I trust that both subcommittees will view the bill in the manner which was intended: A vehicle to be refined, strengthened, broadened, and ultimately passed into a law which is absolutely necessary to protect our children from the most vicious creatures that breathe, the pornographers who live off the blood of children. Mr. BRADEMAS. Thank you very much, Mr. Murphy. Mr. Conyers? Mr. CONYERS. I wanted to commend my colleague for the fervor and the emotion with which he obviously invests in this subject matter and also assure him that this subcommittee will be very careful in exploring the benefits that he recommends as the ultimate necessity of additional legislation. There are a number of things that I would want to discuss with him further on the record, but I will do it off the record because we do have a serious time problem now. You should be aware, however, that the American Civil Liberties Union before the Subcommittee on Crime was not opposed to additional legislation. They were concerned about the constitutional question which if you heard the representative from the Department of Justice before us, indicate under my questioning that the obscenities is going to apply no matter what law that we come up with, and even the bills that are now under consideration are going to when they reach the courts be subject to the same test that has already been erected by the courts. So we are very mindful of these kinds of pitfalls and we would like to do more than just add another bill to the box, so I think we are all grateful to our colleague for coming before us. Mr. BRADEMAS. Mr. Jeffords? Mr. JEFFORDS. No questions other than to echo the comments of the chairman of the subcommittee of the Judiciary. Mr. BRADEMAS. Mr. Gudger? Mr. GUDGER. I want to commend Congressman Murphy upon the sincerity and effectiveness of his presentation. I come from one of those six States that have been trying to deal effectively in this area, and have a very sincere appreciation of your concern, your objectivities, and share your desires to see some legislation develop here. I will not undertake any questions at this time. I already indulged to some degree in questioning the previous witness who testified. But I do look forward to discussing this matter with you personally. Mr. BRADEMAS. Mr. Miller? Mr. MILLER. Thank you, Mr. Chairman. Congressman Murphy, just one question. You comment on page 5 in your statement on the question that had been raised regarding perhaps the requirement of certification as to the appropriate age of children, and you claim that: The burden would be placed upon legitimate producers who want to comply with the law, while those pornographers who are already breaking the law by their actions are highly unlikely to worry about not filling out another Federal form which, in effect, would constitute an admission of either guilt or perjury. It seems to me there is some merit to certainly looking at that proposal in the sense that legitimate filmmakers, since we have just heard very possibly "The Exorcist" would be in trouble, a legitimate film maker who still wants to make the scene now, maybe wants to use an 18-year-old female, who looks 14 or 15, or whatever, for the purposes of 94-079 - 78 - 22 carrying out what he conceives to be his product, can say, "I am not prepared to use a young child for this purpose, yet I want to make the film in this way." Also, it seems to me more for the illegitimate filmmaker person using minors for profit on expiration you have a handle by which to really intercept and grab the product. Mr. MURPHY. To address the question of that particular film I think the producers generally agree that scene was not necessary to the plot and they could have done without it where they use a child who falls in this category. But the question of filling out a form and filing it just seems to me to be another form that only legitimate businesses and legitimate producers would comply with. Mr. MILLER. It is a little bit like also filling out our tax forms. It is just another form until you do it illegally and do it with the purpose of committing fraud and then it becomes more than that form. It becomes a piece of evidence and a vehicle by which you would start the search or vehicle by which you can match the product against the evidence, and that would be my concern, because they may or may not, people may have conceded now because it has been used so many times. As an example, "The Exorcist" could have been made without that scene but somebody exercised their sense of filmmaking and made that film, or as was pointed out by Richard Dreyfuss, the actor, in "American Graffiti," the point would be, should they have the ability to avoid prosecution, and still not be brought by censorship, have a vehicle by which to escape it in the legitimate filmmaking industry. Mr. MURPHY. I would say that would be a matter for the committee's judgment. I just expressed my own personal feeling on it. Mr. MILLER. Thank you. Mr. BRADEMAS. Mr. Murphy, I also want to join my colleagues in expressing warm appreciation to you for your statement, and I am well aware of your deep interest in this problem and your concern that we shape some legislation to deal with it responsibly. Because I must go to another meeting, I am going to ask the gentleman from Michigan, the chairman of the other subcommittee, to assume the chair, and then if he finds it necessary to in turn go to another meeting, ask the gentleman from California, Mr. Miller, the ranking member on our side, to assume the chair. Again, Mr. Murphy, I want to thank you and especially to thank my colleague from Michigan, Mr. Conyers. Mr. CONYERS. I want to thank you. Are there any questions further of the gentleman from New York, Mr. Murphy? We want to thank our colleague for his contribution. He can be assured we will take his recommendations into very thorough consideration. [The attachments to Mr. Murphy's statement follows:] [From the Congressional Record, Mar. 8, 1977] CHILDREN IN PORNOGRAPHY The SPEAKER. Under a previous order of the House, the gentleman from New York (Mr. Murphy) is recognized for 15 minutes. Mr. MURPHY of New York. Mr. Speaker, the bills which I introduce today are ones in which the necessity for legislation is a sad commentary on the state of our society. The bill is aimed at the cessation of the use of children aged 3 to 16 in the production and marketing of pornographic materials. It is a problem