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PART 3: Law Enforcement Recommendations
CHAPTER 3
No clearer measure exists of the radical shift in the issues confronted by the Commission on Obscenity and Pornography in 1970 and those facing this one than the problem of child pornography. In its description of "the industries" producing sexually explicit material the 1970 Commission nowhere mentioned or alluded to child pornography,[387] and its Traffic and Distribution Panel reported that "the taboo against pedophilia... has remained almost inviolate" even in the hardest of "hard-core" materials.[388] The recommendations of the 1970 Commission included repeal of all laws restraining distribution of sexually explicit materials to children; no exception was stated for materials depicting children engaged in sexual conduct.[389]
This Commission, by contrast, has devoted a very substantial proportion of its time and energy to examining the extent and nature of child pornography. Indeed, one set of the Commission's hearings was devoted almost entirely to the problem, while extensive oral and written testimony on the subject was received throughout the year. No aspect of the pornography industry has more occupied the attention of Congress and the general public during the past decade, and this Commission has made a wide range of recommendations for further legislative and public action. The very novelty of child pornography as a matter for public concern, however, requires at least a general overview of the rise of the "kiddie porn" industry, the nature of and the rationale for the governmental response to it, the effects on the children involved, and the contours of the industry's surviving components. That overview must begin with attention to what "child pornography" by definition is and what it is not.
Drawings of children engaged in sexual intercourse with adults date at least from ancient Greece,[390] and a graphic written description of child sexual abuse was to be found in seventeenth century France.[391] Yet although these portrayals or accounts might be deemed "obscene," and although they deeply offend modern sensibilities regarding the rearing and protection of children, they are not "child pornography" in the specific legal and clinical sense that term has acquired over the past fifteen years. As defined by the United States Supreme Court in the 1982 decision, New York v Ferber, the category of "child pornography" is "limited to works that visually depict sexual conduct by children below a specified age."[392] It is clear from the Court's language, and in all statutory and scholarly definitions of the term, that "child pornography" is only appropriate as a description of material depicting real children.[393]
The basis for these limitations is evident from the very nature of the outrage child pornography engenders-anger over the sexual abuse of children used in its production. While concern over "pornography" generally has centered on the impact of sexually explicit materials on the audience, "child pornography" has been defined, and attacked, in terms of its effects on the children who appear in it. Thus, as the Court found in Ferber, the category of "child pornography" is both broader and narrower than that of "obscenity." Broader in that it includes materials which are not "patently offensive," which do not appeal to the "prurient interest of the average individual," and which show children in sexual conduct even as an incidental part of the work (rather than "taken as a whole"),[394] Narrower, however, in that written materials are wholly excluded, as are visual materials which do not show actual children engaged in sexual conduct. Thus a rewrite of Lolita which included graphic descriptions of sexual activity with a young girl could never be "child pornography," nor could a fully explicit film of the novel which starred an adult actress playing the part of the young girl. Such a film which used a minor actress, however, could be "child pornography" even if not "patently offensive" by prevailing community standards, and (although this is less clear) even if it possessed serious artistic, literary, scientific or educational value.[395] In the context of "child pornography," alone among all the issues considered by the Commission, the definition of "obscenity" proclaimed in Miller v. California[396] and its progeny is wholly irrelevant. Indeed, the advent of "kiddie porn" in the years after Miller provides vivid illustration of the inadequacy of the concept of "obscenity" for protecting the interests of performers in sexually explicit material.[397]
The irrelevance of Miller to child pornography is loaded with some historic ironies, for it was later in the very year of that decision, 1973, that the first child pornography ring-involving some fourteen adults using boys under age thirteen for sex and production of pornographic materials-was brought to public view.[398] In the four years that followed police and reporters uncovered a wide range of activities involving the sexual exploitation of children, much of it involving child pornography.[399] Early in 1976 two employees of a large Los Angeles corporation publishing sexually explicit magazines were convicted of pandering for hiring a fourteen-year-old girl to engage in numerous acts of photographed sexual intercourse for publication in the company's magazines.[400] Later in that year the Los Angeles Police Department established a special Sexually Exploited Child Unit to combat child pornography and prostitution,[401] and in the spring of 1977 a string of investigative articles in the Chicago Tribune, Time and other major publications helped prompt a full Congressional investigation of the problem.[402]
What Congress discovered in its hearings-which involved one Senate and two House subcommittees over ten dates and four cities from May to September of 1977[403]-was summarized by the Senate Judiciary Committee in its report:
Child pornography and child prostitution have become highly organized, multi-million dollar industries that operate on a nationwide scale.... [404]
According to evidence at the hearings, those industries were producing some 264 different commercial magazines each month showing children nude or engaged in sexual conduct,[405] and the founder of the Los Angeles Sexually Exploited Child Unit reported that "We have 30,000 sexually exploited children in that city."[406] One producer and distributor was reported to have made five to seven million dollars in his own child-pornography business,[407] while other witnesses before Congress described the kidnapping of small children by pornographers,[408] and even their sale by parents.[409]
Child pornography had, in short, become a part of the commercial mainstream of pornography by 1977, sold "over the counter" and in considerable quantities. While a substantial amount of such material was of foreign origin,[410] much of it was made using American children. This wholly unanticipated by-product of the "pornography boom" prompted an angry legislative response from Congress and nearly all state legislatures-a response that in itself seems to have reshaped completely the nature of the child-pornography industry.
The governmental battle against sexual exploitation of children has been an ongoing, evolutionary one, marked by an extraordinary degree of consensus among legislators on both the federal and state levels. Detailed analysis of the wide array of statutes which have resulted from this shared concern is beyond the scope of this report. Nevertheless, a general review of applicable federal statutes, along with attention to significant features of current states, is a crucial backdrop to the Commission's recommendations, and, more importantly to understanding the substantial changes in the child-pornography industry since 1977.
It categorically prohibited the production of any "sexually explicit" material using a child under age sixteen, if such material is destined for, or has already travelled in interstate commerce.[413] The definition of the phrase "sexually explicit" included any conduct involving sexual intercourse of any variety, bestiality, masturbation, sadomasochistic abuse, or "lewd exhibition of the genitals or pubic area."[414] Stern penalties (10 years imprisonment and/or $10,000 fine) were imposed for violating these provisions,[415] and were made applicable, as well, to parents or other custodians who knowingly permit a child to participate in such production.[416]
With regard to the traffic in child pornography already produced, the 1977 Act took a somewhat different approach. With the evidence gathered at the hearings centering overwhelmingly on the commercial character of such traffic, Congress understandably directed its prohibitions against the transportation, shipping, mailing, or receipt of child pornography in interstate commerce "for the purpose of sale or distribution for sale."[417] Thus bartering or simply giving away child pornography was not prohibited even if conducted through the mail. Further, constitutional concerns led Congress to restrict the application of these provisions to material depicting children engaged in "sexually explicit" activity, which was also "obscene" under the Miller test.[418] As under the production provisions, the age limit for children protected was set at sixteen, and the penalties imposed were identical.[419]
Confronted by this evidence, and reinforced by the Ferber decision removing any doubt about the necessity of "obscenity" limitations, Congress in May, 1984, approved a broad revision of the 1977 Act. The Child Protection Act of 1984 removed the requirement that interstate trafficking, receipt, or mailing of child pornography be for the purpose of "sale" to be criminal.[425] Further, it wholly eliminated the "obscenity" restrictions of the 1977 Act,[426] and raised the age limit of protection to eighteen.[427] Provisions raising the amount of potential fines were included,[428] along with new sections authorizing criminal and civil forfeiture actions against violators.[429] The definition of "sexually explicit" material was adjusted slightly: the first word in "lewd exhibition of the genitals or pubic area" was changed to "lascivious," and "sadistic or masochistic abuse" was substituted for "sado-masochistic abuse."[430] Written materials, finally, were clearly excluded from the law's reach in this area: only "visual depictions" of children are criminally actionable."[431]
The result of these revisions was a dramatic increase in federal prosecutions. In the first nine months after passage of the 1984 Act virtually the same number of people were indicted for federal child pornography offenses as had been indicted during the previous six years.[432] The production provisions, however, continued to produce few indictments, in part because of the extraordinary difficulties of investigation and proof, and in part, perhaps, because the more easily used trafficking provisions often may be invoked against suspected producers instead. It appears, in any case, that the 1977 Act effectively halted the bulk of the commercial child pornography industry, while the 1984 revisions have enabled federal officials to move against the noncommercial, clandestine mutation of that industry.
To a substantial extent the states have exercised that power. Nearly all ban the production of child pornography, and an overwhelming majority prohibit distribution as well.[434] Most prohibit as well parental conesent or accession to use of children in sexually explicit materials, and many outlaw facilitation of sexual exploitation through financing, developing, duplication, or promoting child pornography.[435] Some have prohibited as well the possession of child pornography, an extremely effective weapon against child molesters.[436]
Yet it is clear, too, that much remains to be accomplished on the state level. Not all states ban trafficking in child pornography, so that it remains possible in some parts of this country to distribute such materials intrastate without fear of criminal penalty. Further, only about half of the states protect children from use in pornography until their eighteenth birthday; in other states the age limit is set at sixteen or seventeen.[437] (This Commission has determined, indeed, that such protections should, on a somewhat more limited basis, be extended to age twenty-one.)[438] Finally, few states appear to have taken action to provide substantial assistance to victims of child pornography-either through direct aid or through encouraging private civil remedies.[439] The primary role of states in caring for children would seem to argue for their assumption of the principal share of the burden of providing such assistance.
The legislative assault on child pornography drastically curtailed its public presence; it has not, however, ended the problem. Sexual exploitation of children has retreated to the shadows, but no evidence before the Commission suggests that children are any less at risk than before. The characteristics of both perpetrators and victims, combined with the extremely limited state of professional understanding, make it unlikely that child pornography is a passing phenomenon.
Those who sexually exploit children do so for a wide range of reasons, and come from an extremely broad array of backgrounds, and occupations,[440] but it seems helpful to group them into two categories: "situational" and "preferential" molesters.[441] The former are people who act out of some serious sexual or psychological, need, but choose children as victims only when they are readily and safely accessible. "Preferential" molesters, on the other hand, are those with a clear sexual preference for children ("pedophiles" in common usage) who can only satisfy the demands of that preference through child victims. "Preferential" abusers collect child pornography and/or erotica almost as a matter of course. It is unclear how large each of these respective categories is, but it does seem apparent that "preferential" child molesters over the long term victimize far more children than do "situational" abusers.
The approaches adopted by various perpetrators also vary widely. The most recent research on "child sex rings" indicates that they range in structure from highly organized, "syndicated" operations involving several perpetrators and many children with production of child pornography for sale or barter, to "solo" operations in which children are abused and photographed by only one perpetrator for his pleasure.[442] Child pornography, while serving primarily the perpetrator's own needs, is also useful for lowering the inhibitions of other children being recruited by the perpetrator.[443] Wholly commercial operations appear to be extremely unusual, but are still not unknown.[444]
The normal absence of commercial motives, and the strong sexual and/or psychological needs which push both situational and preferential molesters toward sexual abuse of children in pornography, suggest that the demand for such material may be somewhat inflexible. While situational abusers may be steered away from children as victims, preferential abusers may not-and they are prone, moreover, to far more frequent abuse. However strong the criminal law, sexual exploitation of children seems likely to remain an irresistible temptation for some.
What is worse, the supply of potential victims seems inexhaustible as well. Children used in pornography seem to come from every class, religion, and family background; a majority are exploited by someone who knows them by virtue of his or her occupation,[445] or through a neighborhood, community or family relationship. Many are too young to know what has happened; others are powerless to refuse the demand of an authority figure; some seem to engage in the conduct "voluntarily," usually in order to obtain desperately needed adult affection.[446] Adolescents used in pornography are often runaways, homeless youth or juvenile prostitutes who may feel with some justice that they have little choice but to participate.[447] Thus it seems clear that a large class of children and teenagers vulnerable to use in pornography will continue to exist. Even redoubled efforts to teach children to protect themselves from such involvement will not wholly blunt the strong social, family, and economic forces creating that vulnerability.
The rise of the child pornography "problem" took medical, social services and legal communities as much by surprise as it did Congress and the general public. It is only fair to note, therefore, that what one witness dubbed "conceptual chaos" is a serious obstacle to progress against sexual exploitation of children in pornography;[484] at present only a tiny quantity of serious scholarship on the subject has found its way into print.[449] There are indications, moreover, that researchers and clinicians attempting to specialize in the field have faced serious resistance from their peers.[450]
No profession is more open to the charge of ignorance in this area than the law itself.[451] Court procedures are particularly intimidating for children asked to relate extremely intimate sexual details that they know will be reacted to with horror by family and friends.[452] A criminal proceeding, moreover, creates a double bind for the child: if he is believed, a former "friend" will go to jail; if he is not, he must endure additional guilt from thoughts that perhaps he did not tell enough.[453] The study of novel investigative and courtroom procedures to address these problems is only in its infancy: where the child pornography itself is not sufficient, without use of the victim as a witness, to establish the prosecutor's case, parents are likely to face an excruciating dilemma. Lawyers and judges, like doctors and mental health professionals, remain largely ignorant of how to respond to child pornography victims.
