films"-the vernacular for porn films involving children-advertises 10 films in its "lollypops" series. The ads show cartoons of two very young nude boys licking lollipops, the slogan "Chicken Films Come of Age" and graphic descriptions of sex acts, including "Ronnie, Bobby and Eddie three preteens on a bed." The movies are 8 mm, in color, 200 feet and $20 each. There is an address, but directory assistance has no phone listed. Undercover agents recently arrested the firm's owner, charging him with the misdemeanor of promoting obscenity.

"Under present criminal statutes we can't go in with a search warrant and confiscate the films. He could not sell us more copies, and so the only thing we could do is charge him with a misdemeanor," says Manhattan District Attorney Robert Morgenthau. "And we still don't know who the children are or where they come from."

There is some reported case law worthy of mention.

In People v. Byrnes, 33 N.Y. 2d 343, 308, N.E.2d 435, 352 N.Y.S.2d 913 (1974), a father appealed his convictions for rape, sodomy, and incest after his elevenyear-old daughter testified that on two occasions she and her father went to the home of a photographer who filmed them engaging in sexual acts. The father argued on appeal that he was convicted solely on the uncorroborated testimony of his daughter. But the court found that photos of the illicit acts had been properly admitted as evidence. This was an interesting case in that it involved, in part, photos in which one of the participants was not clearly identified. A somewhat similar case is State v. Kasold, 110 Ariz. 558, P.2d 990 (1974), wherein evidence was admitted which included photos of the defendant with private parts exposed, and fully-clothed little girl with her back to the camera. For a discussion of the use of photos of parts of the anatomy as evidence in criminal trials, see 9 A.L.R.2d 889, 923-26 (1950).

In City of St. Paul v. Campbell, 287 Minn. 171, 177 N.W.2d 304 (1970) a conviction for disorderly conduct was reversed where the defendant had photographed a thirteen-year-old girl in the nude but had not created a disturbance in doing so. The court indicated that if the charge had been contributing to delinquency or employing a minor for immoral purposes, a conviction might have been reasonable.

In People v. Burrows, 260 Cal. App. 2d 228, 67 Cal. Aptr. 28 (1968) a conviction for false imprisonment and using a minor in the preparation of obscene materials was affirmed where evidence showed that an adult had bound the complainant hand and foot, abused him sexually, and photographed him in indecent positions.

An interesting question is whether a parent who photographs a nude offspring and circulates the photo to others, or who allows his unclothed child to be photographed even though the picture will be distributed publicly, could be criminally responsible. The photo may not be legally obscene (see below) and a parent may have a legal right to waive his offspring's right to privacy. That an infant should have a right of privacy in the dignity of his body is argued in 12 DUQUESNE L. REV. 645 (1974). But to what extent an infant has a right of privacy independent of the activities and directives of his parent is unclear. See Note, Parental Consent Requirements and the Privacy Rights of Minors: The Contraceptive Controversy, 88 HARV. L REV. 1001, 1008-09 (1975). A child's constitutional rights may be subject to the control of a parent, at least until the child becomes an adolescent. See Note; Torture Toys, Parential Rights and the First Amendment, 46 SO. CALIF. L. REV. 184, 188-201 (1972), and decisions discussed therein. However, there is no constitutional right to engage in an unlimited variety of sexual activities in the home. Sce Cheesebrough v. State, 255 So.2d 675 (Fla. 1971), cert. denied, 406 U.S. 976 (1972). And there is no right of privacy in family sexual affairs if photographs of such activities are taken with parental approval and are allowed to fall into the hands of others. Cf. Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973), aff'd on other grounds, 539 F2d 349 (4th Cir.), cert. denied, 97 S. Ct. 485 (1976).

In such situations (parental photos of nude offspring) a conviction for contributing to delinquency under present laws might still make sense if the reasoning in State v. Locks, 94 Ariz. 134, 382 P.2d 242 (1963) is followed. In Locks, the proprietor of a hobby shop allegedly induced an underaged youth to purchase a magazine containing photos of unclothed adults. In discussing the defendant's possible liability for contributing to deliquency, the court focused on the conduct suggested by the photos. "The suggestion that meretricious sexual relations are acceptable social conduct may be more injurious to the welfare of the child than an act of physical ravishment." Id. at 137, 382 P.2d at 243.

