior conviction under this chapter or chapter 109A, or under the laws 
of any State relating to the possession of child pornography, such 
person shall be fined under this title and imprisoned for not less than 
2 years nor more than 10 years.''.

SEC. 7. PRIVACY PROTECTION ACT AMENDMENTS.

    Section 101 of the Privacy Protection Act of 1980 (42 U.S.C. 
2000aa) is amended--
            (1) in subsection (a)(1), by inserting before the 
        parenthesis at the end the following: ``, or if the offense 
        involves the production, possession, receipt, mailing, sale, 
        distribution, shipment, or transportation of child pornography, 
        the sexual exploitation of children, or the sale or purchase of 
        children under section 2251, 2251A, 2252, 2252A, or 2252B of 
        title 18, United States Code''; and
            (2) in subsection (b)(1), by inserting before the 
        parenthesis at the end the following: ``, or if the offense 
        involves the production, possession, receipt, mailing, sale, 
        distribution, shipment, or transportation of child pornography, 
        the sexual exploitation of children, or the sale or purchase of 
        children under section 2251, 2251A, 2252, 2252A, or 2252B of 
        title 18, United States Code''.

SEC. 8. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act, 
the amendments made by this Act, and the application of such to any 
other person or circumstance shall not be affected thereby.

SEC. 9. PROHIBITED ACTIVITIES RELATING TO MATERIAL DEPICTING THE SEXUAL 
              EXPLOITATION OF MINORS.

    (a) In General.--Chapter 110 of title 18, United States Code, is 
amended by adding after section 2252A, as added by section 4 of this 
Act, the following:
``Sec. 2252B. Certain activities relating to material depicting the 
              sexual exploitation of minors
    ``(a) Any person who--
            ``(1) knowingly mails, or transports or ships in interstate 
        or foreign commerce by any means, including by computer, any 
        visual depiction, if such visual depiction has been created, 
        adapted, or modified to appear that an identifiable minor is 
        engaged in sexually explicit conduct;
            ``(2) knowingly receives or distributes any visual 
        depiction or any material that contains a visual depiction that 
        has been mailed, or shipped or transported in interstate or 
        foreign commerce by any means, including by computer, if such 
        visual depiction has been created, adapted, or modified to 
        appear that an identifiable minor is engaged in sexually 
        explicit conduct;
            ``(3) knowingly reproduces any visual depiction for 
        distribution through the mails, or in interstate or foreign 
        commerce by any means, including by computer, if such visual 
        depiction has been created, adapted, or modified to appear that 
        an identifiable minor is engaged in sexually explicit conduct;
            ``(4) either--
                    ``(A) in the special maritime and territorial 
                jurisdiction of the United States, or on any land or 
                building owned by, leased to, or otherwise used by or 
                under the control of the United States Government, or 
                in the Indian country (as defined in section 1151), 
                knowingly sells or possesses with the intent to sell 
                any visual depiction; or
                    ``(B) knowingly sells or possesses with the intent 
                to sell any visual depiction that has been mailed, or 
                shipped or transported in interstate or foreign 
                commerce by any means, including computer, or that was 
                produced using materials that have been mailed, or 
                shipped or transported in interstate commerce by any 
                means, including by computer;
        if such visual depiction has been created, adapted, or modified 
        to appear that an identifiable minor is engaged in sexually 
        explicit conduct; or
            ``(5) either--
                    ``(A) in the special maritime and territorial 
                jurisdiction of the United States, or on any land or 
                building owned by, leased to, or otherwise used by or 
                under the control of the United States Government, or 
                in the Indian country (as defined in section 1151), 
                knowingly possesses 3 or more books, magazines, 
                periodicals, films, videotapes, or other material which 
                contain any visual depiction, or any book, magazine, 
                periodical, film, videotape, computer disk, or any 
                other material that contains 3 or more visual 
                depictions; or
                    ``(B) knowingly possesses 3 or more books, 
                magazines, periodicals, films, videotapes, or other 
                material which contain any visual depiction, or any 
                book, magazine, periodical, film, videotape, computer 
                disk, or any other material that contains 3 or more 
                visual depictions that has been mailed, or shipped or 
                transported in interstate or foreign commerce by any 
                means, including by computer;
        if such visual depiction has been created, adapted, or modified 
        to appear that an identifiable minor is engaged in sexually 
        explicit conduct;
shall be punished as provided in subsection (b).
    ``(b)(1) Whoever violates, or attempts or conspires to violate, 
paragraph (1), (2), (3), or (4) of subsection (a) shall be fined under 
this title or imprisoned not more than 15 years, or both, but, if such 
person has a prior conviction under this chapter or chapter 109A, or 
under the laws of any State relating to the production, possession, 
receipt, mailing, sale, distribution, shipment, or transportation of a 
visual depiction that would be prohibited under this chapter if it had 
occurred within the special maritime and territorial jurisdiction of 
the United States, such person shall be fined under this title and 
imprisoned for not less than 5 years nor more than 30 years.
    ``(2) Whoever violates, or attempts or conspires to violate, 
subsection (a)(5) shall be fined under this title or imprisoned not 
more than 5 years, or both, but, if such person has a prior conviction 
under this chapter or chapter 109A, or under the laws of any State 
relating to the production, possession, receipt, mailing, sale, 
distribution, shipment, or transportation of a visual depiction that 
would be prohibited under this chapter if it had occurred within the 
special maritime and territorial jurisdiction of the United States, 
such person shall be fined under this title and imprisoned for not less 
than 2 years nor more than 10 years.''.
    (b) Clerical Amendment.--The table of sections for chapter 110 of 
title 18, United States Code, is amended by adding after the item for 
section 2252A the following:

