Child Pornography: Side-by-Side Comparison of S. 151 and H.R. 1161, 108th Congress

CRS Report for Congress
Child Pornography: Side-by-Side Comparison
of the Senate-passed and House-passed
Versions of S. 151, 108 Congress
Henry Cohen
Legislative Attorney
American Law Division
In Ashcroft v. Free Speech Coalition, the Supreme Court declared unconstitutional
the federal child pornography statute to the extent that it prohibited material that was1
produced without the use of an actual child. The case held, in other words, that
pornography produced without the use of a minor, whether drawn or painted, computer-
generated, or produced only with adult actors, is protected by the First Amendment, even
if it appears to portray a minor, unless it is obscene.2 In response to this decision, theth3
Senate and House passed differing versions of S. 151, 108 Congress. This report
compares the substantive provisions of these bills.4

1 535 U.S. 234 (2002).
2 “Obscenity,” which is not protected by the First Amendment, is defined by the Supreme Court
as material that appeals to the prurient interest, is patently offensive, and lacks serious literary,
artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24 (1973). Pornography
that uses an actual child is not protected by the First Amendment, even if it meets none of the
three criteria for obscenity.
3 The House-passed bill began as H.R. 1161 and was adopted (except for section 10) as an
amendment (Title V) to H.R. 1104, which the House passed as S. 151.
4 For additional information, see CRS Report 95-406, Child Pornography: Constitutional
Principles and Federal Statutes; CRS Report RL31744, Child Pornography Produced Withoutth
an Actual Child: Constitutionality of 108 Congress Legislation; and CRS Report RS21463,
Child Pornography: Comparison of Selected Provisions of the Senate-passed and House-passedth
Versions of S. 151, 108 Congress, with Brief Comments on their Constitutionality.
Congressional Research Service ˜ The Library of Congress

ProvisionSenate-passed billHouse-passed bill
Title of bill“Prosecutorial Remedies and ToolsTitle V of the “Child Abduction
Against the Exploitation of ChildrenPrevention Act” (§ 1)
Today Act of 2003” or “PROTECT
Act” (§ 1)
FindingsFindings 1 through 9 and the first twoNot in Senate-passed bill: Third
(All findingssentences of Finding 10 in each billsentence of Finding 10, Finding 11,
in the Senate-are substantively identical. Findingsand Finding 12. (§ 501)
passed bill are11-13 of the Senate-passed bill are
in the House-identical to Findings 13-15 of the
passed bill,House-passed bill. (§ 501)
but not vice
Pandering,Section 3 would prohibit advertising,Section 503 would enact 18 U.S.C.
falsepromoting, presenting, distributing, or§ 2252B, which would prohibit
advertisingsoliciting any material in a manner toadvertising, promoting, presenting, or
cause another to believe that it is andescribing any material in a manner to
obscene visual depiction of a minor,cause another to believe that it is child
or is child pornography produced withpornography produced with an actual
an actual minor.child. (“Distributing” and “obscene”
in the Senate-passed bill are not
ProvidingSection 3 would prohibit distributing,Section 505 would prohibit providing
material tooffering, sending, or providing aor showing a person under 16 material
minorsminor (a person under 18) with childthat is obscene or child pornography,
pornography, whether produced withwhether produced with an actual child
an actual child or not, to induce theor not, regardless of purpose.
minor to participate in an illegal
AffirmativeSection 3 would allow a defendant toSection 502(d) would allow a
defense toavoid conviction by proving that eachdefendant to avoid conviction by
childperson used in producing the allegedproving that no person used in
pornographychild pornography was an adult orproducing the alleged child
chargenone was a minor. Proving that nopornography was a minor. Proving
person was a minor would not be anthat no person was a minor would not
affirmative defense in prosecutionsbe an affirmative defense in
involving images of an actual childprosecutions involving images of an
“morphed” to make it appear as if theactual child engaging in sexually
child is engaging in sexually explicitexplicit conduct or an actual child
conduct.“morphed” to make it appear as if he
or she is engaging in sexually explicit