All of the present federal statutes have a single major failing—their lack of specificity regarding children. On both federal and state levels, the need to identify the materials as "obscene" has effectively blocked effective intervention to protect the children or to prosecute the exploiters.

Proposed Legislation

It is well established 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).

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.

From a perspective of controlling obscene activities involving minors, it cannot logically be disputed that the state can constitutionally and properly protect their welfare by restricting materials available to them without, at the same time, possessing the authority and right to also protect the children from having to participate in the production of these materials.

On the federal level, the power to legislate with respect to obscenity has been derived from the constitutional power to regulate commerce. (Art. I, Sec. 8, cl. 3) The development of our child labor laws and the constitutional challenges thereto reflect a present recognition of broad Congressional powers, reaching all phases of our national industrial system.

Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219 (1948); United States v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111 (1942); United States v. South-Eastern Underwriters Assn., 322 U.S. 533 (1944). Therefore, it would appear that Federal legislation could be proposed which would operate in a manner similar to the child labor provision of the F.L.S.A. This law could have the effect of prohibiting the shipment into commerce any motion picture or photograph in which children under a certain age have appeared in the nude or depicted in some other objectionable manner.

A similar analysis is productive in determining the power to regulate intrastate activities the production of the materials involving the sexual conduct of children-where such activities clearly impact on interstate commerce, Maryland v. Wirtz, 392 U.S. 183 (1968); Atlanta Motel v. United States, 379 U.S. 241 (1964). Consequently, it is clear that legislation can be developed to prohibit the sexual conduct itself (and related activities) regardless of whether the ultimate product will enter into commerce, inasmuch as it can be expected to "affect commerce".

Specially, the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the states or origin and destination, which might have a substantial and harmful effect upon that commerce, 379 U.S. at 258.

The proposed legislation is designed to address the sexual conduct and the activities related thereto, from soliciting the child to marketing of the product. There must be an awareness that the printed product cannot be isolated or removed from the process. This process creates substantial harm to children. The protections inherent in the First Amendment provisions regarding freedom of speech are not without some limit. Such guarantees cannot be rationally interpreted to include a right to abuse and exploit young children.

We are not going to produce mentally healthy and happy children by issuing an executive order that all children must be loved... but we can author legislation to protect them and give them a fighting chance in this world. To paraphrase Camus, who spoke for all of us who in some way work with children:

"Perhaps we cannot prevent this America from being an America in which children are tortured. but we can reduce the number of tortured children. And if you don't help us in this... Who else in this world can . . ."

STATEMENT OF THE HON. PETER W. RODINO, JR.

Three areas of child abuse recently have been brought forcefully to the attention of the the public and the Congress. It is time we put an end to all of them.

Two of these are closely related: The abuse of children in interstate pornography and prostitution rackets. The third is less obvious but equally unsavory: the sale of newborn infants across State lines for the purposes of adoption.

All of these are multi-million-dollar businesses which capitalize on the helplessness and innocence of children.

Legislation to establish criminal penalties for these practices has been introduced in the House and currently is pending before two subcommittees of the Committee on the Judiciary.

Bills pertaining to child pornography and prostitution have been referred to the Subcommittee on Crime whose chairman, the gentleman from Michigan (Mr. Conyers) has scheduled hearings to begin next Monday.

Legislation to ban the sale of children for adoption is before the Subcommittee on Criminal Justice, chaired by the gentleman from South Carolina (Mr. Mann). The subcommittee has held one day of hearings in San Francisco and other hearings are anticipated.

Before these measures are reported, however, it will be necessary to establish whether new laws or merely better enforcement efforts of existing ones are needed. The staffs of the subcommittees are making those studies now. In addition, the Subcommittee on Criminal Justice is seeking to ensure that any legislation reported on the adoption issue does not infringe upon the rights and jurisdiction.

Whatever the conclusions of the subcommittees, these are practices that should be halted.

