Spurred by a recent U.S. Supreme Court ruling, key Senate leaders
today introduced legislation that would outlaw the distribution
of images that have been digitally "morphed" to look like child
pornography.
Senate Judiciary Committee Ranking Republican Orrin Hatch (R-Utah)
offered the bill in response to the high court's decision to void the
Child Pornography Protection Act of 1996, a law that he authored.
That law banned possession or distribution of pornography containing
computer-generated images showing children apparently engaged in sex
acts. The court overturned most of the law, calling it overbroad and
unconstitutional.
Hatch said the updated measure was necessary because accused child
pornographers now routinely seek to escape conviction by claiming
that there is "reasonable doubt" as to whether the computer image is
that of a real child.
"While I firmly respect the Supreme Court's role in interpreting the
Constitution, the decision left some gaping holes in our nation's
ability to prosecute child pornography effectively," Hatch said in a
statement. "We must now act quickly to repair our child pornography
laws to provide for effective law enforcement in a manner that
accords with the Court's ruling."
The measure "prohibits visual depictions of actual or apparent minors
actually engaging in the most hardcore forms of sexual activity" when
the depictions "lack serious literary, artistic, political or
scientific value."
On its face, the bill appears similar to legislation proposed by
House Crime Subcommittee Chairman Lamar Smith (R-Texas) and backed by
U.S. Attorney General John Ashcroft. Smith's panel passed the bill
out of committee last week.
But according to Judiciary Committee Chairman Patrick Leahy
(D-Vt.) - a co-sponsor of the bill - the Bush administration's
proposal could run afoul of the same constitutional problems cited
by the Supreme Court.
"The entire approach that the administration has taken in this
matter is to reach as far as possible, not to hedge its bets, and
simply to throw down the gauntlet on the steps of the Supreme
Court, daring it to strike down the law yet again," Leahy said.
Leahy said he has already received input from a half-dozen
constitutional experts who expressed "grave concern" about possible
First Amendment violations in the Justice Department proposal.
"Everyone wants to protect our children, but we need to do it with
cases and laws that don't get tossed out in court," he said.
Under the Hatch-Leahy bill, convicted child pornographers could be
sentenced to up to 15 years in prison. The legislation also directs
the U.S. Sentencing Commission to increase penalties for people who
travel across state lines to have sex with children.
The legislation child pornography victims to sue their exploiters.
The legislation allows police to arrest pornographers when the
people portrayed in the images are virtually indistinguishable from
real children. The bill creates a legal safe harbor for
pornographers who can prove that they did not use real children to
create their images.
In addition, the measure also would require the Justice Department to
hire another 25 trial attorneys dedicated to prosecuting child
pornography cases.
Leahy said that while the enforcement provisions in the bill probably
would not result in a Supreme Court challenge, other provisions in
the measure could raise First Amendment concerns.
"Other parts of the bill are closer to the First Amendment line, and
I expect that the debate on the constitutional issues raised by this
bill will be vigorous," Leahy said.
The Hatch-Leahy bill is titled the "Prosecutorial Remedies and
Tools Against the Exploitation of Children Today Act of 2002."