That ignorance is deeply unfortunate because the pain suffered by children used in pornography is often devastating, and always significant. In the short term the effects of such involvement include depression, suicidal thoughts, feelings of shame, guilt, alienation from family and peers, and massive acute anxiety.[454] Victims in the longer term may successfully "integrate" the event, particularly with psychiatric help,[455] but many will likely suffer a repetition of the abuse cycle (this time as the abuser), chronic low self esteem, depression, anxiety regarding sexuality, role confusion, a fragmented sense of the self, and possible entry into delinquency or prostitution.[456] All, of course, will suffer the agony of knowing the record of their sexual abuse is in circulation, its effects on their future lives unknowable and beyond their control.[457] That may well be their most un-healable wound.
Because the trauma inflicted on children by sexual exploitation is so great, it has seemed to the Commission particularly important to examine every possible approach to improving the state of the law and services to victims. While limitations of time and resources placed significant constraints on that effort, it was nonetheless possible to discuss the problem of child pornography from a number of different perspectives, and to develop recommendations where the evidence called for them. The recommendations so conceived follow, along with explanations of the reasons for each.
TABLE 1
Situational Child Molester
|
REGRESSED |
MORALLY INDISCRIMINATE |
SEXUALLY INDISCRIMINATE |
INADEQUATE |
|
|
BASIC CHARACTERISTIC |
Poor Coping Skills |
User of People |
Sexual Experimentation |
Social Misfit |
|
MOTIVATION |
Substitution |
Why Not? |
Boredom |
Insecurity and Curiosity |
|
VICTIM CRITERIA |
Availability |
Vulnerability and Opportunity |
New and Different |
Non-Threatening |
|
METHOD OF OPERATION |
Coercion |
Lure, Force, or Manipulation |
Evolve in Existing Activity |
Exploits Size Advantage |
|
PONOGRAPHY COLLECTION |
Possible |
Sadomasochistic; Detective Magazines |
Highly Likely; Varied Nature |
Likely |
Source: U.S. Department of Justice, Federal Bureau of Investigation, CHILD MOLESTERS: A Behavioral Analysis for Law Enforcement, 19, (1986).
TABLE 2
Preferential Child Molester
|
SEDUCTION |
INTROVERTED |
SADISTIC |
|
|
COMMON CHARACTERISTICS |
|
||
|
MOTIVATION |
Identification |
Fear of Communication |
Need to Inflict Pain |
|
VICTIM CRITERIA |
Age and Gender Preferences |
Strangers or Very Young |
Age and Gender Preferences |
|
METHOD OF OPERATION |
Seduction Process |
Non-Verbal Sexual Contact |
Lure or Force |
Source: U.S. Department of Justice, Federal Bureau of Investigation, CHILD MOLESTERS: A Behavioral Analysis for Law Enforcement, 25, (1986).
TABLE 3
Cycle
One of the most common questions asked from a public that knows very little about child pornography is: "How does child pornography begin?" This diagram explains one of the most common ways a child is introduced to pornographic activity:
Source: S. O'Brien, Child Pornography, 89, (1983).
Pornographers use minors as performers in films and other visual depictions.[458] The consumer demand for youthful performers has also created a class of pornography referred to as pseudo child pornography.[459] The growth of pseudo child pornography has made it increasingly difficult for law enforcement officers to ascertain whether an individual in a film or other visual depiction is a minor. Minors deserve special protection from the risks inherent in the production of pornographic materials.[460] The performers may be subjected to threats and coercion, provided with controlled substances or exposed to a variety of sexually transmitted diseases.[461] The Child Protection Act of 1984[462] is designed to prohibit employing, using, persuading, inducing, enticing, or coercing any minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.[483]
This proposed legislation should afford protection to minors through every level of the pornography industry. The recordkeeping obligation should be imposed on wholesalers, retailers, distributors, producers and anyone engaged in the sale or trade of sexually explicit material as described by the Child Protection Act.
The concern to be addressed through this legislation is the safety and well-being of children. The current law contains gaps which allow the exploitation of minors to continue. Legislation should be drafted to close the gaps and afford children full protection in every phase of the production and distribution of sexually explicit materials.
Producers would be required to obtain proof of the age of the performer and record the same on a signed release form if the performer engages in any sexual act which would be in violation of the Child Protection Act.[464]
Despite the umbrella protection provided by the Child Protection Act of 1984, loopholes remain that permit the continued exploitation of children. For example, experts and law enforcement officers have found it difficult to extend this protection because in many instances, ascertaining the real ages of adolescent performers is impossible. By viewing a visual depiction, how does one decide if the performer is fourteen or eighteen, seventeen or twenty-one? The growth of the category of pseudo child pornography has further confused the issue.
The above legislation will assist officials in assuring the safety and well being of children.
The recommended legislation would require producers to obtain release forms from each performer with proof of age.[465] The forms would be filed at a specified location listed in the opening or closing footage of a film, the inside cover of the magazine or standard locations in or on other material containing visual depictions.[466]
The name, official title and location of the responsible person or corporate agent supervising such records would also be listed to avoid use of corporate shields. The release forms should be available for inspection by any duly authorized law enforcement officer upon demand as a regulatory function for the limited purposes of determining consent and proof of age.[467] The information contained in these records should not be used as evidence of obscenity or related offenses in a grand jury proceeding or by a petit jury or trier of fact, but should only be used for prosecution of this offense. This exception from use in evidence is necessary to secure compliance by the largest number of persons and avoid Fifth Amendment problems.
A producer should be required to maintain these records for a minimum period of five years.[468] Failure to comply with any of these requirements would be punishable as a felony. This legislation would not only protect minors from abuse, but it would also place the burden of ensuring this protection was implemented squarely on the producers of the materials. The proposed legislation would serve a record-keeping purpose comparable to that found in environmental and similar statutes.[469] Performers in pornography face more risks than just sexual abuse. A decision by young performers to appear in pornographic materials has serious implications for his or her future personal life and career prospects. The existence of the material and its intermittent resurfacing may destroy employment prospects and threaten family stability.[470]
RECOMMENDATION 38:Producers are currently proscribed through the Child Protection Act from using performers under the age of eighteen to engage in various sexually explicit materials. The proscribed acts include actual or simulated:
The Act should be amended to protect performers under the age of twenty-one. The amendment should prohibit producers from using persons between the ages of eighteen and twenty-one in visual depictions of certain sexually explicit activities. The proscribed activities should include actual:
Persons between the ages of eighteen and twenty-one while physically mature still face problems associated with sexually explicit performances. These risks include: pregnancy,[472] sexually transmitted disease,[473] physical abuse[474] and damage to self-esteem and mental health.[475]
Perhaps because of the inner conflicts common among this age group, adolescents are notoriously poor in making sexual choices well into their late teens and twenties. Thus adolescent use of contraceptives "approaches an almost random pattern,[476] with only a third of sexually active teenagers using contraception consistently.[477] Likewise women aged sixteen to nineteen were eighty-eight percent more likely than women age twenty five to twenty-nine to seek an abortion after twelve weeks of gestation-with women aged twenty to twenty-four fully twenty-five percent more likely to wait than the older group.[478]
Partially because of poor maturity, and partially because of economic and social factors, the health risks of teenage sex are significant. Both infant and maternal mortality are higher for women aged fifteen to nineteen.[479] More precisely, the rate of low birth weight among babies born to nineteen-year-old white mothers is twenty-five percent higher than that for babies born to white mothers aged twenty-, to twenty-four.[488] Abortions, too, are riskier for white women in late adolescence than for older women because they tend to seek them at a much more advanced gestational stage.[481]
Teenagers participating in pornography face all the risks attendant upon adolescent sexual activity but face as well one certainty that other teenagers do not. Their sexual activity, played out before a camera and live audience, is "a graphic form of exhibitionism ... [which] literally makes the child's body 'available' for anyone willing to pay the price anywhere in the world."[482] Without reciting all the adverse consequences which young "models" suffer, it is sufficient to note that they can be severe[483] and, even more importantly, irreversible. Unlike the young prostitute who may be able to leave his or her past behind, the adolescent "porn star" must always live in fear that the film or photograph will surface, once again wreaking havoc in his or her personal and professional life.
Because of the economic and social realities of late adolescence, moreover, it is highly unlikely that a decision to accept these consequences has been made in an atmosphere free of pressure or coercion. Youths aged eighteen to twenty-one as a group suffer extraordinary levels of unemployment and homelessness.[484] The rate of poverty among the sixteen to twenty-one age group is almost half again as high as that among older adults.[485] It is hardly surprising that desperate youths are attracted by the quick money to be made in pornography. In describing why as a young man he made a "skin flick," Sylvester Stallone said that he was literally starving, and "It was either do that movie or rob someone."[486] Yet it is equally clear that it offers them no future as a career in itself, and may in fact further worsen their prospects for stable, long-term employment.[487]
Much participation in pornography, of course, occurs as part of the "career" of juvenile prostitution,[488] and it is worth noting that a significant percentage of youths involved in prostitution have been coerced into "the life."[489]
Many of the difficulties discussed could be eliminated through a prohibition on the use of persons under the age of eighteen in any sexually explicit depiction as desented in the Child Protection Act. Persons between the ages of eighteen and twenty-one would receive the necessary protection through a prohibition against participation in certain scenes of actual sexual activity.
RECOMMENDATION 39:Many pedophile offenders and child pornographers have traditionally used the mails as a mainstay of their psychological base as well as the source of information regarding potential victims.[490] Recently, however, pedophile offenders and child pornographers have begun to use personal computers for communications.[491] A person may now subscribe to an information service whereby he or she can contact other subscribers.[492] The services are private commercial enterprises which sell access codes to subscribing members. These services offer everything from "private" communications accessed through individual code words to conference calls.[493] The communication may also take the form of a "bulletin board" message to which any other subscriber may respond.[494]
Personal computers have instant communication capabilities and have afforded subscribers the opportunity to establish extensive networks.[495] Within these networks one or two pedophile offenders or child pornographers will often assume leadership roles.[496] These individuals will coordinate the conversations and activities with other members of the networks.[497]
Subscribers may identify themselves using a first name and will identify the children with whom they are currently sexually involved.[498] The vast network which may develop enables pedophile offenders who live hundreds of miles apart to communicate about contact with a child known to both.[499] During these computerized conversations the offender may describe his actual and imagined sexual exploits with children.
Investigators have discovered that pedophile offenders use personal computer communications to establish contacts and as sources for the exchange or sale of child pornography.[500] The computer user, after establishing a secure relationship with another subscriber, will arrange for materials to be sent through the mail.[501] The subscribers will identify and describe the types of materials they seek. Respondents will then transmit the materials to the designated address.
Pedophile offenders and child pornographers may also use personal computer services to identify particular children who can be used in making child pornography.[502] The subscribers may describe the child physically and give a location where the child may be found.[503]
The technologically complex computer systems and networks operated by pedophile offenders and their multijurisdictional nature should prompt federal interest and substantiate jurisdiction.[504] Each of these systems uses an interstate common carrier, the telephone, as its communication medium. The information about these minors is routinely conveyed between or among various states.
A recent example occurred in Raleigh, North Carolina, where authorities discovered a computer network known as the "Gay Teen Conference" which was operated by a local man. The network could be reached by any computer operator who obtained a special password and it contained descriptions and depictions of various homosexual acts. The operator of "Gay Teen Conference" also operated a religious computer bulletin board known as "Ministry Bulletin Board." A computer operator was able to obtain the password for "Gay Teen Conference" by contacting the "Ministry Bulletin Board"[505] The proposed legislation would provide a useful law enforcement tool in this area of serious concern.
RECOMMENDATION 40:The United States Postal Inspection Service is the investigative arm of the United States Postal Service.[506] It has investigative responsibilities over all criminal violations of federal law relating to the Postal Service including the child pornography laws.[507]
The most common method of circulating child pornography has traditionally been through the mail.[508] The mail provides a clandestine and anonymous form of communication for both parties.[509]
The efforts of the Postal Inspection Service in the investigation of child pornography would be greatly enhanced through an amendment to the Child Protection Act permitting the Postal Inspection Service to engage in forfeitures.[510]
Since 1984 there has been an increased enforcement effort against child pornography. From January 1, 1978, to May 21, 1984, only 69 defendants were indicted for child pornography violations.[511] From May 21, 1984, to June 1985, there were 103 defendants indicted for child pornography violations.[512]
In 1984 the Postal Inspection Service spent 50,000 hours and completed 168 pornography investigations which resulted in 69 arrests.[513] During the first eight months of 1985 the Service spent 36,000 hours and completed 99 investigations.[514] These efforts resulted in 114 arrests.[515] In June 1985 there were over 200 open Postal Service investigations of potential child pornography violations.[516]
Under current federal law the Postal Inspection Service is excluded from participation in forfeiture actions. The forfeiture provision would enable inspectors the opportunity to recover items of value which were used in or derived from illegal activities. This provision should be structured to assist in making the Postal Inspection Service investigations self-supporting and assist in defraying the cost of subsequent prosecutions as well as removing resources from the hands of offenders.