which, unfortunately, continues to grow larger, and which contributes heavily to the decline of our moral fiber and to the destruction of the lives of thousands of children. I wish to emphasize the size of the problem. We are not speaking of just a few isolated instances of an errant youngster appearing in a questionable film; reliable testimony places the number well into the multithousands. Nor are we necessarily speaking of teenagers; magazines and films currently on the market depict children as young as 3 years of age in what are outrageously obscene and degrading portrayals of sexual activity. The fact that a market exists for such material is distressing enough, but the facts behind the use of children in pornography should be brought to light. First, I think it is quite obvious that a child in the age range of 3 to perhaps 12 years has little, if any, sexual awareness of the society which surrounds him. In such an instance, it is almost an impossibility for the child to make a conscious decision to engage in pornographic activity for film making purposes. A child of 5 simply does not hop in a cab to go to his local pornographer to shoot a "skin flick." There is, in every instance, the guidance of an adult who is in the business for the money. In some cases, parents sell or rather, rent-their children; in some instances it is a guardian or relative, or perhaps the pornographer himself who instigates the use of the child in the exposure to sexual activity for commercial purposes. In many cases, the child might be a runaway, a teenage prostitute, a drug addict, or other delinquent in search of a means of supporting himself. One researcher documents over 30,000 boy prostitutes in America; other statisticians extend that figure to at least double that amount-nearly 600,000—— girl prostitutes, in addition to literally millions of runaways and addicts who are drawn to pornography as a means of existence. But what little, if any, financial benefits these children derive from their appearance in pornographic materials is dwarfed by the profits reaped by the producers of the movies, magazines, playing cards, novelty items, and other materials. One needs only to examine some of the leading magazines in the field to notice two things in particular. First, the production of pornography is a multi-million-dollar business-some estimates exceed $1.1 billion. Magazines are of the high-cost slick variety, with expensive multicolor formats and retail prices of anywhere from $5 to $25; movies are generally 8-millimeter silent, black and white, with a retail cost of $20 to $50 each for something which cost no more than a cheap hotel room and a handheld movie camera to produce. The second thing one notices is that interstate commerce is, in the case of magazines, admitted to: many note in their mastheads that they are produced in one State, printed in another, and distributed from a third. It is in this area of interstate commerce that the Congress must intercede. I have attached, and ask for insertion in the Record, a study prepared by the Library of Congress outlining existing State and Federal statutes regarding pornography. Forty-seven States and the District of Columbia have some type of special prohibition against the dissemination of obscene material to minors. Only six, however, prohibit the participation of minors in an obscene perform ance. As noted in the study, it is the State's prerogative to act in the interest of the well being of its children. We can see that most States have not been so inclined to act. There are already five Federal laws which prohibit distribution of obscene materials, all of which first depend on a definition of just what constitutes obscene. One such law prohibits mailing of such material, another blocks importation, one proscribes broadcast, and two prohibit interstate transportation or use of common carriers to transport obscene materials. But I must emphasize that all the existing Federal statutes have a single major failing, in addition to their lack of specificity with regard to the use of children. Before any can be enforced, it must first be determined that the materials in question are indeed within the definition of the term "obscene." The courts, including the Supreme Court, have been trying for decades to arrive at a suitable and generally acceptable guideline. Coupled with the first amendment's freedom of speech guarantees, definition of the term "obscene" and the application of supposedly constitutional rights to express oneself have become an almost insurmountable obstacle to enforcement of antiobscenity laws. But no rational person can possibly believe that such guarantees include a right to exploit young children sexually. And the horrible results of this ex ploitation can never be quantitatively determined . . . who can measure the deep emotional scars of the on-camera violation of a 7-year-old girl, the warped perspective of four preteen boys engaged in group sex, or lifelong guilt feelings of runaways or addicts who turn to pornographic performances on film as a means of subsistence for a few fleeting moments. The documentation is occasionally obtuse. For example, one researcher, taking approximately a dozen recent magazine series, identified nearly 400 different children, ranging in age from about three to the early teens, engaged in the entire spectrum of sexual activity, from normal intercourse to oral contact to sadism and masochism. Many of the movie performers appear to be experienced in their roles, while many more constantly look off-camera for instruction and guidance in what is obviously an unfamiliar performance in what could be described as uncomfortable circumstances. Whatever the reasons for the child's appearance in the movie or magazine; whatever the motives or causes espoused by the adult responsible for it, I feel certain there is not a single person among us who could justify it in any form. The use of children in pornography is one of the most despicable practices I can possibly imagine, and to passively condone it by refusing to legislate against its increasing practice is to me equally abhorrent. The proposed legislation takes a very direct and reasonable approach. In it, we have: First, described a specific list of "prohibited sexual acts" which a child under age 16 shall not be caused or permitted to engage; second, on film; third meant for interstate commerce. There is a somewhat gray area in which Congress might