_do_

Provisions

Penalty

Prohibits production and distribution of materials with minors Felony of $10,000 to $20,000, and /or 5 to 10 yr, engaged in obscene sexual conduct.

Obscenity law; law against the sexual solication of a child; contributing to delinquency; sexual abuse; or rape.

No specific law; alternative KS 1976 State obscenity law prohibits production and distribution of

supp. 21-4301.

No specific law.

No response.

do.

None; bills expected in 1978.

obscene material.

Missouri
Montana.
Nebraska.

Nevada

do.

New Hampshire.

1977, ch. 199.

Prohibits use of minors in pornographic material, and sale of Fine of up to $500, and/or 1 yr. material.

do.

Prohibits preparation, distribution or exhibition of obscene Misdemeanor-up to $500 and/or 6 mo. for 1st offense; up to matter to minors.

$1,000 and 1 yr for subsequent. Misdemeanor if person
knowingly hires minors.

B-10 Marianne E. Cahill, National Council on Crime and Delinquency.

Mr. HAYDEN GREGORY,

MOTION PICTURE ASSOCIATION OF AMERICA, INC.,
Washington, D.C., May 21, 1977.

Subcommittee on Crime, Committee on the Judiciary, U.S. House of Representatives, Cannon Building, Washington, D.C.

DEAR MR. GREGORY: Enclosed is an original and 10 copies of the MPAA's com ments on H.R. 3914.

I am deeply sorry that our schedules did not permit a personal appearance by anyone from the Motion Picture Association.

Sincerely yours,

BARBARA SCOTT,
General Attorney.

Enclosures.

MPAA COMMENTS ON H.R. 3914

The Motion Picture Association of America ("MPAA") is a trade association whose members are Allied Artists Pictures Corp., Avco Embassy Pictures Corp.,' Columbia Pictures Industries, Inc., Metro-Goldwyn-Mayer, Inc., Paramount Pic tures Corporation, Twentieth Century-Fox Film Corporation, United Artists Corporation, Universal Pictures and Warner Bros. Inc. These companies are producers and the prinicipal distributors of most of the theatrical films ex hibited in the United States. The MPAA companies do not produce or distribute or exhibit poronographic motion pictures or any motion pictures which we as sume are intended to be covered by this proposal.

The Subcommittee has requested our views on H.R. 3914. The bill would' amend the United States Code to prohibit the use of minors for sexual exploita tion in photographs and fiilms that are distributed in interstate commerce. We recognize and fully concur with the concern of the Congress and the public generally with this issue. In our opinion, H.R. 3914, as drafted, raises the following constitutional problems.

H.R. 3914 IS UNCONSTITUTIONALLY OVERBROAD AND VAGUE ON ITS FACE Sections 2251 and 2252 prohibit the distribution and use of a person under 16 in a motion picture "depicting a child engaged in a prohibited sexual act or in the simulation of such an act."

Section 2253 defines "prohibited sexual acts”, inter alia, as :

(I) any other sexual activity; or

(J) nudity, if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction. ' Subsections "(I)" and "(J)" are unconstitutionally overbroad and vague. The United States Supreme Court has consistently held that motion pictures constitute a form of speech entitled to the protection of the First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975); Jenkins v. Georgia, 418 U.S. 153 (1974). As speech, dissemination of motion pictures can only be restrained when it is obscene (Miller v. California, 413 U.S. 15 (1973), libelous (Beauharnais v. Illinois, 343 U.S. 250 (1952), or constitutes "fighting words" (Chaplinsky v. New Hamp shire, 315 U.S. 568 (1942).

Regulations of speech which exceed these bounds have consistently been held to be unconstitutionally overbroad and vague. NAACP v. Button, 371 U.S. 415

(1963); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307-8 (1964); Gooding v. Wilson, 405 U.S. 518, 520 (1972); Grayned v. City of Rockford, 408 U.S. 104, 108-9 (1972); Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975); Interstate Circuit, Inc. v. City of Dallas, 391 U.S. 53 (1968).

Subsection 2(I) is defined as any sexual act other than those enumerated in subsection (A) through (H) and subsection (J). This subsection is not aimed at any particular act, much less one that is obscene. It sweepingly prohibits any and all undefined sexual conduct as per se illegal.

Its overbreadth is obvious.

Subsection 2 (P) includes within the prohibited sexual acts depictions of nudity if the nudity is for the stimulation or gratification of the viewing audience. In Erznoznik v. City of Jacksonville, supra, the Supreme Court was faced with a statute concerning nudity whose defects were similar to the ones involved here. The Court held that the restraint of a motion picture solely because it depicts "nudity" was unconstitutionally overbroad and invalid. Subsections (I) and (J) would not therefore withstand constitutional scrutiny and we suggest that they be deleted and a substitute provision be inserted which would read as follows:

"(I) A lewd exhibition of the genitals in the context of sexual activity." This language which is precise and limited in scope does not suffer from the constitutional defects of §§ (I) and (J).

Section 2252 not only makes criminal the distribution of films depicting children engaged in the prohibitive sexual acts enumerated in Section 2253, but also prohibits the distribution of any films in which such acts are “simulated." The inclusion of the term "simulated" without a qualification as to its meaning is similarly unconstitutionally vague and overboard. On the one hand, this term could include the depiction of the performance of the entire sexual act short of consummation, and on the other it could include scenes which skillfully suggest sexual activity but do not depict the prohibited act.

