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Child Pornography Prevention Act


P.L. 104-208  MAKING OMNIBUS CONSOLIDATED APPROPRIATIONS FOR FISCAL YEAR 1997 

H.R. 3610  (H. Rept. 104-863)


SEC. 121. This section may be cited as the `Child Pornography Prevention Act of
 1996'. 

Subsection 1. Findings

Congress finds that-- 

          (1) the use of children in the production of sexually explicit materi
al, including
          photographs, films, videos, computer images, and other visual depicti
ons, is a
          form of sexual abuse which can result in physical or psychological ha
rm, or
          both, to the children involved;

          (2) where children are used in its production, child pornography perm
anently
          records the victim's abuse, and its continued existence causes the ch
ild 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 o
ther
          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 `havin
g fun'
          participating in such activity;

          (4) child pornography is often used by pedophiles and child sexual ab
users to
          stimulate and whet their own sexual appetites, and as a model for sex
ual 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 imagining technologies make it poss
ible 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 photogr
aphic
          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 su
ch a way as
               to make it virtually impossible for unsuspecting viewers to iden
tify
               individuals, or to determine if the offending material was produ
ced 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 depicti
ons 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 int
erests,
          since images that are created showing a child's face or other identif
iable
          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 chi
ld molester or
          pedophile using that material to stimulate or whet his own sexual app
etites, 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 c
hildren or
          visual depictions produced wholly or in part by electronic, mechanica
l, or other
          means, including by computer, which are virtually indistinguishable t
o 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 mo
lester uses
          visual depictions of child sexual activity produced wholly or in part
 by
          electronic, mechanical, or other means, including by computer, as whe
n the
          material consists of unretouched photographic images of actual childr
en
          engaging in sexually explicit conduct;

          (10)(A) the existence of and traffic in child pornographic images cre
ates the
          potential for many types of harm in the community and presents a clea
r 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 a
nd
          distribution of child pornography and the sexual abuse and exploitati
on of
          actual children who are victimized as a result of the existence and u
se of these
          materials;

          (11)(A) the sexualization and eroticization of minors through any for
m of child
          pornographic images has a deleterious effect on all children by encou
raging a
          societal perception of children as sexual objects and leading to furt
her sexual
          abuse and exploitation of them; and

          (B) this sexualization of minors creates an unwholesome environment w
hich
          affects the psychological, mental and emotional development of childr
en 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 des
troy 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 child
ren from
          sexual exploitation provide a compelling governmental interest for pr
ohibiting
          the production, distribution, possession, sale, or viewing of visual 
depictions of
          children engaging in sexually explicit conduct, including both photog
raphic
          images of actual children engaging in such conduct and depictions pro
duced by
          computer or other means which are virtually indistinguishable to the
          unsuspecting viewer from photographic images of actual children engag
ing in
          such conduct.

Subsection 2. 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 a semicolo
n; and

          (4) by adding at the end the following new paragraphs:

          `(8) `child pornography' means any visual depiction, including any ph
otograph,
          film, video, picture, or computer or computer-generated image or pict
ure,
          whether made or produced by electronic, mechanical, or other means, o
f
          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 enga
ging in
               sexually explicit conduct;

               `(C) such visual depiction has been created, adapted, or modifie
d to
               appear that an identifiable minor is engaging in sexually explic
it conduct;
               or

               `(D) such visual depiction is advertised, promoted, presented, d
escribed,
               or distributed in such a manner that conveys the impression that
 the
               material is or contains a visual depiction of a minor engaging i
n sexually
               explicit conduct; and

          `(9) `identifiable minor'--

               `(A) means a person--

                    `(i)(I) who was a minor at the time the visual depiction wa
s
                    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 ident
ity of the
               identifiable minor.'.

Subsection 3. Prohibited Activities Relating to Material Constituting or Contai
ning
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, incl
uding by
               computer; or

               `(B) any material that contains child pornography that has been 
mailed,
               or shipped or transported in interstate or foreign commerce by a
ny
               means, including by computer;

          `(3) knowingly reproduces any child pornography for distribution thro
ugh the
          mails, or in interstate or foreign commerce by any means, including b
y
          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 other
wise used
               by or under the control of the United States Government, or in t
he Indian
               country (as defined in section 1151), knowingly sells or possess
es with the
               intent to sell any child pornography; or