In a number of major cities, children are victimized by adults engaged in the production of pornographic magazines and films, or in the procurement of prostitutes for customers in other States. It would be difficult to underestimate the emotional and physical suffering of these youngsters, boys as well as girls. Degraded and humiliated, treated as commodities not human beings, they face their adult years scarred by their experiences and unable to form lasting, normal relationships.

In a Nation where we place such a high premium on individual dignity, I find it especially repugnant that such businesses could flourish unchecked. Our intent is to ensure that criminal prosecution is assured for those who, for purposes of interstate commerce, induce, entice or force a child to commit sexual acts or to engage in various forms of sexual conduct.

Involved here is an area in which the Federal Government has always retained jurisdiction: The interstate traffic in goods and services that are clearly harmful to the citizens; in this case it would be the children who are so severely abused.

Much of the same principle is concerned in the sale of babies for adoption. This business depends for its existence upon a supply of unwanted or illegitimate babies, and upon the demand from people who have been unable to obtain a child for adoption from a legitimate agency or other source.

The children victimized by this racket are treated worse than cattle; bought and sold without regard for their welfare or future treatment at the hands of people whose qualifications as adoptive parents often are never established.

The costs of children on this market may run as high as $40,000, according to information gathered by Senator Williams of New Jersey who has introduced legislation in the Senate to control this terrible practice.

The essential decency and fairness of this Nation compel us to act on behalf of those children who cannot protect themselves from vicious and dangerous abuses committed by those who seek only a profit. I am confident that we shall fulfill that responsibility.

STATEMENT OF HON. HENRY J. HYDE, ILLINOIS, BEFORE THE SUBCOMMITTEE ON CRIME, HOUSE JUDICIARY COMMITTEE, MAY 25, 1977

Mr. Chairman, I appreciate the opportunity to submit a statement in support of H.R. 6747, a bill I co-sponsored with Mr. Dornan, called the "Child Abuse Prevention Act."

Webster's Dictionary defines pornography as "the depiction of erotic behavior (as in pictures or writing) intended to cause sexual excitement."

Surely there is no human behavior more despicable than that which entices young children to perform erotically for the excitement and satisfaction of sick minds.

The sexual exploitation of children by smut peddlers is rapidly increasing across the Country. No one knows for certain how many young minds have been permanently warped.

Who are the defenders of this filth? Perverted minds that seize upon loop-holes in state and federal laws; those moral cripples who believe the first amendment to the Constitution gives them the “inalienable right” to peddle pornography, as long as there is a dollar to be made.

Every Supreme Court-for 19 decades-has insisted that hard-core pornography does not and should not receive protection under the first amendment. Freedom is not a license to corrupt. The first amendment was not intended to permit the abuse and exploitation of children. To quote the Chicago Tribune editorial of May 19th:

"Not even the most ardent civil libertarian, not even the boldest advocate of first amendment rights, can reasonably defend conduct which can corrupt a child's mind and distort his attitude for the rest of his life. ..."

Why haven't child pornographers been legislated out of business? The corruption of children, whether for the immediate sexual gratification of the corrupters or for the vicarious gratification of others through pornographic photographs, is a clear-cut disgrace which the law should be able to define and deal with. There is a proliferation of state laws throughout the country—

Child molesting and sodomy-maximum sentence is two years, for the second offense, three years.

Aggravated crimes against nature.

Contributing to the delinquency of a minor.

-to name just a few, but those state laws are not strong enough to deal with the magnitude of this crime. Sgt. Lloyd Martin, who heads a special police unit set up in Los Angeles last September to deal with the problem, told the CHICAGO TRIBUNE recently, "We have no problem finding our sex offenders here, but we don't have laws to detain them." Martin cited two cases to illustrate his problem:

"A wealthy man in his 50s was arrested and charged with contributing to the delinquency of a three-year-old girl. The girl's mother, a prostitute who had consented to sex acts between the child and the man, testified against him and he then pleaded guilty. His sentence: THREE MONTHS OF PSYCHIATRIC TREATMENT.

