Shifting the Paradigm in Child Pornography Criminalization: United States v. Maxwell

I. INTRODUCTION "It is difficult to imagine a more repulsive and cruel act, both to the individual involved and to our Nation, than ensnaring a young person in child pornography. It robs the child of his or her innocence and debases our society."1 Although this is a strong statement, it accurately describes the pernicious plague that child pornography has become. Child pornography is a lucrative,2 underground3 business in which people profit by exploiting children. Furthermore, only pedophiles and child molesters consume child pornography,4 since no other market exists for such images.5 Finally, child pornography unfortunately engenders the creation of more child pornography.6 To the vast majority of Americans, child pornography is a noxious evil.7 This view has bipartisan support among legislators who continually tighten child pornography laws in an effort to eradicate these materials from society.3 Over the years, Congress has tried to stop both the supply and demand for such lurid materials; however, this process has been piecemeal.9 For example, the most recent federal legislation in this area, the Child Pornography Prevention Act of 1996,lo criminalizes the computer production and alteration of child pornography. Although the 1996 Act is a needed addition in the fight against child pornography, it simply redefines the "actus reus"ll element of these crimes as past laws have done. In contrast, the United States Court of Appeals for the Armed Services recently decided a case that broadened the "mens rea"12 requirement in child pornography crimes. This case, United States v. Maxwell,l3 shifted or enlarged the "mens reap or "scienter"14 element of child pornography crimes contained in 18 U.S.C. 2252 15 by adding "belief" as an acceptable mens rea standard. The current interpretation of this section-to be discussed in more detail later in this Note-requires a defendant to have "knowledge" that at least one of the performers involved in sexually explicit conduct is a minor before being criminally liable. By focusing on the mens rea element of child pornography statutes, Congress' intent to eradicate child pornography is better realized. The current interpretation of 18 U.S.C. 2252 requires the government to prove that an individual "knew" he distributed, received or possessed child pornography. Except when images depict a prepubescent child in sexually explicit conduct, the government has an almost insurmountable obstacle in proving that the accused individual had "knowledge" regarding the performers' minority status.ls For example, computer software can morph and alter images so as to make it seem a child is engaging in sexually explicit conduct when one is not,l7 making it almost impossible for the government to prove an individual knew a minor was involved. This burden of proving "knowledge" means that much child pornography depicting adolescent or pubescent minors goes unprosecuted. United States v. Maxwell is significant because it takes a different approach-relaxing the current mens rea standard of knowledge to a less demanding one. In light of United States v. Maxwell, this Note will argue that for 18 U.S.C. 2 225218 to effectively deter this repulsive conduct, a more relaxed mens rea standard of "belief" or "recklessness" is both theoretically justified by public policy and constitutional if properly limited. Although 18 U.S.C. 2252 requires that (1) there be a minor and (2) the minor be engaged in sexually explicit conduct"9 before criminal liability is found,2o this Note will limit its focus to the mens rea requirement concerning the minority status of pornographic performers. Part II of this Note will summarize the relevant history and interaction between obscenity jurisprudence and child pornography jurisprudence as well as congressional action taken in child pornography legislation. Part III will discuss United States v. Maxwell and its reasoning. Part IV will argue that a mens rea standard of "belief" or "recklessness" is theoretically justified for the "use of a minor" element of 2252 and is also constitutional if properly limited. …