               `(B) knowingly sells or possesses with the intent to sell any ch
ild
               pornography that has been mailed, or shipped or transported in i
nterstate
               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, incl
uding 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 other
wise used
               by or under the control of the United States Government, or in t
he Indian
               country (as defined in section 1151), knowingly possesses any bo
ok,
               magazine, periodical, film, videotape, computer disk, or any oth
er
               material that contains 3 or more images of child pornography; or

               `(B) knowingly possesses any book, magazine, periodical, film, v
ideotape,
               computer disk, or any other material that contains 3 or more ima
ges of
               child pornography that has been mailed, or shipped or transporte
d in
               interstate or foreign commerce by any means, including by comput
er, or
               that was produced using materials that have been mailed, or ship
ped or
               transported in interstate or foreign commerce by any means, incl
uding 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 chap
ter 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 product
ion,
     possession, receipt, mailing, sale, distribution, shipment, or transportat
ion of child
     pornography, such person shall be fined under this title and imprisoned fo
r 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 la
ws of any
     State relating to the possession of child pornography, such person shall b
e 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 perso
n or
          persons engaging in sexually explicit conduct;

          `(2) each such person was an adult at the time the material was produ
ced; 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, Uni
ted
States Code, is amended by adding after the item relating to section 2252 the f
ollowing: 

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


Subsection 4. 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 sec
tion shall be
fined under this title or imprisoned not less than 10 years nor more than 20 ye
ars, or 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 yea
rs, but if such
person has 2 or more prior convictions under this chapter or chapter 109A, or u
nder 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 tha
t results in
the death of a person, shall be punished by death or imprisoned for any term of
 years or for
life.'. 

Subsection 5. Material Involving Sexual Exploitation of Minors

Section 2252 of title 18, United States Code, is amended 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 y
ears, or both,
but if such person has a prior conviction under this chapter or chapter 109A, o
r 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, mail
ing, sale,
distribution, shipment, or transportation of child pornography, such person sha
ll be fined
under this title and imprisoned for not less than 5 years nor more than 30 year
s. 

`(2) Whoever violates, or attempts or conspires to violate, paragraph (4) of su
bsection (a)
shall be fined under this title or imprisoned not more than 5 years, or both, b
ut 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 fin
ed under this
title and imprisoned for not less than 2 years nor more than 10 years.'. 

Subsection 6. 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 por
nography,
          the sexual exploitation of children, or the sale or purchase of child
ren under
          section 2251, 2251A, 2252, or 2252A 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 por
nography,
          the sexual exploitation of children, or the sale or purchase of child
ren under
          section 2251, 2251A, 2252, or 2252A of title 18, United States Code'.

Subsection 7. Amber Hagerman Child Protection Act of 1996

(a) SHORT TITLE- This section may be cited as the `Amber Hagerman Child Protect
ion Act
of 1996'. 

(b) AGGRAVATED SEXUAL ABUSE OF A MINOR- Section 2241(c) of title 18, United
States Code, is amended to read as follows: 

`(c) WITH CHILDREN- Whoever crosses a State line with intent to engage in a sex
ual act
with a person who has not attained the age of 12 years, or in the special marit
ime and
territorial jurisdiction of the United States or in a Federal prison, knowingly
 engages in a
sexual act with another person who has not attained the age of 12 years, or kno
wingly
engages in a sexual act under the circumstances described in subsections (a) an
d (b) with
another person who has attained the age of 12 years but has not attained the ag
e of 16
years (and is at least 4 years younger than that person), or attempts to do so,
 shall be fined
under this title, imprisoned for any term of years or life, or both. If the def
endant has
previously been convicted of another Federal offense under this subsection, or 
of a State
offense that would have been an offense under either such provision had the off
ense
occurred in a Federal prison, unless the death penalty is imposed, the defendan
t shall be
sentenced to life in prison.'. 

(c) SEXUAL ABUSE OF A MINOR- Section 2243(a) of title 18, United States Code, i
s
amended by inserting `crosses a State line with intent to engage in a sexual ac
t with a
person who has not attained the age of 12 years, or' after `Whoever'. 

Subsection 8. Severability

If any provision of this Act, including any provision or section of the definit
ion of the term
child pornography, an amendment made by this Act, or the application of such pr
ovision or
amendment to any person or circumstance is held to be unconstitutional, the rem
ainder of
this Act, including any other provision or section of the definition of the ter
m child
pornography, the amendments made by this Act, and the application of such to an
y other
person or circumstance shall not be affected thereby.