We recommend that the word "simulated" be defined and a new Subsection 3) of § 2253 be inserted to read as follows:

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(3) The term 'simulation of such an act' means the depiction of the genitals in explicit sexual activity which gives the appearance of consummation of prohibited sexual acts."

The proposed addition of the reference to "an explicit depiction of human genitals" conforms the definition to the language used by the Court is those decisions. In Jenkins, supra at 161, the Court stated:

"While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including 'ultimate sexual acts' is to be understood to be taking place, the camera does not focus on the bodies of the actors at such time. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards." (Emphasis added)

The addition of these amendments would in our opinion cure the constitutional vagueness and overbreadth now contained in subsections (I) and (J) and the phrase "simulated."

We have not addressed the question of whether § 2252 would unconstitutionally restrain the distribution of non-obscene motion pictures.

If the purpose of the bill is to provide a statutory basis for criminal prosecution of those who actually exploit minors sexually, then it should be limited to the punishment of the individuals who actually engage minors in the making of such films and should not restrain the exhibition or distribution of those pictures if they are not legally obscene, Miller v. California.

The deletion of § 2252 would, of course, cure this constitutional defect. BARBARA SCOTT, General Attorney.

STATEMENT BY ROBIN M. LLOYD, AUTHOR OF FOR MONEY OR LOVE, BOY PROSTITUTION IN AMERICA, PUBLISHED BY VANGUARD PRESS, 424 MADISON AVE., NEW YORK, N.Y. IN MARCH 1976. THE STATEMENT IS MADE AT THE REQUEST OF DEAN WILKINSON, AIDE TO CONGRESSMAN DALE KILDEE,

It is my understanding that Congressman Dale Kildee (together with Congressman John Murphy) is seeking information regarding the use of American children in commercial pornography to determine whether new legislation is

need to protect children from sexual exploitation. I offer these comments based on a considerable amount of research undertaken to compile the data for my book.

The answer to the question on whether such protective legislation is needed is a resounding YES.

Over the past month, the press has reported numerous cases of children being sexually exploited and the public-quite understandably-has become angered and aroused. The public has been shocked by the sheer numbers of the children › involved. The truth. is, however, nobody really knows for sure just exactly what these figures are. But everyone who has worked in this field agree that the figures are big-much too big-and certainly big enough to warrant prompt federal and state action to diminish them.

Certainly, there is a need for an immediate study to document the extent of child-pornography but there is no need to wait for such a study to be com-: pleted before taking protective action.

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We know that one-million American children run away from home searching for a better way of life. This has been documented by Senator Birch Bayh's subcommittee to investigate juvenile delinquency and confirmed by numerous other studies. It is from this vast army of dispossessed and disenchanted children that many are selected by the porno merchants for exploitation.

We know that shortly after the Houston murders of 27 young boys in 1973, John Paul Norman was arrested in Dallas for running a call-boy service by mail. Norman's files taken in the police raid included a master-list of some 50-thousand prospects for the services of literally hundreds of boys.

We know that in 1975, Houston police arrested Roy Ames after finding a warehouse full of pornography including 15-thousand color slides of boys in homosexual acts, over one thousand magazines and paperback books plus a. thousand reels of film.

We know that in Santa Clara, California, police arrested a local high school teacher and a photographer who had been running a porno ring in that town for over ten years. 250 different boys were involved and over 10-thousand pictures were taken in the raid. The photographer also told police he had destroyed at least four times that amount.

More recently we have read about seven adults being arrested in New Orleans for using members of Boy Scout Troop 137 for the production of pornographic materials that were distributed nationwide. A similar case in Tennessee-still to be tried-involves an Episcopal priest who used the boys in his Boys Home for similar purposes. Also in Tennessee, another Scout leader was just sentenced to 30 to 45 years for sexual activities with members of his troop. There was a similar case in Waukesha, Wisconsin.

I could continue to present case after case; a veritable litany of woes to support what has been claimed; that large numbers of American children are being coerced into performing sexual acts for pornographers.

We had thought that child-pornography was mostly produced in Europe but investigations have now revealed that much of it is produced right here in the United States. One producer advertises on his promotional material that the films he offers are already here in this country. Working with the Los Angeles Police Department, I ordered a reel of child-pornography film from an address in Denmark. When the film arrived courtesy of the U.S. Postal Service, the package had a Los Angeles postmark. This information, coupled with other information, finally led to the location of the distributor.

It was a little unnerving to find that when his operation was raided, it was housed in the apartment building next to mine!

The child-pornography business has become a multi-million dollar industry. By my own count, I found 264 different magazines being sold in adult book stores across the country dealing with sexual acts between children or between children and adults. These magazines-well produced-sell for up to $7.00 each; one of them so exclusive it deals with homosexual acts between identical twin brothers.

Quite recently, a man with the unlikely name of Guy Strait was sentenced to a lengthy prison term in Rockford, Illinois for using children for pornography. Mr. Strait was considered to be a big producer. His partner, Bill Byars is the heir to the Humble Oil fortune and fled the country a couple years ago to Italy. These partners produced vast amounts of pornographic films and magazines. But when Houston police arrested Roy Ames, Ames described them as small-time