NET Policy Insights
Number 519
December 1993

Reinventing Child Pornography

In an attempt to combat a United States Department of Justice Supreme Court brief which reinterprets and weakens child pornography laws, Senator Charles Grassley (R-IA) and Representative Chris Smith (R-NJ) have sponsored legislation to put Congress on record reaffirming the original intent of the current child pornography laws.

To be considered child pornography under the new Justice Department interpretation, material must include children’s nude or visible genitals and must depict a child intentionally posing in a lascivious manner. Previous policy had not required nudity and measured lasciviousness in terms of the viewer’s response, not the child’s actions.

According to Senator Grassley, “The Clinton Justice Department’s view of the statute would create a safe harbor for child pornographers and pedophiles. Child exploiters could drive a truck through the holes in the statute that the new interpretation opens.”

The Senate unanimously passed the Grassley amendment on November 4, 1993.

Background
On September 17, 1993, the U.S. Department of Justice filed an amicus brief in the U.S. Supreme Court case Knox v. U.S. that reinterprets the federal child pornography statute in a way that would legalize most child pornography. This is a major change in position; the Department previously had supported the conviction brief reinterprets the current federal child pornography laws in a way that would make legal much of the material prosecuted as child pornography in the past. This brief represents a major change from the previous Administration, which had supported the conviction of pedophile Stephen Knox.

Customs agents intercepted child pornography advertisements sent to Knox from the Netherlands. Agents searched his home and seized videotapes such as Ripe and Tender, Young Flashers, and Sweet Young Things.

The U.S. Court of Appeals for the Third Circuit described the tapes as follows: “In each vignette the subject of the video would strike various poses which were obviously being directed by someone off-camera. Whenever a particular pose revealed the girls underpants or the area surrounding her genitals, the camera would zoom in on the area. In the course of each vignette, more than a substantial amount of time was spent focusing in on these areas as well as the girl’s buttocks.”

Knox was prosecuted and found guilty of receiving through the mail and possessing videotapes that “contain a visual depiction of a minor engaging in sexually explicit conduct” defined as “lascivious exhibition of the genitals or pubic area.”

Knox contended that the videos contained no “exhibition of the genitals or pubic area” because all of the shots of the girls’ genitals were covered. He attempted to read a nudity requirement into the pornography statute and appealed his case to the Supreme Court.

Justice Department Changes Policy
In his court brief, Solicitor General Drew Days of the Department of Justice took exception with the court of appeals and sided with Knox. The Department’s brief represents a major change in child pornography policy in two areas. Days wrote: “In our view, the plain meaning of the statute requires a prohibited depiction to contain two elements that the court of appeals did not consider: (a) the material must include a visible depiction of the genitals or pubic area of the body (as distinguished from a depiction of the clothing covering those areas)… (b) the material must depict a child lasciviously engaging in sexual conduct (as distinguished from lasciviousness on the part of the photographer or consumer).”

The first requirement means that material depicting children in sexually explicit, but not completely nude, poses would be excluded from the statute. Supporters of the Grassley and Smith legislation argue that Congress deliberately omitted a nudity requirement in the federal child pornography statute. In the Knox case, the court of appeals pointed out that Congress considered including nudity as an element of the crime but “repudiated” this intention. Furthermore, the court argued, “the harm Congress attempted to eradicate by enacting the child pornography laws is present when a photographer unnaturally focuses on a minor child’s clothed genital area with the obvious intent to produce an image sexually arousing to pedophiles. The child is treated as a sexual object and the permanent record of this embarrassing and humiliating experience produces the same detrimental effects to the mental health of the child as a nude portrayal. The rationale underlying the statute’s proscription applies equally to any lascivious exhibition of the genitals or pubic area whether these areas are clad or completely exposed.”

With regard to the second distinguishing factor, in the past the Department’s position has been that whether a photo or videotape is “lascivious” depends on whether the material is intended to elicit a sexual response from the viewer. The new interpretation focuses on the intention of the child rather than the pedophile.

Critics of the Justice Department’s brief argue that this allows the pornographer to continue exploiting children. They point to the common practice of child pornographers secretly photographing children who are drugged, sleeping, or innocently playing on the beach_children who are too young to know how to display their bodies in a lascivious manner. Often they use zoom lenses focusing on the genitals to film or photograph innocent children. Obviously these children have no intent to be lascivious.

Instead of asking the Supreme Court to affirm the conviction against Knox, the Solicitor General argued the court of appeals “utilized an incorrect interpretation of the federal child pornography statute” and requested the case be sent back to a lower court for a hearing considering the Department’s new more lenient interpretation of the child pornography laws.

On November 1, 1993, the Supreme Court agreed to the Department of Justice request and sent the case back to the court of appeals, “for further consideration in light of the position asserted by the Solicitor General in his brief.”

This is very significant because the job of the Solicitor General is to defend the constitutionality of statutes and to persuade the court to adopt interpretations that further government objectives. Even more important is Attorney General Janet Reno’s position. Despite all of her tough rhetoric about protecting children, when she was questioned about the Solicitor General’s change in the definition of child pornography, she said she agreed with it.

Legislative Status
The Grassley and Smith legislation, S.1607 and H.R.281, are very similar. S.1607 states that in filing its brief in the Knox case, the Department of Justice did not accurately reflect the intent of Congress in arguing that “the videotapes constitute ‘lascivious exhibition of the genitals or pubic area’ only if those body parts are visible in the tapes and the minors posed or acted lasciviously.”

H.R.281 states “that the Department of Justice [should] repudiate its reinterpretation of Federal child pornography laws, defend the conviction won in lower courts in the Knox case, and vigorously prosecute sexual exploitation of children.”

On November 4, 1993, by a unanimous vote, S.1607 was passed as an amendment to the crime bill in the Senate. However, the legislative battle is far from over. House members are pushing for a vote on H.R281 as soon as possible. Supporters of the bills hope passage in both the House and Senate will clarify the congressional intent of child pornography laws and pressure the Reno Justice Department to change its new lenient position.

Conclusion
The issue at stake here is much broader than whether Stephen Knox goes to jail for child pornography. If the new policy set by the Department of Justice is allowed to prevail, much of the child pornography that has been prosecuted in the past will be protected. This policy would also, in the words of the court of appeals, “create an absolute immunity for pornographers who pander to pedophiles by using as their subjects children whose genital areas are barley covered.”

This issue of POLICY INSIGHTS was written by Susan Hirschmann, Executive Director of Eagle Forum.