As Stalin, the greatest mass murderer in history, said, "The death of one man is a tragedy. The death of millions is a statistic." Conversely, when an impersonal statistic becomes translated into personalized tragedy to a sufficiently large number of people, public apathy is shaken. If it is shaken severely enough, action results. If intelligent leadership is at hand to direct that action, humanity moves another step forward. Whether humanity moves forward or backward at this point in time depends: very much on your convictions about pornography. STATEMENT OF HONORABLE ROMANO L. MAZZOLI TO JUDICIARY SUBCOMMITTEE. ON CRIME-MAY 23, 1977 I would like to commend my distinguished colleague and friend, Chairman Conyers, for promptly scheduling these hearings on a matter that is of grave concern to us all. The recent shocking public disclosures of the widespread involvement of minor children in pornographic films, books and magazines demand the expedient and serious consideration of this Congress. At present there is no federal statute which specifically prohibits the distribution of obscene materials depicting children engaged in perverted sex acts. Fortyseven states and the District of Columbia have statutes which prohibit the dissemination of obscene materials to minors. But only six states have laws which prohibits the participation of minors in an obscene act. Twenty-three states are presently considering legislation in this area. Clearly, the exploitation of minor children who are used and sometimes forced to participate in making pornographic materials is a national problem not limited to any one geographic area or socio-economic group. Studies have shown that over 30,000 boy prostitutes are currently being merchandised in this country; the figure for girl prostitutes is even more alarming-nearly 600,000. The Senate Subcommittee on Juvenile Delinquency has recently found that more than one million American children run away from home each year. Thousands of these young people who run away from home end up as victims, or sex slaves, of immoral profiteers. Magazines and films which are currently on the market depict children as young as three years old engaging in outrageous sexual activities. Studies have shown that at least 264 different magazines are being sold in adult bookstores across the country. dealing with sexual acts between children or between children and adults. Child pornography tears at the basic moral fibre of this country. The pornog raphy industry, which is a multi-million dollar business, is leaving irreparable emotional as well as physical scars on thousands of hapless young victims-who happen to be our children. The Los Angeles Police Department estimates that over 30,000 children under 17 were sexually exploited by adults in 1976. Sexual exploitation of children often leads them into other deviant activities such as prostitution, drug addiction, and crime. The bills which this Subcommittee will consider on child pornography focus on protecting the children rather than dealing with the very difficult question of defining obscenity. Rather than wrestle with the larger question of what constitutes obscenity, which has hampered the prosecution of individuals under the obscenity laws, the bill that I am co-sponsoring along with 130 other Congressmen, H.R. 3913, would impose criminal sanctions on those persons who produce, distribute, or sell material depicting a child engaged in a prohibited sexual act or in the simulation of such an act. Given the gravity of this situation and the need to insure the physical, emotional and moral safety of our children, I respectfully urge this Subcommitteeto favorably report H.R. 3913. CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, D.C., May 24, 1977. Hon. JOHN CONYERS, Chairman, Subcommittee on Crime, Washington, D.C. DEAR JOHN: Now that your subcommittee has started hearings on the Child Pornography issue, I want to share two letters that I wrote to Dale Kildee about his bill. Although I am the ranking member of the Select Education Sub committee that has jurisdiction over the bill and vitally concerned about this issue, I feel that the bill as drafted may not stop the overall problem of child sexual abuse. Any thoughts or suggestions you may have in perfecting a final bill would be appreciated. Sincerely, JAMES M. JEFFORDS. CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, D.C., May 11, 1977. Hon. DALE E. KILDEE, Cannon House Office Building, DEAR DALE: Following up on our recent conversation, I am taking this opportunity to share some of my thoughts, concerns and recommendations about your bill to prohibit sexual exploitation of children. As I have stated on many occasions, I certainly feel that something should be done to prohibit pornographic films showing certain sexual acts by children, however, I have serious reservations about the present bill as drafted. To illustrate my concerns I will use some fictitious and exaggerated examples to present the problems I see. I hope that you will accept my sincerity regarding this issue, and recognize that I am raising these questions in an effort to develop a bill that not only the entire Education and Labor Committee can agree on, but the entire Congress as well. In doing so I would hope that we can responsibly address the problem and at the same time be careful not to create any Constitutional or civil rights conflicts. Scenario No. 1. Pete Innocent and Joe Mover are both seniors in high school. Joe Mover has been accepted at Yale University. Pete is 17 and Joe has just turned 18. Joe has been dating and going steady with Naomia Naive. Naomi is 15 years old and is president of her sophomore class. Joe relates to Pete that he was worried about how he is going to suffer through the long nights at Yale without Naomi. To solve his