ProvisionSenate-passed billHouse-passed bill
AffirmativeSection 3 provides that a defendantNo provision.
defense noticemay not assert the affirmative defense
requirementthat no person was a minor unless,
absent extraordinary circumstances, he
provides the court and the U.S., no
later than 10 days before trial, with
notice of his intent to assert the
defense and the substance of his
AdmissibilityOn motion of the government, exceptNo provision.
of evidencefor good cause, nonphysical
identifying information, other than
age, of any minor depicted in child
pornography shall not be admissible,
and jury shall be instructed to draw no
inference from the absence of such
ChildSection 5 would define “childSection 502(a) would define “child
pornographypornography” to require the use of anpornography” to include a computer-
with an image “identifiable minor,” and would definegenerated image that is “indistinguish-
indistinguish-“identifiable minor” to include anable” from that of an actual minor. 18
able from thatimage “virtually indistinguishable”U.S.C. § 1466A, which would be
of an actualfrom that of an actual minor.created by section 504, would define
minor“indistinguishable” to mean “virtually
Proof ofSection 5 would provide that proof ofNo provision.
actual identitythe actual identity of a minor shall not
of minorbe required to establish that he is a
minor (under 18).
Definition ofSection 5 would include “simulatedSection 502 would include “simulated
“sexuallysexual intercourse” in the definitionsexual intercourse” in the definition
explicitonly if “lascivious” and only if “theonly if “lascivious” and only if “the
conduct”genitals, breast, or pubic area of anygenitals, breast, or pubic area of any
person is exhibited.”person is exhibited.”
Depictions,Section 6 would enact 18 U.S.C.Section 504 would enact 18 U.S.C.
obscene or§ 2252B, which would prohibit§ 1466B, which would prohibit
otherwise, ofproducing, distributing, receiving, orproducing, distributing, receiving, or
minorspossessing with or without intent topossessing with or without intent to
engaging indistribute, any depiction that appearsdistribute, any depiction that appears
sexuallyto be of a minor engaging in sexuallyto be of a minor engaging in sexually
explicitexplicit conduct, if it is obscene orexplicit conduct, if it is obscene.

conductlacks serious literary, artistic, political,
or scientific value.

ProvisionSenate-passed billHouse-passed bill
AffirmativeDefendant possessed fewer than 3Defendant possessed fewer than 3
defense underimages and promptly destroyed themimages and promptly destroyed them
18 U.S.C.or afforded law enforcement agencyor afforded law enforcement agency
§§ 2252B oraccess to them (substantively the sameaccess to them (substantively the same

1466Bas 18 U.S.C. §§ 2252(c), 2252A(d)).as 18 U.S.C. §§ 2252(c), 2252A(d)).

SentencingThe category of offenses described inThe category of offenses described in
under 18§ 2G2.2 of the Sentencing Guidelines§ 2G2.2 of the Sentencing Guidelines
U.S.C.shall apply unless the Sentencingshall apply unless the Sentencing
§§ 2252B orCommission promulgates higherCommission promulgates higher

1466Bsentencing ranges.sentencing ranges.

Depictions ofNo provision.Section 504 would enact 18 U.S.C.
pre-pubescent§ 1466A, which would prohibit
children,producing, distributing, receiving, or
actual orpossessing with or without intent to
otherwisedistribute, any depiction that is, or is
indistinguishable from, that of a pre-
pubescent child engaging in sexually
explicit conduct.
SentencingNot applicable.The category of offenses described in
under 18§ 2G2.2 of the Sentencing Guidelines
U.S.C.shall apply unless the Sentencing
§ 1466ACommission promulgates higher
sentencing ranges.
Extraterritori-Section 10 would make it a crime toSection 506 would make it a crime to
al productionemploy, use, persuade, induce, entice,employ, use, persuade, induce, entice,
of childor coerce any minor to engage in, oror coerce any minor to engage in, or
pornographyassist another person to engage in, anyassist another person to engage in, any
for distribu-sexually explicit conduct outside ofsexually explicit conduct outside of
tion in thethe U.S., its territories or possession,the U.S., its territories or possession,
United Statesto produce child pornography to beto produce child pornography to be
transported to the U.S., its territoriestransported to the U.S., its territories
or possessions.or possessions.
Record-Section 7 would amend 18 U.S.C.Section 512 would require the
keeping§ 2257, which requires producers ofAttorney General to submit a report to
requirementssexually explicit material to keepCongress detailing the number of
records of performers’ names and datetimes since January 1993 that the
of birth. Section 7 would (1) allowDepartment of Justice has inspected
records to be used in obscenitythe records of any producer of
prosecutions, (2) apply the section tomaterials regulated pursuant to 18
computer-generated and digitalU.S.C. § 2257 and 28 C.F.R. § 75.
images, and (3) increase the possibleThe Attorney General shall indicate
prison sentence for violations of thethe number of violations prosecuted as
section.a result of those inspections.

