Senate Approves New Child Porn Bill: The U.S. Senate Monday afternoon passed a new child pornography bill designed to overcome the Supreme Court objections that struck down a previous effort by Congress to ban computer-generated child pornography images. The House has yet to pass companion or similar legislation. In April of last year, the court ruled that Congress' 1996 law banning virtual child pornography was a violation of free speech rights. The 6-3 decision striking down the law was written by Justice Anthony Kennedy, who said the statute was too broad and was unconstitutional. The high court rejected arguments by the Department of Justice that virtual child pornography was directly related to child sexual abuse. The Court said the First Amendment protects pornographers that produce images that only appear to have children engaging in sexual acts. The new legislation, sponsored by Orrin Hatch (R.-Utah) and Patrick Leahy (D.-Vt.), hopes to avoid the court objections by not defining computer-generated images as obscene and, instead, prohibits the pandering or solicitation of anything represented to be obscene child pornography.
The bill, which passed on an 84-0 vote, requires the government to prove beyond a reasonable doubt that person charged with producing or distributing child pornography intended others to believe the product was obscene child pornography, which is not protected by the First Amendment. Persons accused under the new law would have to prove that real children were not used in the production of the material.
Interesting.
They've sort of gotten halfway to the finish line this time, only to run headlong into another part of the Constitution. It makes perfectly good sense that the intent of the person would be at issue, and that it is the government's responsibility to prove that the person intended to present what they were doing as child pornography. However, where this bill will run into problems is that it requires the accused to prove that they didn't use real children. Under the concept that you're innocent until proven guilty ... HAHAHA HAHAHA! Oh, my goodness. Pardon me; the idea that this actually exists as a concept in American law these days always makes me laugh.
In any event.
In theory, since the accused is supposedly innocent until proven guilty, it should be the government's responsibility to prove that virtual children were not used in the production of the material, that real children were actually used and harmed in the making of the material. In practice, especially with crimes of this nature, the accused usually winds up having to prove that they didn't do what they're accused of doing.
And then nobody believes them anyway.
In any event, Leahy is also right when he objects to the "intent" provision -- which is, as noted above, the strongest part of this bill. There are artistically legitimate reasons for presenting something as if it were real. For example, under those laws, the film "Pretty Baby" would be utterly and absolutely impossible to produce, no matter what you did. You simply could not use a 12-year-old in any such film without running afoul of the law, despite the fact that no child would have been harmed in the making of it. (For that matter, a fact-based documentary about child prostitution might well run into problems, despite a lack of salacious intent.)
I can appreciate law enforcement's difficulty in determining what is real and what isn't. They don't want to have to make that effort. And I can appreciate Congress' attempts to help them.
I just don't think it's going to work this time either.
Posted by iain at February 25, 2003 06:22 PMComments