RECOMMENDATION 41:The Child Protection Act prohibits the transportation of certain sexually explicit visual depictions. The predecessor to the present Act specifically defined visual depictions. The language of the current Act has been used successfully by defense attorneys to exclude undeveloped film that has been legally seized.[517] In an effort to curb the continued exploitation of children, it is necessary to define the term "visual depictions" to include images contained on rolls of undeveloped film, video tape and sketches, drawings or paintings of actual persons.[518] This amendment will afford United States Attorneys the opportunity to bring an indictment under the Child Protection Act for offenses depicted on film undeveloped while under the control of an offender.
The current statute creates a dilemma for law enforcement agents and prosecutors in the case of undeveloped film. If the indictment is brought while film is yet to be developed the depictions contained on the undeveloped film are not subject to prosecution. If the film is allowed to remain in the hands of the offender until developed it is virtually impossible to prevent the pictures from entering circulation which is the very harm sought to be eliminated. This amendment would end the dilemma and enable the prosecution of child pornography contained on undeveloped film possessed by the offender.
RECOMMENDATION 42:The responsibility for financial assistance for a task force program does not lie solely with the federal government, but the program should be the product of a coordinated financial effort between federal and state governments.[519] Federal programs and funding should reward state governments which assume their proper role in creating the task forces described below.
The task forces would consist of experts from different fields including the judiciary, law enforcement agents, and health professionals who would be charged with recommending and implementing changes in the court system and methods to more effectively handle cases of child abuse and exploitation which result from the production and use of child pornography. Upon implementation of such task forces, federal funds would be provided to a state. Federal assistance of this nature would enable states to the task force approach more affectively and economically.
Enabling legislation should provide grants to state governments to establish, develop, implement or operate programs directed toward the treatment and prevention of child sexual abuse related to child pornography.[520]
The programs should handle child sexual abuse cases resulting from the production of child pornography in a manner which reduces the trauma for the victims and the programs should implement procedures which lead to an increase in successful prosecutions against pornographers who sexually abuse children. The program should also present methods of protecting children from the sexual abuse associated with children pornography and related offenses. Many states undoubtedly will recognize the merit of this program and will take the initiative in implementing these procedures.
Congressional action should also address the need for an effective information network which is essential to law enforcement and social service agencies. The information should be assembled for immediate access to assist law enforcement officers as they proceed with a child pornography or related case. This information network should have specific connections with the Uniform Crime Reporting System operated by the Federal Bureau of Investigation. This type of legislation would facilitate the investigation of child sexual abuse and child pornography cases and would lead to effective methods to curb the flow of child pornography and the continued sexual abuse of children.[521]
RECOMMENDATION 43:Federal prosecutors have been frustrated in their attempts to convict child buyers under the existing laws because purchasing or selling a child is not presently a crime.[522] In one case involving the sale of children for use in the production of pornography the only resort was for the Assistant United States Attorney to prosecute the offender for an immigration violation.[523]
Specific legislation would provide additional protection for children and curb the production and distribution of child pornography. Federal prosecutors would have an additional tool available to further the goal of child protection.
For a general discussion of the use of forfeiture provisions, see, Chapter 13.
RECOMMENDATION 45:The United States Supreme Court has called child pornography "a serious national problem."[524] In New York v.Ferber, the Court said that child pornography constitutes a permanent record of the children's participation in sexual activity, and the circulation of the pornography exacerbates the harm to the children. If the sexual abuse of children in pornography is to be curtailed the production and distribution network must be eliminated.[525]
Investigators have identified several uses of child pornography. The first use by pedophiles is for sexual arousal and gratification.[526] While some pedophiles only collect child pornography and fantasize through it, many have used it as a device to aid in the production of their own child pornography.
Child pornography is often used as part of a method of seducing child victims.[527] A child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having "fun" participating in the activity.[528] From a very early age children are taught to respect and believe material contained in books and will thus have the same beliefs about child pornography.[529]
A pedophile offender will use child pornography in which the children appear to be having a good time.[530] The offender uses this material to lower the inhibitions of the child and entice him or her into a desired activity. Children who view this material are also subject to a certain amount of peer pressure as they see other children engaged in the activity.
Child pornography is also used to illustrate the activities in which the pedophile wishes a child to engage.[531] In such instances a pedophile offender shows the child the pornography and asks the child to imitate the pictures.
Pornographic depictions of a child may be used to blackmail the child.[532] The pedophile offender will use the pictures to intimidate the child. The pedophile offender will threaten the child with showing the pictures to others if the child does not cooperate.
Child pornography is also seen as a valuable commodity among pedophiles. Visual depictions may be traded or sold between collectors.[533] This subjects a child to repeated victimization by countless numbers of pedophiles and makes the child the object of the pedophile's sexual fantasies.[534] Child pornography which may have originated as a homemade item may eventually by sold to a commercial child pornography publication.[535]
Child pornography has a life of its own. It is a permanent record of the victimization and sexual abuse of the child.[536] The depictions are timeless and may be distributed and circulated throughout the world for years after they are initially created. Each time the pornography is exchanged the children involved are victimized again.[537]
The harms to children from child pornography which the Supreme Court outlined in New York v. Ferber occur as a result of the existence of the material itself.[538] The enactment of criminal penalties for the possession of child pornography is essential if these harms are to be effectively curtailed.
Several states have recently recognized the inherent harm in child pornography and have enacted legislation prohibiting the possession of such material.[539] Only recently has this type of legislation met any constitutional challenge.[540] This challenge has been premised on the Supreme Court's ruling in Stanley v. Georgia.[541]
In Stanley, police executed a search warrant on the defendant's residence seeking evidence of a suspected bookmaking operation.[542] They located three reels of eight millimeter film in a desk drawer and upon viewing the films, they charged the defendant with possession of obscene matter.[543] He was convicted before a jury.[544] The Supreme Court reversed the conviction and held that "the mere private possession of obscene matter cannot constitutionally be made a crime."[545]
The first constitutional challenge to a state statute prohibiting the possession of child pornography came on December 1, 1985. The first appellate district in Ohio found the state law prohibiting possession of child pornography[546] to be unconstitutional.[547] The analysis used in invalidating the statute was based upon the rationale of Stanley v. Georgia.[548] The Ohio statute was declared unconstitutional because the state could not punish the mere private possession of magazines "which depicted minors...engaging in sexual activity."[549] New York v. Ferber[550] was distinguished on the grounds that it dealt with distribution and not mere possession of child pornography.[551] In finding the statute unconstitutional the Ohio court placed great significance on the language in Stanley where the Supreme Court rejected the contention by the state of Georgia that to eliminate the traffic in obscenity, it is necessary to bar mere private possession by an individual.[552]
In United States v. Miller[553] the United States Court of Appeals for the Eleventh Circuit recently upheld the conviction of a defendant who received child pornography from Europe through the mail.[554] The defendant contended that 18 U.S.C. S2252 (a)(a) violated[555] his right to privacy and relied on Stanley for his claim that the statute was unconstitutional.[556] The court rejected the defendant's argument that the statute only applies to individuals who intend to distribute child pornography.[557] However, in considering the privacy issue, the court said "prior decisions on the issue of the right to possess obscene materials are controlling in our analysis of this case.[556]
The court relied on several obscenity decisions in which the Supreme Court rejected the argument that Stanley created a right to import or receive obscene materials for private use.[559] The court concluded that Stanley cannot be expanded to create a right to receive child pornography through the mail.[560]
Any reliance on the rationale of Stanley or other obscenity cases with respect to a prohibition against the possession of child pornography is misplaced. Stanley upheld an individual's right to privately possess obscene material.[561] The prevailing obscenity standard at the time of the Stanley decision was contained in Roth v. United States.[562] Roth has since been modified in most jurisdictions by Miller v. California.[593]
In New York v. Ferber,[564] the Supreme Court upheld a New York law prohibiting the promotion of sexually explicit depictions of children that were not obscene under Miller.[565] In Ferber, the Court reasoned that the Miller standard, like all general definitions of what may be banned as obscene, does not reflect the state's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. The question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have sexually exploited a child through its production. In addition, a work which, taken as a whole, contains serious literary, artistic, political or scientific value may nevertheless embody the most grievous form of child pornography. The Supreme Court reasoned in Ferber, "It is irrelevant to the child [who has been abused] whether or not the material ... has a literary, artistic, political or social value. Memorandum of Assemblyman Lasher in Support of S263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem."[566]
Any analysis concerning the constitutionality of laws prohibiting the possession of child pornography should not be made as a parallel to obscenity statutes. The Supreme Court has clearly distinguished the standards to be applied to child pornography laws and adult obscenity statutes.[567]
The Supreme Court stated in Ferber that "the nature of the harm to be combatted requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age."[568] The Court went on to clarify its statement by noting that "the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.[569]
The obscenity precedent is clearly inapplicable to a challenge against a statute in which the offense described clearly involved visual depictions of children engaged in sexual activities.[570]
The rationale underlying the Supreme Court's ruling in Stanley is vastly different from that in Ferber. In Stanley, the Court upheld the defendant's right to "read or observe what he pleases-the right to satisfy his intellectual and emotional needs in the privacy of his own home ... free from state inquiry into the contents of his library."[571] The Court also found, at that time, "little empirical basis" for the assertion made by the state of Georgia that "exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence."[572] However, the Court added in a footnote:
What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.Nor do we mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials. See, e.g., 18 U.S.C. S793 (d), which makes criminal the otherwise lawful possession of materials which "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation . . ." In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.[573]
While Ferber admittedly dealt with a statute prohibiting the distribution of child pornography, the decision recognized compelling reasons for overriding the right of an individual to possess child pornography.[574] The Court found that "it is evidence beyond the need for elaboration that a state's interest in safeguarding the physical and psychological well-being of a minor is 'compelling.[575] While the Court in Stanley found little evidence then existing that exposure to obscene materials may lead to deviant sexual behavior or crimes of violence,[576] the Court clearly states in Ferber that "the legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.[577] Child pornography constitutes a permanent record of the sexual abuse of the child and the harm to the child is exacerbated by the circulation of the material.[578] The very existence of child pornography harms the children who are depicted. According to one child psychiatrist quoted in Ferber, "the victim's knowledge of publication of the visual material increases the emotional and psychic harm suffered by the child."[579] With respect to obscene materials in Stanley, the Court found the privacy rights of the individual to be the overriding concern. In Ferber, however, the Court clearly found the harm suffered by minors to be of paramount importance. The focus of the protection constitutes a major distinction between these two landmark decisions. The Ferber Court's concern for minors included the consideration that when child pornography is produced and distributed, the child's privacy interests are violated.[580]
The Court in Stanley rejected the argument that prohibition of the possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution.[581] In Ferber, the Court recognized that it may be difficult, if not impossible, to stop the sexual exploitation of children by pursuing only those who produce child pornography.[582] Citing the clandestine nature of the child pornography trade, the Court noted that "the only practical method of law enforcement may be to dry up the market for this material . . ."[583] The prohibition of the mere possession of child pornography is a necessary incident to "drying up the market" for a product the Supreme Court has found to be extremely harmful to the youth of the nation. Such laws are also entirely consistent with the objectives sought to be attained by the Court in Ferber and should not be confused with other considerations relevant in the obscenity law context.
RECOMMENDATION 46:The sexual exploitation of children is the basis for the production and distribution of child pornography.[584] The production and distribution of child pornography is done in a largely clandestine fashion which makes law enforcement efforts to curb the dissemination more difficult.[585]
The classification of an offense of the sexual abuse of children in connection with child pornography as a felony gives notice to child pornographers and child sexual abusers who produce child pornography that they will be dealt with in a serious manner. An offense classified as a felony receives more attention within the prosecutor's office than the same offense classified as a misdemeanor. The enhanced priority will undoubtedly lead to more effective enforcement and prosecution.
RECOMMENDATION 47:Individuals involved in the child pornography trade may often form networks with local, national and international connections.[586] A clergyman who operated a farm for wayward boys used the boys who lived on the farm to engage in sexual acts with sponsors of the farm. The sexual activities episodes were filmed and sold as souvenirs to the sponsors.[587]
In another circumstance, a Boy Scout troop of forty boys was created to provide sexual services to the adult men who accompanied them on outings. The troop leaders also filmed the activities.[588]
Pedophile offenders and child pornographers use such networks as a means to trade, exchange, and traffic in child pornography.[589] They may also use the contacts they make through this network to locate potential child victims.[590]
The existence of these networks of pedophile offenders and child pornographers along with the magnitude of the harm they may inflict makes it imperative that state legislatures act, where existing laws are deficient, to make the conspiracy to produce, distribute, give away or exhibit any sexually explicit visual depictions of children or to exchange or deliver children for such purpose a felony.
RECOMMENDATION 48:Many people who produce and exchange child pornography have created intricate networks for information. They may join together for the purpose of trading children or trading information about the children.[591] Some pedophiles and child pornographers have formed associations which have national membership.[592]
Since child pornography is primarily a covert cottage industry, pedophiles who are child sexual abusers may use various underground publications or child pornography publications to place advertisements for children or child pornography.[593] Advertisements often are presented in coded language[594] or they may be explicit and direct.[595] The ability to easily obtain information regarding the location of children and child pornography allows pedophiles and child pornographers who collect child pornography to continue the exploitation of children.
Legislation is needed to prohibit the advertising, selling, purchasing, bartering, exchanging, given or receiving of information as to where children or child pornography may be found. The penalty for a violation of the new legislation should be a felony. Legislation directed at curbing the flow of child pornography and information related to its production and distribution will enable law enforcement agents to attack the methods of child sexual abusers.
It is well recognized that the advertisement of material which is illegal constitutionally may be prohibited.[596] Since child pornography is illegal, states may enact statutes to prohibit the advertising of such material. States may enact legislation which would regulate the exchange of this information and would assist in impeding the flow of child pornography. The Congress addressed this issue on an interstate level in the Child Protection Act of 1984.[597]
RECOMMENDATION 49:Participants in international and local child sex tours provide children for pornography and prostitution.[598] Some of these sex rings use child members to recruit new members[599] and involve adults using many different children.[600] Children are purchased or exchanged in the same way the resulting pornography is sold or traded.[601]
Children have been purchased from Mexico and the Dominican Republic.[602] Yakusa, an organized crime entity in Japan, is actively involved in the trading of children.[603] When these children are brought into this country they may be traded further, used in child pornography or tortured for sexual pleasure.[604] For example, a teacher in Los Angeles imported young boys from Guatemala and El Salvador for sexual activity.[605]
RECOMMENDATION 50:Law enforcement officers and prosecutors often are unable to successfully obtain a conviction against an individual on a charge of child molestation because they are unable to locate the child.[606] An amendment to state statutes which recognizes visual depictions of the molestation as sufficient evidence of the molestation, if all other elements of the crime can be proven, will make current law enforcement efforts more effective.
Such visual depictions are nothing more than records of actual child molestation.[607] Law enforcement efforts should not be barred because the children cannot be identified or located.
In New York, law enforcement authorities located photographs of an adult male engaging in numerous sexual acts with children.[608]
The identity of the adult is known to the authorities, but they can take no action against him for those sexual offenses because the child depicted in the photographs cannot be identified.[609]
Police in Columbus, Ohio, seized photographs of an adult male engaged in sexual acts with two young girls aged nine and ten.[610] They could bring no charges for the child sexual abuse offense until the girls could be located .[611]
RECOMMENDATION 51:Prosecutors are often unable to produce the victim of child pornography to testify at trial as to his or her age.[612] The amendment would allow testimony from a third party as to the age of the child depicted. The testimony may come from relatives or friends of the child if the child is identified but he or she is not located. In addition the prosecution may use an expert witness to testify as to the age of the child based upon physiological characteristics.
The testimony based upon the depictions should be used only for proof of age. The depictions, when entered into evidence, should serve as the basis for this testimony from an expert or other qualified person as to the age of the child shown.
Prior to 1985 a child pornography prosecution in Maryland could not go forward unless the child depicted in the material was present to testify that he or she was under the age of sixteen at the time the pornography was produced .[613] Many cases were not prosecuted because this element of proof could not be met when the child victims could not be located.[614] The Maryland legislature enacted a law providing that of a child's age may be proved by:
States may find the approach taken by the Maryland legislature an effective method to overcome the barriers associated with determining the age of a child pornography victim. This approach allows the use of several alternate forms of reliable evidence.
RECOMMENDATION 52:Pedophile offenders privately produce a great quantity of the child pornography.[616] Some child pornographers may have facilities in their homes to develop the photographs, but many producers must use commercial photo finishing laboratories.[617]
Effective law enforcement practices should include efforts to reach the photo finishing process. One Federal prosecutor told this Commission, ". . . there can be little doubt that photo finishers provide a key link in the chain of distribution of child pornography."[618] The photo finishers should be told clearly by law enforcement agencies the type of materials which are sought. The description may mirror the definition found in the Child Protection Act or their respective state laws.[619]
Photo finishers also should be clearly told what responsibilities they have as well as the sanctions they may face for neglect of duty.
In an attempt to address this problem the California legislature amended the Child Abuse Reporting Law.[620] The California law has resulted in an increased effectiveness in law enforcement efforts without a noticeable incidence of spurious reporting.
Although state and local law enforcement officials must be aware of the special problems associated with automated photo finishers these establishments should not be excused from compliance.
RECOMMENDATION 53:Many people convicted of child pornography and related offenses present unique. problems for the judicial and penal systems. The recidivist rate for pedophile offenders who act on their sexual desires is second only to exhibitionists.[621]
An effective method of balancing the needs of the offender and the need to protect society may be the use of a sentence of lifetime probation. The state legislatures may amend their sentencing statutes to provide for supervised as well as unsupervised probation.
This amendment would give judges and probation officers a tool to monitor convicted child pornographers who pose a specific threat to society. The availability of unsupervised probation may become an important tool in the event the offender repeats the crime or a similar offense. Although unsupervised, the probation still holds the threat of future incarceration and allows the state to retain jurisdiction over the person.
Child pornography and the sexual abuse of children has overwhelming international aspects. While some child pornography originates in Europe many of the children depicted are American citizens.[622] A pedophile offender will put together a collection of photos either for his personal use, or in direct response to solicitations by one or more pornography distributors. The photos are then sent to a commercial distributor where they are compiled into a commercial-type publication.[623]
The pedophile offender may reside anywhere in the world. The countries where consumers have been identified include the United States, Canada, United Kingdom, France, Italy, Federal Republic of Germany, Belgium, Sweden, Denmark, the Netherlands, Czechoslovakia, Poland, Saudi Arabia, Egypt, Thailand, the Philippines, Hong Kong, Singapore, Australia and Japan.
A commercial publication is distributed by mail throughout the world, in addition, photo sets are sold to individual consumers. In one instance, photos were sold in sets of twelve photographs for $100, forty photographs for $300, or six hundred negatives for $5,000.
In another instance, positive photographic images (slides) were sent to a consumer by COQ International. The positives were used to make negatives and the negatives used to print photo sets. The sets were then sold, along with photos of models recruited by the United States producers for fifteen to thirty five dollars for a set of six to ten. The same producer also offered special photo sets, custom ordered by the consumer, for two hundred to four hundred dollars per set. He called the service "sponsor a model."
In one case, two special agents from the United States Customs Service corresponded with a distributor of child pornography photos from Bangkok. Evidence was purchased by the agents with the intent to forward it to the customs attache in Bangkok, Thailand, and to refer the case to the Thai authorities. The Thais, however, preferred that the agents travel to Bangkok in the undercover capacities established in the correspondence. The agents would then purchase child pornography leading to an arrest.
While arrangements were being made for the agents to travel to Bangkok, it was discovered that the offender had been indicted in Detroit, Michigan, in 1981 for the distribution of child pornography.
A procedure for establishing undercover identities for agents to travel abroad was nonexistent. After much difficulty appropriate identities were established with justice Department and State Department assistance.
The offender had been selling sets of photographs to his customers, packaged discretely in letter class mail. In his final letters to the agents before their departure for Bangkok, he offered to sell six hundred negatives for $5,000. The agents and the Thais decided to pursue this purchase. One agent posed as a distributor of child pornography and the other as a pedophile.
Upon meeting the offender, the agents were led through Bangkok to avoid surveillance, the offender checked the agents' passports to ascertain their identities, and to ensure that they lawfully entered Thailand. He turned over the final installment of the last photo set purchased by one of the agents, and arrangements were discussed for the purchase for the negatives, use of the children he had promised in his correspondence, and the availability of heroin and marijuana. A meeting was arranged for the following day.
The offender was subsequently arrested based on the evidence contained in the correspondence to the customs agent prior to the arrest. Agents discovered several volumes of photographs, hundreds of photos and negatives and paperback books, all depicting explicit sexual activity between adults and children in his apartment. In addition, address books, sexual paraphernalia, travel diaries, and a copy of his 1981 indictment in Detroit were also discovered.
The defendant has plead guilty to all counts, and is scheduled to be sentenced in Thailand.
Child pornography magazine publishers and filmmakers obtain photographs and movies of children from offenders and reprint them for commercial sale.[624] The United States is also the largest consumer of internationally produced child pornography.[625]
To break this circle of distribution, agencies empowered to interact with foreign countries should exercise their powers to curb the sexual exploitation of children.
These agencies face an initial hurdle caused by cultural differences and views of child sexuality. In contrast to the laws protecting children under the age of eighteen in the United States the age of majority in Northern Europe is generally sixteen.[626] In 1985 a bill was introduced before the Dutch parliament that would lower the age of sexual consent to twelve.
The State Department, the United States Department of Justice and the United States Customs Service should continue efforts to negotiate with foreign countries to curb the flow of child pornography. In the past, these efforts have taken the form of suggesting legislative reforms. Although legislation which would effectively combat child pornography is still pending in Denmark, a Danish judge recently found child pornography to be offensive to public decency.[627]
To supplement the broad diplomatic efforts of the State Department specific federal agencies should continue their efforts to control the distribution of child pornography.[628]
Because most of the commercial pornography is imported from European sources, much of the burden of intercepting this material falls on the United States Customs Service. The Customs Service has the authority to search persons and items at the borders[629] and Customs officers may detain and search any person and property entering the United States without the necessity of a search warrant.[630]
The Customs Service has detected a wide variety of obscene and child pornography materials in the mails including materials which depict such acts as sado-masochism, urination, defecation and bestiality.[631]
In January 1985 an inter-agency task force of agents from the United States Postal Inspection Service, the United States Customs Service, Department of State and the Federal Bureau of Investigation visited several European source countries of child pornography. These nations included Denmark, Sweden and the Netherlands. The agencies sought the assistance of the foreign governments to prevent the distribution of child pornography.
The Commission applauds the efforts of these departments and agencies but encourages enhanced cooperation and detection efforts. A united effort is the only means to an effective and lasting remedy for the overwhelming child pornography problem. The agencies must continually increase their efforts to combat the flow of child pornography.
RECOMMENDATION 55:The Law Enforcement Coordinating Committees (LECCs), as fully discussed in the Recommendations to Law Enforcement Agencies, provide the basis for effective law enforcement efforts. In the area of child pornography violations, LECCs should use information and assistance available from drug and alcohol abuse programs and other social service agencies. The expertise available through the various social service agencies should be tapped to provide law enforcement agencies with a completely effective enforcement effort.
RECOMMENDATION 56:The United States Department of justice or other appropriate federal agency should create a data base as a source of central and accessible information regarding child pornography. This data base should be integrated into the data base recommended in the Law Enforcement Chapter of this report.[632]
The data base should include photographs obtained from searches, photographs of missing or abandoned children, the names of defendants and their contacts. It should also include records of the declination of prosecution of any case and the reasons therefor. The data base will allow federal, state and local law enforcement officials to draw on information gathered nationwide. The data base should allow an agency to submit as well as retrieve information.
RECOMMENDATION 57:The most important factor in the effective enforcement of child pornography and related child sexual abuse laws is well-trained law enforcement personnel. Each law enforcement agency should have at least one member of its staff who is specifically trained to investigate and apprehend individuals involved in child pornography and related cases. At least one officer should be trained and possess the expertise necessary to conduct a thorough child sexual exploitation investigation. This training may be conducted through the Federal Law Enforcement Training Center.
Law enforcement officers who are assigned to a child pornography or related unit face additional emotional pressures because of the insidious nature of child pornography. Officers may be required to view significant quantities of child pornography or deal with young victims during the course of their investigations. Training programs should emphasize the special psychological needs of law enforcement officers and they should offer assistance to alleviate the emotional stress.
A second area which training programs should address is the alienation an officer may encounter from other law enforcement officers.[633] These officers often receive minimal assistance and virtually no emotional support from their peers. The training programs should be used to educate officers assigned to a child pornography or related unit as to the types of behavior they may encounter. In addition, all officers within a department or agency should be trained with an awareness toward the difficulties encountered by officers who are assigned to child pornography or related cases.
Designated personnel should be required to participate in continuous training programs. These continuing education programs may be conducted through the LECC.[634] These programs have generally resulted in an increased awareness of the problem of child pornography and its relationship to sexual abuse.[635]
RECOMMENDATION 58:Agencies with large enough field offices in communities with adequate resources should include a specialized unit within the law enforcement agency to specifically investigate child pornography and related child sexual abuse cases. These trained agents in field offices will be able to actively investigate child pornography cases with an understanding of the particular local or regional problems. The specialized unit allows an officer to acquire and implement expertise in the area and enhance overall law enforcement efforts.
While this approach should not require additional personnel or expense, it will allow the agency to use its existing personnel more efficiently. Trained officers will be able to devote their time to these investigations. Other investigators should reassign the case to an expert within the unit to maintain efficiency and expertise.
The Commission believes that effective and efficient law enforcement is achieved through education, training and experience. These programs would enable law enforcement agencies to extract the maximum expertise from the personnel within their department.
RECOMMENDATION 59:One of the most powerful investigative tools available to law enforcement agents is a search warrant. When used in child pornography and related child sexual abuse cases, a search warrant is unique in its ability to "make or break" an investigation.