problem, Naomi agrees to pose for some nude and suggestive photographs. The photographs are taken and given to Joe. Joe is delighted and tells Pete than he will "be able to have enough sexual stimulation and gratification because of Naomi's pictures." The next day Joe asks Pete to take his trunk to the train station for shipment to Yale, and directs him to be "very careful" because the picture of Naomi are in the trunk. The next day jokingly relates this story to Red Crude, the local cop. Crude happens to tell the same story to the local FBI agent. The next week, Federal officials apprehend Joe and Pete. They appear before Judge Prude. Joe is charged under Section 8(a) and (b), and Section 9, paragraph (a)(1). Pete is charged under Section 9(a) (1). Pete and Joe, realizing their guilt, plead guilty. The Judge, incensed with the photographs, gives consecutive sentences to Joe Mover amounting to 55 years. He also imposes the maximum fine of $125,000 because he knows that Joe's father is wealthy. Pete Innocent is sentenced to 15 years under Section 9(a)(1). On the same day, in the same courtroom, in a similar, but unrelated case, Porno Pictures Corporation is found guilty under Section 9(a) (2) and receives the maximum fine of $25,000. The Judge reluctantly dismisses a charge against Smut Theatres, which showed the film, because showing child porno films is not prohibited. The questions here are not whether Naomi's posing for the pictures was right or not, but whether they were "abusive" to her. Also, were the actions of Joe and Pete "abusive" to her or anyone else? Furthermore, how can the bill be written to make the penalties fit the offense? Scenario No. 2. The University of Vermont is in serious financial difficulty. The President, looking for every available dollar, authorizes the sale of the Shakespearean film library to the Shakespearean Arts Festival being held on the University campus by a profit-making enterprise. One of the films is "Romeo and Juliet", donated by a Hollywood film producer to the University. The film is shown at the Festival after the audience is informed of the sale by the President of the University. In the audience is Vin Vindictive, the local Sheriff, whose daughter has been refused admission to the University. Vin watches the film, realizes that the actress in the picture portraying Juliet is "only" 15 years old. After watching the beautiful, but rather explicit love scene, he arrests the President of the University. The President of the University appears before the same Judge Prude, who is horribly incensed that such pictures would be shown on the University's campus. He sentences the President of the University to 15 years in jail and imposes a maximum fine of $25,000. I use these somewhat extreme scenarios in order to illustrate the areas in the proposed bill that could present potential problems in the event it became law in its present form. I believe they reflect the problems of attempting to develop a law on this subject. These examples (and there are many more) obviously raise very basic questions. I think it would be helpful for me to review what I believe is the purpose of the proposed bill. Next, I will discuss the proposed bill from the point of view as to whether it prevents the "evils" it is intended to correct, and, finally, I will discuss the potential problems the bill creates along with the reasonableness (or lack) of its approach, as well as the likelihood of its being effective. First, as to the purposes of the bill. Since the Subcommittee is trying to reduce child abuse, it would appear the obvious purpose of the bill should be to assist in preventing child abuse, and in this specific case, sexual abuse of children. In a more limited perspective, the purpose should be to prohibit the use of children in pornographic films wherein it is demonstrated that the activities engaged in by the children are sexual abuse and/or they become sexual abuse by having them filmed, or are likely to stimulate child abuse when viewed. The purpose of the bill with respect to this aspect I believe should be twofold: (1) To prevent the abuse of children who are being filmed, and (2) to prevent subsequent child abuse by those who may be stimulated as a result of viewing these films. This obviously is difficult, we must separate the question of what actually constitutes sexual abuse from an attempt to impose certain standards of morality. The proposed bill does not separate the issues and therefore, I believe, leads to certain Constitutional problems. I would like to point out that the list of prohibited sexual acts under Section 10, can be separated into two broad categories: (1) Those activities which are considered to be abnormal sexual activities, and (2) sexual activities which under most conditions would be considered normal. The bill does not discriminate between them. It might be quite possible to argue that allowing a child to engage in bestiality, fellatio or cunnilingus is per se sexual abuse, but it is difficult to make that argument with masturbation. As an example, the movie, "The Exorcist" has a masturbation scene apparently performed by a minor, Linda Blair. I do not know whether Ms. Blair actually did the scene herself or whether a stand-in did it for her, but in the final version that was shown in theatres, it appears that Ms. Blair was performing masturbation using a Cross. Can it be said that allowing her to be filmed in a masturbation scene was "sexually abusive" to her and should be prohibited because it might stimulate or create the possibility that it will cause sexual abuse to occur? It would appear that if the Congress adopted the bill as written it would be imposing "moral standards" rather than prohibiting "sexual abuse." The same can be said about sexual intercourse. The second example emphasizes