Child Protection Act of 1984

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The Child Protection Act of 1984, passed in response to the 1982 U.S. Supreme Court case New York v. Ferber, changed the meaning of "sexual conduct" to include certain non-obscene pictures of children. The Act also raised the age of "children" for purposes of the law from sixteen to eighteen, thereby vastly extending the universe of "child pornography." This was done because, in most cases, prosecutions are based on the pictures alone and it was difficult to show that the child was under sixteen. Thus, by raising the age of the minor to eighteen, the statute would better enable prosecutors to proceed against violators with materials involving fifteen-and sixteen-year-olds.

Convictions rose dramatically under the revised law. Under the 1977 Protection of Children Against Sexual Exploitation Act, only twenty-three defendants were convicted during the seven years it was in effect (all of those violations were for the distribution rather than the production of child pornography). In contrast, at least 214 defendants were convicted in the twenty-eight months following the enactment of the 1984 law.

The 1984 Act made other significant changes, such as increasing the maximum fines tenfold, and removing the requirement that the transmission or receipt of child pornography be done for profit, thereby targeting the growing non-commercial cottage industry, in which many of the materials were distributed by gift or exchange. Fines increased from $10,000 to $100,000 for a first offense. In addition, the law clarified that purely textual pornography did not fall within the scope of the statute; the language substituted "visual depiction" for "visual or print medium," which could be interpreted to include text. The law also added sections dealing with civil and criminal forfeiture.

Congress replaced "lewd" with "lascivious" because "lewd" had been associated with obscenity and Congress wanted to make it clear that an exhibition of the genitals or pubic area did not have to meet the obscenity standard to be unlawful.

Legislative history

The House Judiciary Committee examined four bills which were proposed as amendments to the 1977 Act. All of the bills had two common elements: (1) the elimination of the obscenity requirement; and (2) the elimination of the requirement that distribution of the materials be for commercial purposes. Three of these bills provided an affirmative defense to prosecutions if the material had literary, scientific, artistic, or social value. The Committee considered the bills before it and proposed a compromise which would provide an affirmative defense allowing "simulation[s]" of "explicit sexual conduct" only if there was no possibility of harm to the minor. This provision, however, was criticized as providing a loophole within the statute. Deputy Assistant Attorney General Mark M. Richard expressed concern on behalf of the Justice Department that such an affirmative defense would create an "appealing loophole" allowing child pornographers to frustrate the purpose of the statute by placing otherwise proscribed child pornography materials within a legitimate literary or scientific work.

Additionally, one of the proposals considered by the House would have defined the word "simulated" in the statute for the first time. This bill defined "simulated" as "the explicit depiction of any ['sexually explicit conduct' as defined], which creates the appearance of such conduct and which exhibits any uncovered portion of the genitals or buttocks. Concerned that the narrow definition of simulated conduct could prove to be a significant loophole to imaginative pornographers, Deputy Assistant Attorney General Richard recommended that the term "simulated" should not be defined or that the definition should not require the exhibition of any uncovered portion of the genitals or buttocks. Other individuals who testified before Congress, such as Senator David D. Marriott, from the Select Committee on Children, Youth, and Families, also agreed that defining "simulated" conduct would leave potential loopholes in the law:

Some may argue that if it is only simulation, there is no harm to the child or children. But one of the evils of child pornography is that children are permanently recorded as engaging in despicable acts. Simulation is no different in this respect because it still creates the appearance that they are engaged in the acts. The children will have to live with that knowledge if these images are out there. We need to protect them from that and also from the psychological damage that may occur to the child....

Now, I realize that to some this is a small loophole in the law, but I also realize that those who would stoop to exploiting children in the production of pornography would be very willing to take advantage of any loophole they thought might be available to avoid prosecution.

Senator Grassley testified that an amendment should not define "simulated" conduct, but should instead "preserve the current law as it relates to simulations of sexual conduct." He explained that "sexually explicit conduct" is defined as "actual or simulated conduct that utilizes any of the prohibited depictions delineated in section 2252(a)(2). Senator Grassley also stated that this preser vation of the term "simulated" would discourage imaginative pornographers from discovering loopholes.