Pedophile offenders are "collectors" and will retain photographs, magazines, movies, video tapes and correspondence relating to children for many years. Many of the items collected may not be child pornography. Collections often include "child erotica" which will include "innocent" depictions of children.[636] The discovery of these collections has often unlocked the door to a wealth of information by providing a record of the life and activities of an offender.
In a child pornography investigation executing a search warrant on the suspect's residence may yield photos of the individual engaged in sex with children thus supporting additional charges for child sexual abuse.[637] Pedophile offenders often maintain diaries recording their sexual encounters with children.[638] When a suspect uses a computer to store information regarding communications with other offenders or as a personal diary the search should also include access to computer equipment and records.[639]
In New York, police executed a search warrant on the residence of a suspected child molester and found he kept a complete folder on each of his victims including photographs and records of the dates the victim was in his home.[640] An experienced prosecutor has reported that in one half of child sexual abuse cases, proper searches recover photos of the defendant engaged in sexual acts with children.[641]
A collection of "child erotica" may help to identify the individual as an offender,[642] and may strengthen the prosecution case. This is especially true when proving intent is critical. A wrestling coach accused of fondling a juvenile who claims he was merely demonstrating a wrestling hold or technique would receive closer attention if a search of his residence yields child erotica in the form of writings about such acts and the pleasure he derived from them.
Law enforcement officers located child pornography consumers in many states as a result of the seizure of Catherine "Black Cathy" Wilson's mailing list.[643] One person on the list was an Episcopal priest living in Baltimore, Maryland.[644] Baltimore police were able to execute a search warrant on his home and seize the individual's album of sexually explicit photos of young boys based upon this information.[645] They found "love letters" from the victims and additional pornography.[646] Police subsequently were able to locate one of the boys who was molested by the priest.[647]
The United States Customs office, in Ft. Lauderdale, Florida, and United States Postal Inspectors were conducting a joint child pornography investigation in the Ft. Lauderdale area. During the course of the investigation, a business named "Sun Images" was identified as a producer and distributor of child pornography in the United States. Sun Images was located in Ft. Lauderdale, Florida. The owner and operator of Sun Images was identified. Further investigation revealed the Sun Images was also known as "Teens Unlimited" and "Young Stuff".
The investigators made an undercover buy of child pornography from the owner of the business. The child pornography was being sold in sets of six to ten photos for fifteen to thirty-five dollars a set. The owner was also selling "sponsorships" or custom ordered sets. These photos were available from two hundred to four hundred dollars per set, and would be taken of thirteen to eighteen year old males, "posing" in any manner directed by the customer.
Based on the undercover purchase and other evidence, a search warrant was executed on the owner's residence. The investigators discovered a large quantity of child pornography at the residence and were able to obtain a second warrant for a storage facility in which the defendant kept the releases and applications from his models. He had two sets of applications and releases, one set with the actual dates of birth and one set showing the models to be over eighteen.
Also discovered during the search warrants was the defendant's method for printing and distributing the photographs, as well as his foreign source. COQ International of Denmark was selling the defendant's magazines and slides.
In February, 1985, the Contraband Enforcement Team, of the United States Customs Service, intercepted one magazine entitled Dream Boy No. 6 sent to Bradenton, Florida, address. The magazine had been sent from the Netherlands.
The Contraband Enforcement Team forwarded the magazine to the Special Agent in Charge, Tampa, Florida, for investigation. The Special Agent supervised an investigation which showed that the addressee had two previous seizures of child pornography. The first was a magazine entitle Lust Boys and the second was Child Pornography Advertisements.
Based on the previous seizures and other investigation, a controlled delivery of the Dream Boy magazine was made. Based on the controlled delivery, a search warrant was obtained for the addressee's residence.
United States Customs agents and United States Postal Inspectors surveilled the residence after the delivery of the magazine, while waiting for the warrant to be issued and delivered. While the surveillance was being conducted, the addressee arrived at his residence. Shortly afterward, a thirteen year old boy arrived at the residence on a bicycle and went inside the house. The warrant was delivered about five minutes later, at which time the agents went into the house. Upon entering the house, the agents discovered the offender on the couch with the boy. Although both the defendant and the boy were clothed, it was obvious that the boy had an erection. It appeared the agents had prevented further molestation from taking place.
Although the offender was arrested, he was granted bond with the provision that he had no contact with anyone under eighteen years of age. He was suspended from his place of employment as a guidance counselor at a middle school.
During subsequent investigation, three other children were identified, through seized photographs of them, and that information was turned over to the local sheriff's department. The parents of the children refused to cooperate in the investigation because they did not want their children to testify in court.
In August, 1985, the offender was sentenced to five years in the Middle District of Florida. Four and one-half years of the sentence were suspended.
When making a request for a search warrant investigators should seek to expand the scope of their search beyond child pornography. In one investigator's experience over ninety-five percent of the child pornography cases in which he used search warrants, both adult and child pornography were found in the possession of the child sexual abusers or child pornographers.[648]
Sexually explicit, "adult" material is often used to lower the inhibitions of child victims and should be an item Sought.[649] The scope of the search should include not only the suspect's home but also his or her office, car and any other known place of habitation or storage. Pedophiles who are involved in child sexual abuse are rarely without some portion of their child pornography in close proximity and often keep materials in several different places. Warrants should be drafted to include a wide range of materials under the suspect's control in a variety of locations.[650]
RECOMMENDATION 60: Federal law enforcement agents should ask the child victim in reported child sexual abuse cases if photographs or films were made of him or her during the course of sexual abuse. DiscussionAs part of expanding a law enforcement agency's investigation into child sexual abuse and child pornography all investigators should determine if children alleging sexual abuse were ever photographed in sexually explicit poses.
The most obvious way to find such information is to uniformly ask the child victim if photographs were taken. This technique should be employed for effective investigation and will undoubtedly highlight the interwoven connections between child sexual abuse and child pornography. An investigation of one offense should not eliminate an examination of related offenses.[651] Law enforcement officers should acknowledge that child sexual abuse is the basis for the production of child pornography.
RECOMMENDATION 61:The Commission has heard testimony regarding alleged multi-victim, multi-perpetrator child sexual molestation rings throughout the country. Few of the investigations of these rings have resulted in successful prosecutions. Multitudes of children have related experiences of being photographed by the alleged molesters, and others have commented on the "quick removal" of volumes of photographs prior to law enforcement searches. In the estimated twenty-five investigations throughout the country involving alleged ritualistic molestation of pre-school children not one photograph has been discovered to substantiate the children's stories.
Even in the face of clear medical evidence of sexual molestation of many of these children, the young ages of the children and the procedures in the criminal courts have combined to undermine and destroy effective prosecution. Given the striking similarities in the nature of the alleged sex crimes committed against children in these rings and the consistent inability of the local law enforcement and child protective services systems to effectively investigate and prosecute, it appears likely that future cases could result in similar unsuccessful efforts within the justice system.
A national task force should pursue extensive study for the purpose of establishing or discarding:
The task force should then develop a report including recommendations for more effective investigation of child sexual exploitation cases reflecting these patterns of conspiracy. The task force would include among others, federal agency headquarters representatives. The task force should have the necessary budgetary and personnel resources to allow ongoing investigations in the field.
The task force should include interdisciplinary representatives and investigators with demonstrated skills and experience in multi
victim, multi-perpetrator child sexual exploitation cases.
In recent years, the United States Attorneys have established Law Enforcement Coordinating Committees (LECCs) within each of the ninety-four districts.[652] The LECC is comprised of federal, state and local law enforcement agencies[653] and is designed to improve coordination and cooperation among agencies.[654] The LECC has proved to be an invaluable tool in effective law enforcement efforts. By coordinating the various agencies' efforts, a successful attack can be launched against any form of criminal activity from all sides. Customs can quickly determine a suspect's past involvement with foreign child pornography; the Postal Inspectors and local law enforcement officers can determine whether the suspect has been corresponding with other identified pedophile offenders and whether he is on any known mailing lists; and the FBI can identify the suspect's arrest history, employment history and lifestyle.[655]
New York has provided an example of the effective use of the LECC for the investigation and prosecution of child pornography cases.[656] This example can also be used as a model for the LECC subcommittee specifically designed to address the problem of child pornography. In addition to general enforcement efforts the LECC may serve to make suggestions for regional or statewide programs.
RECOMMENDATION 63:State and local agencies may participate in LECC sponsored training programs and should also participate in programs conducted through the Federal Law Enforcement Training Center. These agencies should also develop regional or local training programs. These localized programs should address general law enforcement techniques needed in child pornography cases as well as concerns peculiar to the region. These programs will enhance law enforcement efforts through a more coordinated base of communication among agencies within a geographic area.[657]
RECOMMENDATION 64:See, The discussion in Recommendations for Federal Law Enforcement Agencies in this Chapter.
RECOMMENDATION 65:See, The discussion in Recommendation for Federal Law Enforcement Agencies in this Chapter.
RECOMMENDATION 66:See, The discussion in Recommendation for Federal Law Enforcement Agencies in this Chapter.
RECOMMENDATION 67:See, The discussion in Recommendation for Federal Law Enforcement Agencies in this Chapter.
See, The discussion in Recommendation for Federal Law Enforcement Agencies in this Chapter.
RECOMMENDATION 69:Prosecutors must be aware of the special considerations involving a child victim-witness. In many states children of a certain age are presumed incompetent to testify. When the child is the only witness to a crime, such as child pornography and related crimes, prosecutors face special problems.
Prosecutors should work with other professionals including law enforcement agents, medical and mental health professionals and social service personnel, involved in child pornography cases to develop a courtroom protocol which maintains the integrity and emotional well-being of the child as well as preserving the constitutional rights of the defendant.
The task force should specifically address a number of issues. First, the number of repetitive questions asked of a child witness during the trial should be limited. A child may become easily frightened when repeatedly asked questions during the trial. This lengthy process increases the trauma and sense of guilt in victims associated with these crimes. The task force should develop methods of support for the child through this period while insuring the defendant's right to confrontation.
The prosecutor specifically may reduce this trauma by objecting to repetitive questioning on the ground of harassment.[658] The prosecutor should emphasize the special emotional frailty of the child in making the objection.
Prosecutors should develop guidelines to qualify a child as a competent witness. While very young children may be incapable of communication, those who are articulate should be presumed competent until the testimony demonstrates otherwise. In questioning a child witness prosecutors should be permitted to use age-appropriate language and allow the child to respond in terms with which they feel comfortable. Children should be permitted to use anatomically correct dolls, if necessary, to demonstrate the manner in which they were exposed or molested. The determination of credibility should be left to the jury as it is with any other witness.
Prosecutors should attempt to avoid delays in preliminary hearings and trials. Repeated delays add to the confusion and trauma of a child witness. Prosecutors may develop a priority calendar for child pornography and related cases. These guidelines should be used to preserve the credibility of the child witness as well as eliminate the extent of the trauma caused by extensive delays in judicial procedures.
Prosecutors may also consider the use of closed circuit television to present the child's testimony. This would eliminate many of the distractions a child witness faces. A child is normally apprehensive in a new environment and will be reluctant to testify forthrightly. The closed circuit television could enable a child to testify and be subjected to cross-examination without being intimidated by the courtroom proceedings or the presence of the defendant.
The task force should also consider developing guidelines to coordinate criminal, civil and family law proceedings. In addition, the protocol should consider the use of grand juries in place of preliminary hearings. These guidelines would maintain the integrity of the judicial proceeding while eliminating any unnecessary trauma for the victims. All task force recommendations should clearly safeguard the constitutional protections afforded the accused.
RECOMMENDATION 70:See, The discussion in Recommendations for Federal Law Enforcement Agencies in this Chapter.
RECOMMENDATION 71:See, The discussion in Recommendations for Federal Law Enforcement Agencies in this Chapter.
RECOMMENDATION 72:The vertical prosecution system involves a single prosecutor handling a particular criminal case from its inception to its conclusion. In cases involving sexually abused or exploited children the young victims are often very frightened at the prospect of going into court. Sometimes the procedures that the victim must go through such as meeting new people and continuously repeating his or her story add to the trauma. When the same prosecutor handles the case it enables him or her to work with the victim on a continuing basis, gain the child's confidence, and help prepare the child for trial.
The vertical prosecution model also ensures that the case is not passed on to another prosecutor who may be unfamiliar with the facts or law involved in the prosecution. In California Governor George Deukmejian has established a grant program through the Office of Criminal Justice Planning to implement the vertical prosecution in model programs involving child sexual abuse and child pornography case.
Recognizing the pedophile offenders and child pornographers pose unique problems in the judicial and penal systems judges and probation officers must be adequately educated. A judge or probation officer can have a significant and positive impact on the offender only if he or she is fully knowledgeable about the situation.
Offenders in child pornography cases rarely go to trial.[659] He or she generally enters a plea and proceeds to sentencing.[660] The judge does not have the benefit of the evidence obtained through trial before considering an appropriate sentence.
The judge must bear the burden of thoroughly assessing the defendant and the offense. The judge must actually view the child pornography to make this evaluation. The judge should not only be made aware of the nature of the pornography and related sexual abuse, but he or she must be fully aware of the quantity and type of material a defendant may possess. Many judges hold the mistaken belief the child pornography offenders are less insidious because they are professional people within the community.[661] A judge should examine the child pornography and be aware of the abuses attributable to its production in order to fully evaluate the offender before sentencing.
The judges and probation officers should be fully informed about the latest social science and medical information regarding pedophile offenders and child sexual abusers and their susceptibility to treatment or behavior modification. Therapists and other professionals who have studied pedophile offenders currently express a great deal of doubt as to the viability of rehabilitation of pedophiles.[662] Judges and probation officers should focus their attention toward the need to protect society and potential victims in addition to therapeutic efforts for pedophile offenders.[663]
Until an effective treatment method is
widely accepted and implemented judges and probation officers must evaluate and supervise pedophile offenders carefully. Pedophile offenders who are incarcerated after an offense simply may use their time of confinement to plan their life and future offenses upon release. One pedophile offender wrote from his prison cell,
I plan to get into photography in a bigger way when I get out. While I am in here I am studying photography and plan to set up a part-time business. I plan to be very discreet too. I was getting a little careless and look what it got me. This is one area where discretion and caution are absolutely essential.[664]
There are several problems which have prevented this program from being implemented. First, there is a lack of effective treatment plans. An effective treatment plan should be developed which results in a long term behavior modification with a significant reduction in recidivism rates.
A second problem associated with an incarceration and treatment program is a concern of its coercive nature. If a program is structured to make early release contingent upon cooperative participation in a treatment program, a correctional facility may be subject to allegations of coercion and violations of the offender's constitutional rights.
In the absence of an effective treatment program, a judge and a probation officer should be aware of the perpetual threat a pedophile offender poses to society. The only viable alternative in the absence of an effective treatment program is a substantial period of incarceration. The incarceration should effectively remove the offender from society and protect the community for a significant period of time.
Incarceration serves several different purposes. It may serve to deter potential offenders, to protect society from this individual and to provide retribution against the of fender. Each of these factors need not be the basis for sentencing in every case.
The judges must examine each of these goals and determine which is the appropriate basis for sentencing. As previously discussed there are very few medical facilities that attempt to treat pedophile offenders.[665] In addition, incarceration often does not serve as a deterrent either to the specific offender or to other potential offenders.
The remaining goals of incarceration are the protection of society and retribution against the offender. Child sexual abuse or child pornography is one of the most insidious offenses known and the goal of retribution generally serves to reassure society of its values. Punishment also serves as an emotional support for the victim. This is particularly important in child pornography cases where the victim is left to feel guilty and ashamed.
The primary goal in sentencing should be to remove the pedophile offender so he or she does not present a threat to society. He or she must be removed for a substantial period of time. The Commission fully acknowledges these needs and recommends that a mandatory minimum sentence of two years be imposed on first time offenders. The sentences for recidivists should be substantially increased.
The welfare of the victim should remain the primary focus of the judge during the sentencing process. The sentence must also be sufficient to protect potential victims. The pedophile offender may continue to communicate with other pedophile offenders. One such communication was sent to an undercover police officer.
"Now I was arrested and all my photographs, books, magazines, slides, films, were confiscated. Since July 19, 1 have been here in a state hospital that treats men with sex offenses. I was first sent here for observation and committed here on November 3 for an indefinite period. That is why I was so happy to hear from you, as I no longer have the contacts with young girls I used to. I still have the same interests, but I am temporarily at a standstill. I was into photography quite a bit and managed to take some shots of Lisa and several of my students.[666]
The correction facility must be kept apprised of these types of communiques and they should be considered during parole hearings or evaluations for release.
RECOMMENDATION 75:Pedophile offenders present a continuing threat to society since there presently is no universally accepted course of treatment for a pedophile offender. In the absence of effective treatment a convicted pedophile offender must be continually monitored subsequent to his or her release. The most effective method of monitoring a pedophile offender is through the imposition of lifetime probation as a part of the initial sentence.
Lifetime probation gives probation personnel the ability to continually monitor the pedophile offender while he or she is able to attempt to rejoin society as a productive member. The probation should be conditioned upon special factors including prohibition of unsupervised contact with children as contact well as any contacts with other pedophile offenders.
A lifetime supervised probation term will require the dedicated efforts of federal and state probation officers. The officers must devote substantial periods of time to these individuals to ensure compliance with the terms of the probation.
In some situations the judge may impose a term of unsupervised lifetime probation. This would eliminate the enormous burden on the probation officers while maintaining legal control over the offender. The judge should carefully evaluate the offender and select the terms of probation which would be most effective and least burdensome on the penal and judicial systems.
RECOMMENDATION 76:Probation officers, psychiatrists and psychologists have extensive contact with defendants and their counsel in the course of preparing presentence reports. Defendants and their counsel often provide court personnel with most of the information used in compiling these reports.
Information supplied by the defendant about himself or herself and the offense may be inaccurate or incomplete and it usually overlooks the victim's perspective. Sources of information other than the defendant must be tapped to give the sentencing judge the most accurate information. Such information should include but need not be limited to: investigative reports, victims' statements and interviews, interviews of witnesses and persons familiar with the offender's habits, a report of any guardian ad litem representing the victim; examination of physical evidence such as pornography created or possessed by the offender; a review of diaries, audiotapes, or videotapes created by the offender; and the offender's criminal, correctional, mental health, educational, military, and work records.[667]
Child sexual abusers often move to another city or state after public exposure or when they come under suspicion. The sentencing judge then should obtain records from jurisdictions in which an offender has previously resided. Victims, prosecutors and investigators should provide information at their disposal to those conducting presentence evaluations.
RECOMMENDATION 77:In the Southern District of California, a defendant was convicted of transporting material involving the sexual exploitation of children and importing obscene merchandise.[668] The trial court sentenced the offender to the maximum punishment and requested a study by the Bureau of Prisons regarding what treatment he might receive.[669] The study was conducted by a Bureau of Prisons psychologist who had never previously treated a pedophile offender.[670] The psychologist found the defendant amenable to treatment, yet could not recommend a federal institution that was capable of providing the treatment.[671] A community treatment proposal was recommended, which in the prosecutor's view, failed to take into account the danger the defendant posed to the community if released.[672] The Federal Bureau of Prisons has acted to prevent a recurrence of this problem. To avoid any misinterpretation by the courts in the future, the Bureau of Prisons has instructed their mental health staff members to go beyond the specific mental health issues and to consider making recommendations for confinement based on factors other than treatment goals in cases where such a sanction is indicated.
Pedophile offenders and child pornographers present a unique and difficult problem in correction facilities. The nature of the offenses for which they have been convicted make pedophile offenders and child pornographers the lowest class within the prison social system. They may be subjected to verbal and physical abuse by other inmates but this factor should not cause judges to avoid incarceration when necessary.
To provide humane incarceration pedophile offenders and child pornographers should receive specialized attention from correctional officials. Correctional departments may need to provide areas within a designated facility for convicted child sexual offenders to eliminate the threats of harm from other inmates. The facility should also attempt to develop specific therapy programs as they may become known for pedophiles in an attempt to prepare them for their reemergence into society.
The programs will be an attempt to recognize the special problems of pedophile offender or child pornographer encounters during his or her period of incarceration and should focus on safety and prevention problems.
RECOMMENDATION 78: Federal, State and Local judges should participate in a task force of multi-disciplinary practitioners and develop a protocol for courtroom procedures for child witnesses that would meet constitutional standards.See, The discussion in Recommendations for Prosecutors in this Chapter.
Public and private social service agencies should lend their expertise to help develop appropriate courtroom procedures. Many of these guidelines should focus on the development of therapy programs for child victims.
In California, a group of preschool children was allegedly molested and photographed by teachers at the Children's Path preschool.[673] Physicians found conclusive medical evidence that fifteen of the children were sexually abused.[674] A two-year-old reported to her parents instances of controlled substance abuse, sodomy, and oral copulation. She also stated that photographs were taken.[675] Since the time the child told her parents of this situation, she has been receiving psychotherapy on a weekly basis. Her parents have also sought therapy.[676] None of the offenders were brought to trial because their victims were too young to be competent witnesses in court.[677]
Social services agencies should develop guidelines to assist child witnesses in the courtroom.[678] The programs which result may take the form of an advocate to assist the child through the judicial process. This person would be assigned to the child and would be concerned only with the welfare of the child rather than a particular judicial outcome.
RECOMMENDATION 80:In many cases, the official intervention into child pornography cases involves only legal and prosecutorial action against the perpetrator. Often, the identities of children appearing in pornographic photographs seized from the homes of pedophile offenders or child pornographers are never established. If the child pornographer is not a member of the family, the case will not be referred to a child welfare agency for protective social services. Child victims of pornography are frequently used as witnesses for the prosecution and subsequently abandoned by the social, medical and mental health services systems.
Child victims of pornography and their families should receive a full range of supportive services including competent medical evaluations and treatment, access to family therapy and peer support groups, legal counsel and guardians ad litem.
Because child pornography and child sexual abuse are so intrinsically related, certain treatment models for victims of child sexual abuse can be applied to victims of child pornography. Children who are involved in treatment for child sexual abuse often reveal that pornography was used by the perpetrator as a threat to prevent the child from disclosing the sexual relationship.
Model child sexual abuse crisis centers have been developed to integrate social, medical and mental health services for suspected child sexual abuse victims. Child sexual abuse centers can provide medical assessment, psychological, psychosocial evaluation and crisis intervention services to suspected victims of child sexual abuse and their families.[679] Evaluation teams may consist of a physician, nurse practitioner, psychologist, social worker, and children's services worker. The multidisciplinary team approach can be used in the initial evaluation activities of the center and in the development of follow-up plans, including referrals for law enforcement and children's protective services, court action, and psychological treatment.
In addition, many runaway and homeless children are enticed into pornography or prostitution, or resort to theft in order to survive.[680] Early intervention into their lives can provide a viable deterrent against other crimes. Without intervention, these children may go on to more serious crimes when they are no longer desirable to pimps and pornographers.[681]
RECOMMENDATION 81:Sexual exploitation through the production of child pornography leaves a tremendous cost in its wake. This cost is in economic terms as well as human emotional devastation. Many children suffer physical and emotional damage as well as the effects of sexually transmitted diseases.
An effective response to cases of suspected child sexual exploitation requires a sensitive and comprehensive medical examination of the child that will:
Evidence of child sexual abuse is more difficult to obtain than evidence of other types of physical abuse which results in external bruising, lacerations, scarring or severe malnutrition. Obtaining any medical evidence of sexual abuse which results from the production of child pornography requires special expertise and special sensitivity to the needs of the child. Such evidence is only a component of the evaluation and interpretation of findings which must be used with caution and understanding.
Sexually exploited children often must also undergo extensive psychotherapy to restore their mental health. Therapy is costly and may often be outside the limits of ordinary medical insurance. Monies available in the state victims of crimes fund should be used to defray the cost of this evaluation and treatment. The distribution of monies from these funds also recognizes the real injury which these children have suffered.
RECOMMENDATION 82:Clinicians should be trained in the types of problems that may be associated with child sexual exploitation which results from the production of child pornography.[683] Problems with children may include generalized withdrawal or assaultive behavior. Child victims may also display specific inappropriate sexual behavior or specific target sources of anxiety (e.g., men with beards).
Counselors treating these children must also be trained to work effectively with families and other caretakers of victims (e.g., foster parent, extended family child care, professionals). Child caretakers need help to understand possible future behaviors of child victims, alleviate anxiety and avoid creating unnecessary abnormal behaviors as a result of adult inappropriate over-reactive expectations. Parents of five year old victims might be more understanding of and more effective in dealing with recurrent bedwetting or sexual behavior if they are prepared.[684]
Clinicians evaluating child pornography victims also need training in legal and judicial procedures to assure that the evaluation and counseling process does not conflict with the proper disposition of the criminal case.
RECOMMENDATION 83:
Behavioral scientists should conduct research to determine the effects of
the production of child pornography and the related victimization on children.
It is important that victim research examine the short and long-term effects of the sexual victimization of children. Dr. Roland Summit, a leading medical authority, expressed the need for additional research crucial to this Commission.[685] An understanding of the behavioral patterns of child victims is especially lacking. The child may be disbelieved upon disclosure, during investigation, or as a witness in court.[686] Parents or other child advocates may also be attacked for supporting their child's version of the offense.[687]
Behavioral scientists also should learn more of the characteristics of the child pornographer and the pedophile offender. These conclusions will be valuable to law enforcement agents, prosecutors, judges, parents, and therapists. This research will form the basis for a sound program to curb the sexual exploitation of children.[686]
Such research should include a systematic observation of the child pornographic component of an experience separate from other criminal acts in cases that include pornography and other forms of child abuse. Research should also examine the effects of adult pornography on children.
RECOMMENDATION 84:
States should support age-appropriate education and prevention programs
for parents, teachers and children within public and private school systems
to protect children from victimization by child pornographers and child sexual
abusers.
The educational programs must inform children while at the same time preserving a child's innocence and basic trust. The program should avoid instilling any unhealthy fear or mistrust in children. It may focus on the difference between positive healthy affection and touching or contact which is harmful to the child. Training for parents and school personnel should center on how to identify cases and how to report the information to the proper agencies.[689]
RECOMMENDATION 85:
A multi-media educational campaign should be developed which increases family
and community awareness regarding child sexual exploitation through the production
and use of child pornography.
A multi-media program should inform families and communities of the materials and seduction techniques used by child pornographers and pedophile offenders. The child pornographer or pedophile offender may befriend a potential victim, buy him or her gifts, or take the child on trips. Pedophile offenders or child pornographers may also volunteer their services to be near children in activities such as sports, daycare centers, schools or camps. Because of this seduction process, a child victim's sexual encounters with a pedophile molester may never seem traumatic.[690] The subtle manner in which they abuse their victims necessitates a heightened awareness on the part of children and their parent. While parents or other adult caretakers may be uncomfortable in posing questions about sexuality to their child, parents may be more receptive to a trained professional who candidly answers such questions.[691] Each of these programs should list individuals or services in the community where parents or children may seek information or assistance. These facilities should incorporate a variety of social services as well as the availability of legal advice. They should also assemble information as to agencies which provide particular types of assistance.[692]
BILL
"To amend title 18, United States Code, to establish criminal penalties for the transmission by computer of obscene matter, or by computer or other means, of matter pertaining to the sexual exploitation of children, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That this Act may be cited as the "Computer Pornography and Child Exploitation Prevention Act of 1985".
Sec. 2 Section 1462 of Title 18, United States Code is amended by-
"(d) any obscene, lewd, lascivious, or filthy writing, description, picture, or other matter entered, stored, or transmitted by or in a computer; or "Whoever knowingly owns, offers, provides, or operates any computer program or service is being used to transmit in interstate or foreign commerce any matter the carriage of which is herein made unlawful; or" and
"For purposes of this section-
For purposes of facilitating, encouraging, offering, or soliciting sexually explicit conduct of or with any minor, or the visual depiction of such conduct, shall by punished as provided in subsection (d) of this section, if such persons knows or has reason to know that such notice, statement, advertisement, or descriptive or identifying information will be transported in interstate or foreign commerce or mailed, or if such information has actually been transported in interstate or foreign commerce or mailed."
Sec. 4 Section 2252 of Title 18, United States Code, is amended-
"(b)Any person who knowingly enters into or transmits by means of computer, or makes, prints, publishes, or reproduces by other means, or knowingly causes or allows to be entered into or transmitted by means of computer, or made, printed, published, or reproduced by other means any notice, statement, or advertisement to buy, sell, receive, exchange, or disseminate any visual depiction, if
"1. the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
2. such visual depiction is of such conduct;
shall be punished as provided under subsection (c), of this section, if such person knows or has reason to know that such notice, statement, or advertisement will be transported in interstate or foreign commerce or mailed, or if such notice, statement, or advertisement has actually been transported in interstate or foreign commerce or mailed."
Sec. 5, Section 2255 of Title 18, United States Code is amended by adding at the end thereof the following new paragraph:
"(5) 'computer' means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage function, and includes any data storage facility directly related to or operating in conjunction with such device."
To amend the Child Protection Act of 1984 to authorize the Postal Service to conduct civil administrative seizures and forfeitures under the Act, and for other purposes.
Sec. 1. Subsection (b) of section 2254 of title 18 United States Code, is amended by inserting "or the Postal Service" after "the Attorney General."
Sec. 2 Section 2003(b) of title 39, United States Code, is amended
SECTION 1. This Act may be cited as the "Children's Justice Act"
CHILDREN'S JUSTICE GRANT
SEC. 2. Section 4 of the Child Abuse Prevention and Treatment Act is amended by-
in accordance with the eligibility requirements of this subsection. Grants under this subsection may be made to the State agency which administers funds received under subsection (a) or to an appropriate statewide law enforcement agency which has developed a child abuse program which meets the requirements of paragraph (2). The determination as to which agency of a State may apply for a grant pursuant to the preceding sentence shall be made by the chief executive officer of such State.
"B. If the Secretary determines, at the request of any State on the basis of information submitted by the State that such State-
then such State shall not be required to meet the requirements of Subparagraph (A).
"C. A State may adopt reformed recommended by the task force of such State in less than all three of the categories provided in subparagraphs (B), (C), and (D) of paragraph (3), but in the event that a State fails to adopt any recommendation in a category the State shall submit to the Secretary a detailed explanation of the reasons for the State not planning to carry out any such omitted recommendation.
"3. A. Each State desiring to receive a grant under this subsection shall establish a multidisciplinary task force on children's justice composed of professionals experienced in the criminal justice system and its operation relating to issues of child abuse. The task force shall include representatives of the law enforcement community, judicial and legal officers including representatives of the prosecution and the defense, child protective services, child advocates, health and mental health professionals, and parents. Each State task force shall, for fiscal year 1987, review, analyze, and make recommendations for reforms needed to improve the response of such State to child abuse cases in each of the categories described in subparagraphs (B), (C), and (D).
"B. A State shall provide for the handling of child abuse cases, especially child sexual abuse cases, in a manner which reduces the trauma to the child victim. Administrative procedures consistent with the reduction of trauma may include-
"C. A State shall establish reforms designed to improve the chances of successful prosecution or legal action against individuals who abuse children, especially individuals who sexually abuse children. Such reforms may include-
"D. In order to improve procedures to protect children from abuse, especially sexual abuse, a State shall establish administrative reforms by law or, if possible, pursuant to law by administrative action, such as-
"4. A grant authorized by this subsection may be made by the Secretary upon application which is made at such time or times and contains or is accompanied by such information as the Secretary may prescribe. Each such application shall-
"5. A. In order to assist the States in developing effective approaches to achieve the objectives set forth in paragraph (1), the Secretary, through the National Center on Child Abuse and Neglect established pursuant to section 2(a), shall-
"B. Not later than two years after the date fund are obligated under section 5(b) for the first fiscal year, the Secretary shall-
"C. The summary, information, and materials required under subparagraph (A) shall be made available to appropriate State officials not later than 180 days after the date of the enactment of the Children's Justice Act."
AUTHORIZATION
SEC. 3. Section 5 of the Child Abuse Prevention Treatment Act is amended by-
"b. There are authorized to be appropriated $12,000,000 for each of the fiscal years 1987 and 1988 for the purposes of making grants under subsection (d) of section 4."
COORDINATION OF FEDERAL PROGRAMS INVOLVING CHILD ABUSE
SEC. 4. Section 7 of the Child Abuse Prevention and Treatment Act is amended by-
"b. 1. Within 180 days of the date of enactment of the Children's Justice Act and every 6 months thereafter, the Attorney General, the Secretary of Health and Human Services, Secretary of Education, and the head of any other agency or department designated by the President, or their designees, responsible for programs involving child abuse prevention and treatment shall meet for the purpose of coordinating such programs in order to-
"A. prevent the overlap of such programs and the resulting waste of resources; and
"B. assure that such programs effectively address all aspects of the child abuse problem.
"2. Within one year of the date of the enactment of the Children's Justice Act and annually thereafter, the Secretary of Health and Human Services shall report to Congress with respect to the actions carried out by agencies and departments of the United States for the purpose of coordinating programs involving child abuse prevention and treatment as provided in paragraph (1)."
MODIFICATION OF FBI OFFENSE CLASSIFICATION SYSTEM
Sec. 5. The Attorney General shall modify the classification system used by the National Crime Information Center in its Interstate Identification Index, and by the Identification Division of the Federal Bureau of Investigation in its Criminal File, and its Uniform Crime Reporting System with respect to offenses involving sexual exploitation of children by-
AMENDMENT TO PUBLIC HEALTH SERVICE ACT
Sec. 6
"i. Nothing in this section shall be construed to supersede the application of State and local requirements for the reporting of incidents of suspected child abuse to the appropriate State or local authorities."
Amend the title so as to read "A bill to amend the Child Abuse Prevention and Treatment Act to establish a program to encourage States to enact child protection reforms which are designed to improve legal and administrative proceedings regarding the investigation and prosecution of the child abuse cases, especially child sexual abuse cases."
B. Sexual exploitation of a minor is a class 2 felony." Ariz. Rev. Stat. Ann. S13-3553(1984);
"A person who has in possession a photographic representation of sexual conduct which involves a minor, knowing or with reasons to know its content and character and that an actor or photographic subject in it, is guilty of a gross misdemeanor." Minn. Stat. S617.247(1984);
"A person who knowingly and willfully has in his possession any film, photograph or other visual presentation depicting minors engaging in or simulating, or assisting others to engage in or simulate sexual conduct is guilty of a misdemeanor." Nev. Rev. Stat. S200.730(1984);
"A. No person, with knowledge of the character of the material or performance involved, shall do any of the following:
"Family man seeks other with similar interest." Swing. Issue 45, p. 18. Dawn Media, San Diego, CA (1982);
"Pretty mother with pretty daughters invites inquiries from gentlemen anywhere, who are interested in meeting us or in photography." Lolita. Issue 48; Id.
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advanced the governmental interest asserted and whether it is not more extensive than is necessary to serve that interest. 447 U.S., p. 466.
Any person who depicts a child in, or who knowingly develops, duplicates, prints, or exchanges, any film, photograph, videotape, negative or slide in which a child is engaged in an act of obscene sexual conduct, except for those activities by law enforcement and prosecution agencies and other persons described in subdivisions (c) and (e) of Section 311.3. Cal. Penal Code. S11165 (West 1985).
(a) Control By Court. The court shall exercise reasonable control over the mode and order if interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
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Los Angeles County also completed a study on runaway and homeless youths. Under the auspices of the Los Angeles County Board of Supervisors with participation of the Department of Children's Services, the Dependency Courts, law enforcement, and in conjunction with the private sector, a project has been proposed consisting of the following components designed to assist these children to develop meaningful lives:
Although child abuse is generally perceived as a problem of early childhood, this study has uncovered another largely unrecognized abused population-adolescents. They need the community's care and concern just as much as their younger counterparts.
The community survey of experts reveals the lack of appropriate community resources. Agency staff themselves estimate that they are not coping with the situation adequately. The resource deficit is critically hindering a reasonable level of service provision. What scarce resources are available are not being utilized effectively because there is little rational planning, inadequate communication among agencies, and minimal coordination of effort. Each agency and service goes its own way, doing its best, but without reference to others serving the same population. The public and private sectors appear to operate as two separate subsytems, each in its own encapsulated orbit, with only sporadic interaction.
Our studies demonstrate that the runaway and homeless population is made up of different subpopulations with different characteristics, needs and service requirements. For example, there are multiple reasons for self-initiated breaking away from home, and also a variety of forces within the family that push the young person out involuntarily and prematurely. Planning for runaway and homeless youth requires differential diagnosis and specifically targeted patterns of service delivery. The analysis of existing research on program evaluation suggests that there are no panaceas, no universally recognized and accepted program designs to solve the problem, although there are useful lessons and helpful ideas to be gleaned from studying the experiences of other communities across the country. Program development on the local level needs to be carefully coordinated, and adequately researched.
The family plays a central, but ambiguous role, according to our studies. Extant research indicates that family intervention is a highly effective strategy for many young people, and indeed might be the strategy of first choice in most situations. When reconciliation is possible, it should be given priority. However, research also shows that many families are so destructive, abusive and rejecting that children cannot wisely be returned to them. Almost fifty percent of the runaways need other options, including alternative residential care (such as group homes and foster care) for some, transitional services for those ready for emancipation, and basic survival services to nomadic youngsters committed to life in the streets.
This study has uncovered the intensive nature of this problem. We have not been able to ascertain the extensive nature of the problem, i.e., its numerical dimensions. The panel of approximation of the number of runaway and homeless youth in Los Angeles county. Knowing the dimension of the problem is essential to designing a solution. When society acknowledges a problem and determines to acquire accurate statistics, the numbers become available. This is the time to learn how many troubled youth must be provided for, and to undertake pilot and demonstration projects designed to develop effective programmatic responses." J. Rothman & T. David, Status Offenders in Los Angeles County, Focus on Runaway and Homeless Youth: A Study and Policy Recommendations, 3-4 (unpublished study).
The legislation provides:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That this Act may be cited as the "Pornography Victims Protection Act of 1985."
Sec. 2 Section 2251 of title 18, United States Code, is amended-
"(c) (1) Any person who coerces, intimidates, or fraudulently induces an individual, 18 years or older to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct shall be punished as provided under subsection (d), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if such visual depiction has actually been transported in interstate or foreign commerce or mailed, or if such person knows or has reason to know that the individual 18 years or older was transported in interstate or foreign commerce for the purpose of producing any such visual depiction of such conduct.
"(2) Proof of one or more of the following facts or conditions shall not, without more, negate a finding of coercion under this subsection:
"(A) that the person is or has been a prostitute;
"(B) that the person is connected by blood or marriage to anyone involved in or related to the making of the pornography;
"(C) that the person has previously had, or been thought to have had, sexual relations with anyone, including anyone involved in or related to the making of the pornography;
"(D) that the person has previously posed for sexually explicit pictures for or with anyone, including anyone involved in or related to the making of the pornography at issue;
"(E) that anyone else, including a spouse or other relative, has given permission on the person's behalf;
"(F) that the person actually consented to a use of the performance that is changed into pornography:
"(G) that the person knew that the purpose of the acts or events in question was to make pornography;
"(H) that the person signed a contract to produce pornography; or
"(I) that the person was paid or otherwise compensated";
S2251. "Sexual exploitation".
Sec. 3 (a) Section 2252 (a) (1) of title 18, United States Code, is amended by adding at the end thereof the following:
"(C) the producing of such visual depiction involved the use of an adult who was coerced, intimidated, or fraudulently induced to engage in sexually explicit conduct and the person knows or has reason to know that the adult was coerced, intimidated, or fraudulently induced; and
"(D) such visual depiction depicts such conduct; or".
(b) Section 2252 (a) (2) is amended by –
(1) striking out "and" and the semicolon in clause (A) and inserting in lieu thereof "or the production of visual depiction involved the use of an adult who was coerced, intimidated, or fraudulently induced to engage in sexually explicit conduct and the person knows or has reason to know that the adult was coerced, intimidated, or fraudulently induced; and
(c) the heading for section 2252 is amended to read as follows:
S2252. "CERTAIN ACTIVITIES RELATING TO MATERIAL INVOLVING SEXUAL EXPLOITATION."
Sec. 4. (a) Chapter 110 of part 1 of Title 18. United States Code,is amended by redesignating section 2252 as section 2261.
(b) Chapter 110 of part J of title 18, United States Code, is amended by inserting after section 2254 the following:
S2252. CIVIL REMEDIES.
"(a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 2251 or 2252 by issuing appropriate orders, including –
"(1) ordering any person to divest himself of any interest, direct or indirect, in any legal or business entity;
"(2) imposing reasonable restrictions on the future activities or investments of any person including prohibiting such person from engaging in the same type of legal or business endeavor; or
"(3) ordering dissolution or reorganization of any legal or business entity after making due provision for the rights of innocent persons.
"(b) The Attorney General or any person threatened with loss or damage by reason of a violation of section 2251 or 2252 may institute proceedings under section (a) and, in the event that the party bringing suit prevails, such party shall recover the cost of the suit, including a reasonable attorney's fee. Pending final determination, the court may at any time enter such restraining orders or prohibitions, or take such other actions, including the acceptance of satisfactory performance bonds, as it shall deem proper. For purposes of this section, a violation of section 2251 or 2252 shall be determined by a preponderance of the evidence.
"(c) Any victim of a violation of section 2251 or 2252 who suffers physical injury, emotional distress, or property damage as a result of such violation may sue to recover damages in any appropriate United States district court and shall recover threefold the damages such person sustains as a result of such violation and the cost of the suit, including a reasonable attorney's fee. For purposes of this section, a violation of section 2251 or 2252 shall be determined by a preponderance of the evidence.
"(d) A final judgment or decree rendered in favor of the United States in any criminal proceeding brought by the United States under this chapter shall estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding.
"(e) Nothing in this section shall be construed to authorize any order restraining the exhibition, distribution or dissemination of any visual material without a full adversary proceeding and a final judicial determination that such material contains a visual depiction of sexually explicit conduct, as defined by section 2262 of this chapter, engaged in by a minor or by a person who was coerced, intimidated, or fraudulently induced to engage in such sexually explicit conduct.
S2256. CIVIL PENALTIES.
"(a) Any person found to violate section 2252 or 2252 by preponderance of the evidence shall be liable to the United States Government for a civil penalty of $100,000 and the forfeiture of any interest in property described in section 2254. The Attorney General may bring an action for recovery of any such civil penalty or forfeiture against any such person. If the Attorney General prevails he may also recover the cost of the suit, including a reasonable attorney's fee.
"(b) If the identity of any victim of an offense provided in section 2251 or 2252 is established prior to an award of a civil penalty made to the United States under this section, the victim shall be entitled to the award. If there is more than one victim, the court shall apportion the award among the victims on an equitable basis after considering the harm suffered by each such victim.
S2257. VENUE AND PROCESS.
"(a) Any civil action or proceeding brought under this chapter may be instituted in the district court of the United States for an district in which the defendant resides, is found, has an agent, or transacts his affairs.
"(b) In any action under section 2252 or 2256 of this chapter in any district court of the United States in which it is shown that the ends of justice require that other parties residing in any other district be brought before the court, the court may cause such parties to be summoned, and process for that purpose may be served in any judicial district of the United States by the marshall of such judicial district.
"(c) In any civil or criminal action or proceeding under this chapter in the district court of the United States for any judicial district, a subpoena issued by such court to compel the attendance of witnesses may be served in any other judicial district except that no subpoena shall be issued for service upon any individual who resides in another district at the place more than one hundred miles from the place at which such court is held without approval given by a judge of such court upon a showing of good cause.
"(d) All other process in any action or proceeding under this chapter may be served on any person in any judicial district in which such person resides, is found, has an agent, or transacts his affairs.
S2258. EXPEDITION OF ACTIONS.
"In any civil action instituted under this chapter by the United States in any district court of the United States, the Attorney General may file with the clerk of such court a certificate stating that in his opinion the case is of general public importance. A copy of that certificate shall be furnished immediately by such clerk to the chief judge or in his absence to the presiding district judge of the district in which such action is pending. Upon receipt of such copy, such judge shall designate immediately a judge of that district to hear and determine the action. The judge designated to hear and determine the action shall assign the action for hearing as soon as practicable and hold hearings and make a determination as expeditiously as possible.
S2259. EVIDENCE.
"In any proceeding ancillary to or in any civil action instituted under this chapter the proceedings may be opened or closed to the public at the discretion of the court after consideration of the rights of affected persons.
S2260. LIMITATIONS.
"A civil action under section 2255 or 2256 of this chapter must be brought within six years from the date the violation is committed. In any such action brought by or on behalf of a person who was a minor at the date the violation was committed, the running of such six-year period shall be deemed to have been tolled during the period of such person's minority."
Sec. 5(a) The section analysis for chapter 110 of part 1 of Title 18, United States Code, is amended to read as follows:
"CHAPTER 110-SEXUAL EXPLOITATION "See:
"2251. Sexual Exploitation.
"2252. Certain activities relating to material sexual exploitation.
"2253. Criminal forfeiture.
"2254. Civil forfeiture.
"2255. Civil remedies.
"2256. Civil penalties.
"2257. Expedition of actions.
"2259. Evidence.
"2260. Limitations.
"2261. Definitions for chapter.
"2262. Severability.(b) The chapter analysis for part 1 of title 18, United States Code, is amended by striking the item relating to chapter 110 and inserting in lieu thereof the following:
"110. Sexual Exploitation ...................... . ........ . . . . . ............. 2251".
Sec. 6 Chapter 110 of title 18, United States Code, is amended by inserting after section 2261 the following:
"If the provisions of any part of this Act or the amendments made by this Act, or the application thereof, to any person or circumstances is held invalid, the provisions of the other parts of this Act or the amendments made by this Act and their applications to other persons or circumstances shall not be affected:"
ASSEMBLY BILL NO. 141
ADDITION TO BUSINESS AND PROFESSIONS CODE, SECTION 28
The Legislature finds that there is a need to ensure that professionals of the healing arts who have demonstrable contact with child abuse victims, potential child abuse victims, and child abusers and potential child abusers are provided with adequate and appropriate training regarding the assessment and reporting of child abuse which will ameliorate, reduce, and eliminate the trauma of child abuse and neglect and ensure that reporting of child abuse in a timely manner to prevent additional occurrences.
The Psychology Examining Committee and the Board of Behavioral Science Examiners shall establish required training in the area of child abuse assessment and reporting for all persons applying for initial licensure and renewal of a license as a psychologist, clinical social worker, or marriage, family, and child counselor on or after January 1, 1987. This training shall be required on time for all persons applying for initial licensure or for licensure renewal on or after January 1, 1987.
All persons applying for initial licensure and renewal of a license as psychologist, clinic social worker, or marriage, family and child counselor on or after January 1, 1987, shall, in addition to all other requirements for licensure or renewal, have completed coursework or training in child abuse assessment and detailed knowledge of Section 11165 of the Penal code. The training shall:
- Be completed after January 1, 1983.
- Be obtained from one of the following sources:
- An accredited or approved educational institution, as defined in Section 2902, including extension courses offered by those institutions.
- An educational institution approved by the Department of Education pursuant to Section 94310 of the Education Code.
- A continuing education provider approved by the responsible board or examining committee.
- A course sponsored or offered by a professional association or a local, county, or state department of health or mental health for continuing education and approved by the responsible board.
- Have a minimum of 7 contact hours.
- Include the study of the assessment and method of reporting of sexual assault, neglect, severe neglect, general neglect, willful cruelty or unjustifiable punishment, corporal punishment or injury, and abuse in out-of-home care. The training shall also include physical and behavioral indicators of abuse, crisis counseling techniques, community resources, rights and responsibilities of reporting, consequences of failure to report, caring for a child's needs after a report is made, sensitivity to previously abused children and adults, and implications and methods of treatment for children and adults.
- All applicants shall provide the appropriate board with documentation of completion of the required child abuse training.
The Psychology Examining Committee and the Board of Behavioral Science Examiners shall exempt any applicant who applies for an exemption from the requirements of this section and who shows to the satisfaction of the committee or board that there would be no need for the training in his or her practice because of the nature of that practice.
It is the intent oŁ the Legislature that a person licensed as a psychologist, clinical social worker, or marriage, family, and child counselor have minimal but appropriate training in the areas of child abuse assessment and reporting. It is not intended that by solely complying with the requirements of this section, a practitioner is fully trained in the subject of treatment of child abuse victims and abusers.
CARE PROGRAM
STUDENT WORKSHOP DESCRIPTION
Over eighty percent of child molestations are perpetuated by adults known to the child. The majority of incidents of sexual abuse take place in the home of the abuser or the child. Boys are equally as vulnerable as girls. Child molesters cannot be identified easily; they come from all races, religions, professions, and socio-economic classes. Children can be taught to protect themselves from unwanted, uncomfortable and potentially abusive situations.
C.A.R.E. (Child Abuse: Recognize and Eliminate) is the Los Angeles Unified School District's extensive school-based educational program on child abuse prevention. The student component of CARE is an exemplary model of instruction for children in pre-kindergarten through grade six. Based on the concepts of self-esteem and self-protection, this instruction is conducted in small groups at the school by S.C.A.N. (School Child Abuse and Neglect) Team members. A SCAN Team is a group of onsite school personnel who have received intensive training in child abuse prevention and intervention. Student instruction is one component of this extensive school-based child abuse educational program.
The SCAN Team's role in presenting the student lesson is critical. Since all instruction is delivered by the same individuals, there is a strong assurance that consistency in the information presented is maintained and, that all the children receive this information. (The SCAN Team presents the student curriculum to all students every year). In addition, because SCAN Team Members are full-time, on-site certificated staff, any one or all of the team is available on a daily basis to attend to the needs, problems and/or concerns of any child at any time. If a child needs assistance one week, six weeks or six months after the initial presentation, a trained person known to the child is there to help. SCAN Team members return to the classrooms periodically to reintroduce themselves and remind children of their availability and willingness to meet and talk with the child at any time and for any reason.
The initial basic program includes a directed lesson, film, discussion and question/answer period, and an opportunity for immediate private counseling. The follow-up lesson which takes place approximately six weeks later, focuses on reinforcing the central concepts in a discussion and presenting a different film. The primary message of the instruction emphasizes the value of the child as a human being. The concepts are introduced and developed using a self-esteem approach:
- you are valuable
- you are the best person to protect yourself
- you have rights
- you can communicate
- you have power
- you can get help
Specific strategies-say "no," get away and tell someone-are presented in both the lesson and the film, "Better Safe than Sorry, II." The film presents real-life situations in a what-if format; students react with the children in the film to potentially abusive situations involving strangers, a neighbor and someone in the family. They learn to say "no" to an adult who is bothering them and that not all secrets should be kept. Telling how you feel is the best rule to follow even when it is another person making you feel funny, bad or uncomfortable. Children are told who to tell and specifically introduced to those at the school site who are available for help. Students are instructed to keep telling until believed. Children learn they have a right to body privacy and that some parts of the body, "private parts," need special protection. After they practice various ways to say "no;" they learn ways to remove themselves from uncomfortable situations. The concepts "It's not your fault" and "It's right to tell" are emphasized throughout.
After the lesson and film, children have an opportunity to ask questions. Strategies for protection are reinforced and private crisis counseling is immediately available. Four to six weeks later, the SCAN Team members review the concepts using another film, "Now I Can Tell You My Secret." At this time strategies are re-taught, and who and how to tell is reemphasized. If a child discloses or is identified as needing intervention or referral, the SCAN Team members will report to the appropriate agency and coordinate needed services.
The CARE student instruction stresses safety not fear. It maintains a balance between addressing past and current victims, and not scaring other children. It teaches children that they have rights. It emphasizes the child's self-worth and value. The information provides children the skills necessary for self-protection in potentially abusive situations and gain the confidence to apply these skills. The goal of the instruction is that children learn how to respond to any type of threatening situation. A secure child who knows he is valuable and trusts his feelings is better prepared to recognize potentially dangerous situations, react appropriately, and keep himself safe.
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