this well. In the movie version of Shakespeare's classic "Romeo and Juliet" (which is certainly considered a masterpiece of literature), an actress, age 15, played a rather explicit but tasteful "love scent" which ended in "simulated" intercourse. One must ask whether this scene was sexually abusive to the 15 year old actress and/or whether the "simulation" is likely to cause others to sexually abuse children as a result of viewing it. Should we send her parents or legal guardians and/or the producers to jail for allowing the performance of this classic? Where is the line between "acting" and "Theatre" and "sexual abuse"? Furthermore, I see many other problems with the term "prohibited sexual acts" as set forth in the bill. Many psychologists and psychiatrists would say that a father striking or beating his child has sexual overtones and could be considered as "sexual sadism" or "any other sexual activity". I am sure the same is true of certain conduct which psychologists or psychiatrists would term as "sexual masochism". Further the term "any other sexual activity" is so broad that it might include many activities which would be difficult to show were "abusive" even if sold for profit. The term "nudity", "of any individual", "simulated . . ." fall into this category. It seems these terms stray a long way from "child abuse". At the same time it does not seem to me that to prohibit or send people to jail for activities which are private in nature (such as I described in my first example), should be legislated by the Congress. I am concerned that Section 8(a) and (b) and Section 9(a) does not require any profit motive, 93-185 - 77-23 publication, or public showing to find a person guilty. Also, I am disturbed that the people who make the profits from these activities, if convicted, will receive a penalty much less than those who may be doing these acts privately. Further those showing the movie for profit will not be penalized (unless the term "sale" applies). I believe that the bill must be redrafted substantially to take care of the problems that I have noted. I am sure there are other areas we will have to consider as well. I would suggest that there should be at least two different standards for "prohibited sexual acts". There are certain acts as I mentioned above that we all can agree ought not to be photographed using children which would be distributed for profit. I recognize that there are circumstances where certain sexual activities might be child abuse, or stimulate child abuse, however, these will have to be carefully determined after the Subcommittee hears and has a chance to examine expert testimony on what circumstances would or should constitute "sexual abuse". We must also address the distinction between a film made for "teaching" purposes to be used in a sex education program in a local school system and hard core pornography. I am concerned about the bill's reliance entirely upon interstate activities to curb the abuses. It seems to me that a better approach might be found in explicitly tying the "abuses" in films to the "child labor laws". (29 U.S.C. Sec. 203 & 212) I also have a concern with respect to the ability to actually prohibit the "evils" intended to be curbed by the bill. As I understand it, the intent is to prohibit the "sale, transportation and showing of pornographic films" showing children in "acts" which would be considered "sexual child abuse". As written, I think the bill may have that effect, but at the same time I think as written, would probably be declared unconstitutional. Finally, it is difficult for me to justify the primary emphasis placed in the proposed bill on the parents or guardians of the children and not on the people who are profiting from the films themselves. The purpose of the bill ought to be to keep such films off the market. I think the proposed bill ought to be limited to those individuals selling, shipping, showing, or transporting for a profit such films. (I might also mention that "videotaping" should also be included.) Many of the problems which are addressed in your bill would normally be considered "state" problems. Therefore, it would appear to be that the Department of Justice should assist in preparing a model state statute which states could use to correct whatever activity or activities should be banned. In conclusion, I must raise a point that I have not really stressed in this letter; that is while we move to correct the sexual abuses that may occur as a result of using children in pornographic films, we must also be just as concerned and focus as hard on the overall question of sexual abuse of children. It seems clear from the hearings that the Subcommittee has held the use of children in pornographic films is only one small part of the problem of child sexual abuse throughous the country. Witness after witness has indicated that pornographic films are only the "tip of the iceberg", and that sexual abuse, including teenage prostitution and incest, are even greater problems. Any amendment addressed to correcting the sexual abuse problem in this country should addressed the entire universe of the problem and not just be limited to films. SUMMARY Problems: The Bill (1) Does not have penalties for publicly showing pornographic films in which children are used. (2) Can be interpreted to penalize primarily "non-child abuse" sexual acts and makes judgments as to what activities are sexual abuse with little if any justification on which to base the judgments. (3) Does not distinguish between normal and abnormal sexual activities. (4) Includes broad and ambiguous terms which in themselves are not necessarily abusive such as "simulated . . .", "nudity . . .", etc. When these terms are added to the provision "of any individual who may view", this term covers the entire population. (5) