S. Rept. 108-2 - the Protect Act of 2003, 2003-02-11
Date | 11 February 2003 |
Type of Document | House Report |
Issuer | Committee on the Judiciary |
19–010
Calendar No. 7
108
TH
C
ONGRESS
R
EPORT
" !
SENATE
1st Session 108–2
THE PROTECT ACT OF 2003
F
EBRUARY
11, 2003.—Ordered to be printed
Mr. H
ATCH
, from the Committee on the Judiciary,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 151]
The Committee on the Judiciary, to which was referred the bill
(S. 151) to amend title 18, United States Code, with respect to the
sexual exploitation of children, and for other purposes, having con-
sidered the same, reports favorably thereon, with amendments, and
recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose ........................................................................................................... 1
II. Legislative history ......................................................................................... 2
III. Discussion ....................................................................................................... 3
IV. Vote of the Committee ................................................................................... 11
V. Section-by-section analysis ............................................................................ 12
VI. Cost estimate .................................................................................................. 15
VII. Regulatory impact statement ........................................................................ 15
VIII. Additional views ............................................................................................. 16
IX. Changes in existing law ................................................................................ 37
I. P
URPOSE
The purpose of S. 151, the Prosecutorial Remedies and Tools
Against the Exploitation of Children Today Act or ‘‘PROTECT Act
of 2003,’’ is to restore the government’s ability to prosecute child
pornography offenses successfully. The bill, as amended and re-
ported by the Senate Judiciary Committee, would improve the pros-
ecution of child pornography offenses by: (1) creating a new defini-
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2
tion of ‘‘identifiable minor’’ that would include images that are ‘‘vir-
tually indistinguishable’’ from actual children; (2) creating an abso-
lute affirmative defense for any pornographic image that was not
produced using any actual children; (3) creating a new offense for
certain offers to buy or sell child pornography; (4) creating a new
offense for obscene child pornography; (5) creating a new civil cause
of action for those aggrieved by the production, distribution or pos-
session of child pornography; and (6) expanding the categories of
sexually explicit images covered by existing record keeping require-
ments. S. 151 also would accomplish several other changes in exist-
ing law to aid in the investigation and prosecution of child pornog-
raphy offenses, such as creating extraterritorial jurisdiction and re-
quiring that additional prosecutors be assigned to focus on these
crimes.
II. L
EGISLATIVE
H
ISTORY
S. 151 was introduced in the 108th Congress by Senator Orrin
Hatch on January 13, 2003. Senator Leahy was the principal co-
sponsor and five other Senators joined as cosponsors, Senators Ben-
nett, Grassley, DeWine, Edwards, Schumer and Shelby. The bill
was referred to the Committee on the Judiciary. The Judiciary
Committee met in executive session, with a quorum present, to
consider S. 151 on January 30, 2003. Two amendments were pro-
posed and adopted. The first was offered by Senators Hatch and
Leahy; the second was offered by Senator Hatch. The Hatch-Leahy
amendment was approved by unanimous consent. The Hatch
amendment was approved by voice vote, with Senator Leahy noting
his objection to it. The bill, as amended, was approved by the Judi-
ciary Committee by voice vote, and ordered favorably reported to
the Senate.
S. 151 previously had been introduced in the 107th Congress by
Senator Orrin Hatch on May 15, 2002, as S. 2520. Senator Leahy
was the principal cosponsor and seven other Senators joined as co-
sponsors, Senators Sessions, Hutchinson, Brownback, Grassley,
DeWine, Edwards, Bennett, and Lincoln. The bill was referred to
the Committee on the Judiciary.
The Judiciary Committee held a hearing on S. 2520 on October
2, 2002, and heard testimony from Daniel P. Collins, Associate
Deputy Attorney General and Chief Privacy Officer, United States
Department of Justice; Frederick Schauer, Professor of Law, John
F. Kennedy School of Government, Harvard University; Anne M.
Coughlin, Professor of Law, University of Virginia School of Law;
and Daniel S. Armagh, Director, Legal Resource Division, National
Center for Missing and Exploited Children. At that time, the Com-
mittee also considered the evidence and testimony presented on
June 4, 1996, during the hearing on the Child Pornography Preven-
tion Act of 1996, detailing the problems of child pornography and
the technological changes in the production and dissemination of
these materials.
The Judiciary Committee met in executive session to consider S.
2520 on November 14, 2002, during the post-election, ‘‘lame duck’’
session of the 107th Congress. A substitute amendment offered by
Senators Hatch and Leahy was approved by unanimous consent, as
was an additional amendment offered by Senator Leahy. Two other
amendments by Senator Hatch were approved by the Judiciary
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3
Committee, although Senator Leahy noted his objection to these.
The bill, as amended, was ordered favorably reported to the Senate.
S. 2520, as reported by the Judiciary Committee, was approved
by the Senate by unanimous consent in the evening of November
14, 2002. The House of Representatives had passed a similar bill,
H.R. 4623, on June 25, 2002. Because that bill was non-identical
to S. 2520, however, neither version could be approved by both
houses before the 107th Congress adjourned.
III. D
ISCUSSION
A. Background and history: The Child Pornography Prevention Act
of 1996
In 1996, the Judiciary Committee held hearings and conducted
extensive research into the problem of child pornography. The
Committee concluded that the problem was immense. Child pornog-
raphy generated huge sums of illicit money. Worse yet, it played
a central role in the exploitation and sexual abuse of children. The
Committee found that child pornography results in the actual
abuse of children in two ways. First, ‘‘[c]hild pornography stimu-
lates the sexual appetites and encourages the activities of child mo-
lesters and pedophiles, who use it to feed their sexual fantasies.’’
S. Rep. No. 104–358, pp. 12–13 (1996). Second, ‘‘[c]hild molesters
and pedophiles use child pornography to convince potential victims
that the depicted sexual activity is normal practice; that other chil-
dren regularly participate in sexual activities with adults or peers.’’
Id. at 13–14.
The harms caused by child pornography were not new. By 1996,
however, technology had changed in a manner that materially im-
pacted the enforcement of child pornography laws. The Committee
found that ‘‘[c]omputers can also be used to alter sexually explicit
photographs, films and videos in such a way as to make it virtually
impossible for prosecutors to identify individuals, or to prove that
the offending material was produced using children.’’ Id. at 16. In
response to this concern, the Committee approved the Child Por-
nography Prevention Act of 1996 (‘‘CPPA’’) and expanded then-ex-
isting law, which only prohibited sexually explicit depictions of ac-
tual children, to include depictions that ‘‘appear to be’’ of actual
children. After approval by both the Senate and the House of Rep-
resentatives, the President signed the CPPA into law on September
30, 1996.
B. Ashcroft v. Free Speech Coalition
The CPPA tackled the problem of technology and child pornog-
raphy by prohibiting the possession, production or distribution of
material that ‘‘appears to be’’ child pornography. This is so whether
the material was actually produced entirely on a computer (‘‘virtual
porn’’), by using technology to alter an image of a real child to
make the child unidentifiable, or by using youthful-looking adults.
Four circuit court of appeals had sustained the constitutionality of
the CPPA, United States v. Fox, 248 F.3d 394 (5th Cir. 2001);
United States v. Mento, 231 F.3d 912 (4th Cir. 2000); United States
v. Acheson, 195 F.3d 645 (11th Cir. 1999); United States v. Hilton,
167 F.3d 61 (1st Cir. 1999), prior to a ruling in the Ninth Circuit
that invalidated key provisions of the CPPA under the First
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