Lawmakers Rework Child Porn Bill

WASHINGTON -- The U.S. House of Representatives overwhelmingly approved legislation Tuesday to close a loophole left open by a recent U.S. Supreme Court ruling involving the trafficking of child pornography.

In April, the court struck down parts of a federal child pornography law that prohibited creating, distributing or owning “virtual” images of young children engaged in sexual acts. The decision stated that an offending image could not be outlawed if a computer-generated image was “indistinguishable” from the real thing.

The court feared that films such as “American Beauty” or “Traffic,” which depicted adult actors in juvenile sexual situations, would be banned under the law, even though they should be protected under the 1st Amendment. Congress fought back by examining the high court’s language and using it to craft the Child Obscenity and Pornography Prevention Act. The bill, introduced in early May, uses the legal principle of “affirmative defense” to make prosecutions against traffickers and pedophiles easier, proponents say.

Like other laws for statutory rape and slander, the principle of “affirmative defense” is employed to place the burden of proof on the defense. Child pornography that is “virtually indistinguishable” from what is real would be illegal, proponents say, unless the defense can prove that the offending images were created by computer or by using adult actors.

The bill, which passed 413 to 8, defines child pornography as including “a computer image or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” Prohibited images would include those of minors engaged in sexual or oral intercourse, bestiality, masturbation or masochism.

Twenty years ago, the computer technology to disguise pictures of real children being abused or exploited by distorting the image did not exist. But now a few taps on a keyboard can make it difficult for experts or juries to determine whether the child depicted is real or fabricated.

Still, the public threat from what lawmakers and child-welfare advocates call “kiddie porn” is very real.

Rep. Lamar S. Smith (R-Texas), the bill’s main sponsor, noted that the government has already seen examples of Internet pornographers taking advantage of the Supreme Court’s decision. He quoted a Web site that invited child pornographers to fire up their computers: “With the law by our side, we are embarking on a marvelous journey--by whetting the appetites of pedophiles everywhere,” the site says.

“This is precisely what we don’t want,” Smith said, citing statistics showing that 77% of molesters of young boys and 87% of molesters of young girls admitted to habitually using pornography.

The court’s ruling did outline a method to prosecute offenders: If an image is found obscene, the 1st Amendment would not protect it as free speech. But prosecuting such cases is difficult, legal experts say, and proving that an image or work is “patently offensive” invites all manner of legal interpretation, hamstringing convictions.

Many legislators were optimistic on Tuesday that the bill would meet constitutional muster. But Rep. Robert C. Scott (D-Va.), one of eight legislators who voted no, said the bill “turns the 1st Amendment upside down.”

Lee Tien, a lawyer for the Electronic Frontier Foundation, said the resolution is constitutionally dubious. The category of child pornography exists because children are harmed during the production process, he argued, but the creative process is sacrosanct.

Tien said existing laws against child pornography are sufficient.

Yet prosecutions have become increasingly difficult since the April ruling, lawmakers said. The government has successfully identified fewer than 100 children in computerized images, resulting in lost prosecutions, said Rep. F. James Sensenbrenner Jr. (R-Wis.). The bill now goes to the Senate, and the Bush administration has said it will support the legislation.