ProvisionSenate-passed billHouse-passed bill
Service-Section 8 would amend 18 U.S.C.Section 508(a) would amend 18
provider§ 13032, which requires electronicU.S.C. § 13032, which requires
reportingcommunication service providers toelectronic communication service
report child pornography to theproviders to report child pornography
National Center for Missing andto the National Center for Missing and
Exploited Children. Section 8 wouldExploited Children. Section 508(a)
require them to report it to statewould require them to report it to state
officials as well.officials as well.
ContentsSection 9 would amend 18 U.S.C.Section 508(b) would amend 18
disclosure of§ 2702 so that it does not preventU.S.C. § 2702 so that it does not
stored com-electronic communication serviceprevent electronic communication
municationsproviders to report child pornographyservice providers to report child
to the National Center for Missing andpornography to the National Center
Exploited Children. for Missing and Exploited Children.
CivilSection 11 would authorize personsNo provision.
remediesaggrieved by violations of 18 U.S.C.
§ 2252A to sue for injunctive relief,
compensatory and punitive damages,
and attorneys’ and expert witnesses’
EnhancedSection 12 would include obscenitySection 507 would include obscenity
penalties forconvictions among the past crimesconvictions among the past crimes
recidiviststhat would cause a violator of childthat would cause a violator of child
pornography laws to be deemed apornography laws to be deemed a
recidivist. recidivist.
SentencingSection 13 would require theNo provision.
enhancementsSentencing Commission to review,
for interstateand, as appropriate, amend the Federal
travel toSentencing Guidelines to ensure that
engage inpenalties are adequate in cases that
sexual actinvolve interstate travel with intent to
with juvenileviolate 18 U.S.C. § 2423.
AppointmentSection 14(a) would require theNo provision.
of trialAttorney General to appoint 25
attorneysadditional trial attorneys to the Child
Exploitation and Obscenity Section of
the Criminal Division of the
Department of Justice or to U.S.
Attorney’s Offices to prosecute child
pornography crimes.
Report toSection 14(b) would require theSee entry on page 4, describing
CongressionalAttorney General to report to thesection 512, on record-keeping
CommitteesJudiciary Committees on enforcementrequirements.

of federal child pornography laws.

ProvisionSenate-passed billHouse-passed bill
SentencingSection 14(c) would require theNo provision.
GuidelinesSentencing Commission to review,
and, as appropriate, amend the Federal
Sentencing Guidelines applicable to

18 U.S.C. § 2252A(3)(B) and (6).

InterceptionSection 15 would allow judges toSection 511 would allow judges to
of communi-authorize the interception of wire andauthorize the interception of wire and
cationsoral communications in investigatingoral communications in investigating
additional crimes, including childviolations of 18 U.S.C. §§ 1466A and
pornography.1466B, which the House-passed bill
would enact.
InvestigativeSection 16 would allow subpoenasSection 510 would allow subpoenas
authorityissued in an investigation of sexualissued in an investigation of sexual
exploitation or abuse of children toexploitation or abuse of children to
seek additional types of additional types of information.
Severability Section 17 provides that, if anySection 509 provides that, if any
provision of S. 151 is held invalid, theprovision of Title V of S. 151 is held
remainder shall not be affected.invalid, the remainder shall not be