``2252B. Certain activities relating to material depicting the sexual 
                            exploitation of minors.''.
    (c) Definition.--Section 2256 of title 18, United States Code, as 
amended by section 3 of this Act, is amended--
            (1) in paragraph (7), by striking ``and'';
            (2) in paragraph (8), by striking the period and inserting 
        ``; and''; and
            (3) by adding at the end the following new paragraph:
            ``(9) `identifiable minor'--
                    ``(A) means a person who--
                            ``(i) was a minor at the time the visual 
                        depiction was created or at the time the 
                        person's image was captured on the visual 
                        medium used in creating, modifying, or adapting 
                        such visual depiction; and
                            ``(ii) is recognizable in the visual 
                        depiction as an actual person by the person's 
                        likeness or other distinguishing physical 
                        characteristic, such as a unique birthmark or 
                        other recognizable feature; and
                    ``(B) shall not be construed to require proof of 
                the actual identity of the minor.''.

SEC. 10. AMBER HAGERMAN CHILD PROTECTION ACT OF 1996.

    (a) Short Title.--This section may be cited as the ``Amber Hagerman 
Child Protection Act of 1996''.
    (b) Aggravated Sexual Abuse of a Minor.--Section 2241(c) of title 
18, United States Code, is amended--
            (1) by inserting ``crosses a State line with intent to 
        engage in a sexual act with a person who has not attained the 
        age of 12 years, or'' after ``Whoever''; and
            (2) by adding at the end the following: ``If the defendant 
        has previously been convicted of another Federal offense under 
        this subsection or under section 2243(a), or of a State offense 
        that would have been an offense under either such provision had 
        the offense occurred in a Federal prison, unless the death 
        penalty is imposed, the defendant shall be sentenced to life in 
        prison.''.
    (c) Sexual Abuse of a Minor.--Section 2243(a) of title 18, United 
States Code, is amended--
            (1) by inserting ``crosses a State line with intent to 
        engage in a sexual act with a person who, or'' after 
        ``Whoever''; and
            (2) by adding at the end the following: ``If the defendant 
        has previously been convicted of another Federal offense under 
        this subsection or under section 2241(c), or of a State offense 
        that would have been an offense under either such provision had 
        the offense occurred in a Federal prison, unless the death 
        penalty is imposed, the defendant shall be sentenced to life in 
        prison.''.
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