Editor’s Note: The stance of Concerned Women for America (CWA) toward child pornography has recently – and wrongly – come under fire. What follows is a memo written by former CWA Chief Counsel Jan LaRue in regards to S. 151, “The Protect Act.”
On April 16, the U.S. Supreme Court announced its ruling in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In an opinion written by Justice Anthony Kennedy, the Court affirmed a decision by the U.S. Court of Appeals for the Ninth Circuit holding the Child Pornography Prevention Act (CPPA) of 1996 “invalid on its face.” The ruling shocked the nation and even outraged some of the most liberal members of Congress.
By a vote of 6-3, the Court struck down 18 U.S.C. 2256 (8)(B), which criminalized a computer-generated image that “appears to be” of a minor engaged in sexually explicit conduct. By a 7-2 vote, in which Justice Sandra Day O’Connor joined, the Court struck down 18 U.S.C. 2256 (8)(D), which criminalized a depiction that “conveys the impression” it is of a minor engaged in sexually explicit conduct – so-called “pseudo” child porn, in which young-looking adults are depicted as children and the material is pandered as child pornography. The section of CPPA that criminalized computer morphed images, 18 U.S.C. 2256 (8) (C), had not been challenged and the Court did not rule on its constitutionality.
Last year, bills were introduced in the House and Senate in attempts to criminalize virtual child porn while complying with the Supreme Court’s ruling in the Free Speech decision. CWA and leaders of other anti-pornography organizations commended the efforts but strongly disagreed with the language of the bills. Our concerns were detailed in a memo that was widely distributed in Congress, co-authored by Jan LaRue, CWA’s chief counsel, Bruce Taylor, president of the National Law Center for Children and Families, and Pat Trueman, former chief of the Child Exploitation and Obscenity Section in the Department of Justice. We also offered alternative bill language to address our concerns. Chief of our concerns was that the bills provided an affirmative defense to a charge of virtual child porn that would effectively codify the Supreme Court’s ruling, thereby legalizing virtual child porn.
On February 24, 2003, the Senate passed S 151, which is co-sponsored by Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vermont). Section 5 of S 151 criminalizes “a computer image, computer generated image, or digital image that is of, or is virtually indistinguishable from that of, an actual minor.” Section 3 (c) (2) provides the problematic affirmative defense. It reads: “It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3), (4), or (5) of subsection (a) that the alleged child pornography was not produced using any actual minor or minors.” This means that if the defendant proves that the material is what the bill criminalizes, the charge will be dismissed – the defendant will walk and be allowed to keep and distribute the very material that Congress is supposedly prohibiting.
Congress should also be mindful that the Court in Ashcroft spoke critically of an affirmative defense that shifts the burden of proof to the defendant.
The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful. An affirmative defense applies only after prosecution has begun, and the speaker must himself prove, on pain of a felony conviction, that his conduct falls within the affirmative defense. Aschroft at 535.
Think about it by way of comparison: Counterfeit currency is illegal. Counterfeit currency isn’t made by using real government plates. It is a serious federal crime because the very existence of counterfeit currency is a threat to our entire economic system. Federal law doesn’t provide an affirmative defense to a charge of counterfeiting that allows the defendant to have the charge dismissed if he proves that real government plates didn’t make the currency. The fact that it isn’t made with real government plates is what makes it counterfeit – the very thing the law is supposed to punish. It would be a colossal waste of time and money to bring a charge of counterfeiting if an affirmative defense allowed the defendant to walk away with the “currency” if he proved it is counterfeit.
Note to Supreme Court: The government has never prosecuted Parker Bros. for creating and distributing Monopoly “currency” nor has it prosecuted anyone for possessing it. That’s because Monopoly currency isn’t “virtually indistinguishable” from real money. And if some over-zealous prosecutor did prosecute Parker Bros., the court would rule as a matter of law that the statute may not be applied to such “currency” and dismiss the case.
S 151 permits the defendant to have the charge dismissed if he proves the material wasn’t made by using a real child – that it was made by a computer – the very thing the bill is supposedly prohibiting.
When Congress passed the Child Pornography Prevention Act of 1996, it was for the purpose of banning virtual child porn. Its very existence burdens investigations and prosecutions of child pornography depicting a real child and because it is dangerous material in the hands of pedophiles. For them, it is an effective tool that facilitates future child sexual abuse and exploitation.
The only way to eliminate virtual child porn and unburden prosecution of real child porn is to make virtual child porn truly illegal by deleting this affirmative defense. Congress should simply narrow the definition of “virtual child porn” to make it expressly clear that it doesn’t include such things as Shakespeare’s writings, Renaissance paintings, cartoons, drawings, and movies such as Titanic. We now have evidence to show the Court that child porn cases are being dismissed if the government can’t identify the child depicted in the image, which is virtually impossible to do with foreign children.
We urge the Senate and House Conference Committee to eliminate this affirmative defense when they finalize the House and Senate versions of the bills. If Congress is truly outraged at the Court’s ruling, it shouldn’t legitimize it by codifying it in a federal statute. Certainly, the effect of the “Protect Act” should accomplish its goal – to protect children and not computer-savvy perverts.