conceivably be permitted to legislate intrastate commerce where it affects interstate commerce, but such a subjective approach would only serve to weaken our bill, in my opinion. Our bill not only applies to the producer/ entrepreneur and photographer of such pornographic materials, but to the transporting, receiving or selling of those which involve children. I would also point out that the terminology of "causing or permitting" the use of a child in pornography would also apply to parents, guardians or other irresponsible adults involved in the exploitation of children. The penalties for the pornographer, photographer or other responsible party would be a $50,000 fine or 20 years imprisonment, or both; those who transport, receive or sell such materials would be subject to $25,000 or 15 years, or both. Mr. Speaker, more than 75 of our colleagues have joined Mr. Kildee and myself in the cosponsorship of this bill; half were listed yesterday along with Mr. Kildee; the balance join me today. They represent every region of this Nation. and they reflect an intense amount of public interest and involvement by such respected organizations as Odyssey Institute of New York, who expanded their drug treatment programs to include a center for child abuse, and through the institute, they have conducted a nationwide campaign against pornography and other abuses of children. I might even point out that this legislation has the tacit support of the Adult Motion Picture Producers Association, who told a member of my staff that "the line has to be drawn somewhere," and that such use of children in pornography was distasteful to their unwritten code. Pornography is one of the major building blocks of organized crime, a major source of revenue ranking with drugs, prostitution and gambling. No amount of legislation can realistically remove all traces of it from the American marketplace, but we can act to protect the lives and futures of thousands of children being exploited by these purveyors of filth. I understand that the Education and Labor Committee is currently considering the provisions of the Child Abuse Prevention and Treatment Act-Public Law 93-247. It is my intention to request the chairman, Mr. Perkins, and the ranking minority member, Mr. Quie, both of whom have joined us as cosponsors, to press for hearings on this and similar legislation with all possible haste. To recognize a problem is only the beginning. To act upon it immediately is the first step toward progress. Federal and State statutes regulating use of children in pornography follows: THE LIBRARY OF CONGRESS, Washington, D.C., March 1, 1977. FEDERAL AND STATE STATUTES REGULATING USE OF CHILDREN IN PORNOGRAPHIC MATERIAL There are presently five federal laws which prohibit distribution of "obscene" materials in the United States. One prohibits any mailing of such material (18 U.S.C. § 1461); another prohibits the importation of obscene materials into the United States (19 U.S.C. § 1305); another prohibits the broadcast of obscenity (18 U.S.C. § 1464); and two laws prohibit the interstate transportation of obscene materials or the use of common carriers to transport such materials (18 U.S.C. §§ 1462 and 1465). In addition, the 1968 federal Anti-Pandering Act (39 U.S.C. § 3008) authorizes postal patrons to request no further mailings of unsolicited advertisements from mailers who have previously sent them advertisements which they deem sexually offensive in their sole judgment, and it further prohibits mailers from ignoring such requests. There is no present federal statute specifically regulating the distribution of sexual materials to children. Five federal agencies are responsible for the enforcement of the foregoing statutes. The Post Office Department, the Customs Bureau, and the Federal Communications Commission investigate violations within their jurisdictions. The F.B.I. investigates violations of the statutes dealing with transportation and common carriers. The Department of Justice is responsible for prosecution or other judicial enforcement. It has long been recognized that the state has a valid special interest in the well-being of its children. Prince v. Com. of Massachusetts, 321 U.S. 158 (1944). A state may regulate the materials that juveniles view and read even if they could not be proscribed for adults. In Ginsberg v. New York, 390 U.S. 629 (1968), the U.S. Supreme Court upheld a New York criminal statute that barred commercial dissemination to minors. The defendant in Ginsberg contended that the state statute violated the First Amendment. In response, the Court stressed that the statute applied only to sexually oriented material that was found obscene under a constitutionally acceptable definition of obscenity. There was no First Amendment violation since, as the Court had noted in prior decisions involving "general" (adult) obscenity statutes, obscene material is not protected speech under the First Amendment. The Ginsberg opinion also noted that the state had ample justification to sustain its regulation of an activity that was not protected by the first amendment. The Court noted two state interests that combined to support the New York prohibition against the commercial dissemination of obscene material to minors. First, the legislature could “rationally conclude" that the exposure of minors to obscene material was "harmful" to the youths' "ethical and moral development." Second, the state could appropriately seek to support the interest of parents in controlling their children's access to obscene material. Forty-seven states and the District of Columbia have some type of special prohibition against the dissemination of obscene material to minors. However, our research revealed that only six of these states have provisions prohibiting the participation of minors in an obscene performance which could be harmful to them. These states are: CONNECTICUT GENERAL STATUTES § 53-25. Unlawful exhibition or employment of child ANNOTATED Any person who exhibits, uses, employs, apprentices, gives away, lets out or otherwise disposes of any child under the age of sixteen years, in or for the vocation, occupation, service or purpose of rope or wire walking, dancing, skating, bicycling or peddling, or as a gymnast, contortionist, rider or acrobat, in any place or for any obscene, indecent or immoral purpose, exhibition or practice or for or in any business, exhibition or vocation ..jurious to the health or danger |