Ruling Narrows the Scope of Child Pornography Law

A federal judge on Friday narrowed the scope of a tough child pornography law, ruling that two producers charged with hiring sex film star Traci Lords can argue that they had no way of knowing the actress was under 18.

U.S. District Judge J. Spencer Letts rejected the government’s contention that the law, recently amended to include children as old as 17, does not allow producers a defense when they have taken reasonable precautions against hiring minors.

“To allow an employer to be imprisoned and severely fined based upon a factual error, which might have been the product of trickery and deception, puts a considerable twist on the basic notions of fairness,” the Los Angeles judge said in a ruling that federal prosecutors predicted would make future child pornography prosecutions more difficult.

Child Protection Act

The so-called “strict liability” provision of the federal Child Protection Act, first adopted in 1977 and strengthened in 1984, has made it an easier prosecution tool than most state child pornography laws, which require proof that pornographers knew they had hired a minor.

Letts, ruling in an indictment against producers Ronald Kantor and Rupert MacNee, conceded that the government is not required to prove that the producers knew Lords was only 16 when she starred in their film, “Those Young Girls.”

However, the two men are not precluded from raising a defense that they believed the actress to be at least 20, and government prosecutors say that effectively means they will have to prove the producers knew their star was underage.

“I fear that the judge has gutted the Child Protection Act, at least for pubescent females,” U.S. Atty. Robert C. Bonner said of the ruling.

‘Quite Disturbing’

“The concern is that, if allowed to stand, the pornography industry is going to be able to use and exploit females that are under 18, so long as they’re pubescent, and that’s quite disturbing.”

The attorney for the producers, John Weston, said he believed that the judge should have gone even further, declaring the entire statute unconstitutional. Both sides said they would consider an appeal.

The producers claim that Lords, one of the nation’s leading sex film stars until revelations last year that she had been underage in most of her films, looked very much like an adult, had already appeared in a wide variety of adult-oriented films and magazines and presented a driver’s license indicating that she was 20.

Their lawyers, Weston and Anthony Glassman, argue that the law’s prohibitions against even simulated sex may have broad First Amendment implications for all film makers--even “Romeo and Juliet” might be prohibited, they contend, if teen-age actors were employed--and because it imposes harsh criminal penalties against defendants who may not have known they were committing a crime.

Face Up to 10 Years

The producers have also argued that the broad scope of the statute will have a chilling effect on film makers, causing them to avoid hiring all young-looking actors or making sexually explicit films for fear of mistakenly hiring a minor. The two men face up to 10 years in prison if convicted on the charges.

Letts agreed that the law may be unconstitutionally broad, particularly since recent amendments have raised the minimum age from 16 to 18.

“Major motion pictures intended for mass distribution may call for the simulation of sexual intercourse, by characters portraying older teen-agers, in roles which are otherwise not generally considered pornographic,” the judge observed.

“When young people have reached an age where some forms of sexual intimacy can no longer be considered unnatural as experienced in their private lives, it becomes increasingly likely that some form of visual depiction, short of pornography . . . will become part of serious artistic works,” the judge said.

Legitimate Challenge

In fact, Letts said he could only “reluctantly conclude” that the statute itself should not be struck down, and only because the U.S. Supreme Court appears to have said that only a clearly non-pornographic film or publication can be considered as a legitimate challenge to the law.

But Letts did say the producers should not be precluded from arguing that they were ignorant of a minor’s true age.

“A performer’s age . . . cannot be determined by simple examination of the performer’s appearance,” the judge said. “There is no way even to begin to obtain objective verification of age without some information about date and place of birth,” and performers themselves would have “every incentive to falsify the information convincingly.”

Letts set a Jan. 5 trial date for the case, the first prosecution in the country against commercial film producers under federal child pornography laws.