"A prostitute who stars in pornographic movies and a photographer were arrested on charges of conspiracy to contribute to the delinquency of a minor after the photographer took pornographic pictures of the woman's five-year-old daughter. THE PAIR WERE ACQUITTED because the prosecution could not prove specific intent on the part of mother and photographer to contribute to the delinquency of a child."

Each of the 50 states have a responsibility to strengthen their own statutes involving the sexual abuse of children.

Congress can and should take action, and I strongly urge that we at the very least, adopt the "Child Abuse Prevention Act."

Congress should extend the Mann Act to prohibit the transportation of males as well as females across state lines, with emphasis on child pornography. The issue before this Subcommittee, and before the Congress, is not simply one of attempting to define obscenity. The issue is protecting our children. The issue is not one of censorship versus freedom of the press. The issue is whether the grossest sort of perversion can find any Contitutional protection. If "consent of the governed" has any meaning, the answer is a resounding NO!

In closing, I want to quote the late Professor Alexander M. Bickel, an eminent Constitutional authority:

"There comes a time, and I believe we have reached it, when society is threatened by unbridled obscenity. Societies polluted by moral stench are not likely to survive.

"Like all civilized societies we have long had many rules which attempt to set moral standards and regulate sexual conduct. Regulation of pornography is not different. It is more than coincidence that societies that have decayed and collapsed-the Roman Empire is a perfect example-have generally done so in an atmosphere of steeply declining moral standards."

In the 95th Congress we have an opportunity to protect our children from such abuse. They cannot protect themselves. They do not have any power; they do not have a citizens' lobby. They deserve better, and we can give it to them.

Hon. JOHN CONYERS, Jr.,

CONGRESS OF THE UNITED STATES,

HOUSE OF REPRESENTATIVES, Washington, D.C., June 8, 1977.

Chairman, Subcommittee on Crime, House Judiciary Committee, Washington, D.C.

DEAR MR. CHAIRMAN: I would appreciate your making the attached statement a part of the Subcommittee's record of testimony for your joint hearings on June 10 with the Select Education Subcommittee regarding the sexual exploitation of children.

Thank you for your attention to this request.
Sincerely,

BOB WILSON, Member of Congress.

STATEMENT BY HON. BOB WILSON FOR THE JOINT HEARING BEFORE THE SUBCOMMITTEE ON CRIME OF THE HOUSE COMMITTEE ON THE JUDICIARY AND THE SELECT EDUCATION SUBCOMMITTEE OF THE HOUSE EDUCATION AND LABOR COMMITTEE ON THE SEXUAL EXPLOITATION OF CHILDREN, JUNE 10, 1977

Mr. Chairman, I believe the legislation we are discussing today, of which I am a strong supporter, is probably one of the most important bills we may consider during this Congress, as it affects our country's most valuable asset-our children.

The continuing rise in the permissive attitudes of our society has accelerated the pornographer's search for subjects that will satisfy the increasingly jaded tastes of his customers. To this end, he has explored and depicted numerous avenues of sexual aberration-fetishism, homosexuality, sado-maschoism and bestiality, to the name but a few.

Having exhausted the lucrative possibilities of these areas, he is now engaged in exhibiting what I would consider the most base, the most disgusting, and the most outrageous concept of sexual activity possible the use of children. Children in films, children in magazines, children in photographs, are depicted in all manner of depraved sexual situations.

When I say children, I mean just that-from a young as three years old on up. These kids have little, if any, sexual awareness, but they do have memories, and in later years the memory of what was done to them may very well warp them psychologically, injuring them mentally for life.

Who are these children? They belong to uncaring or sexually unstable parents looking to make a fast buck by pandering to the tastes of other individuals seeking peep-show excitement of any type. They are runaways duped into posing and performing by unscrupulous adults, who offer comfort and security in strange surroundings in trade for their participation. They are the childen of indifferent parents who either leave home or are cast out because the parents don't want them.

But the fact remains that they are children, and as such, I believe it is our responsibility and the responsibility of the courts to see that the outrages perpetrated on them are stopped and the animals that prey upon them heavily penalized.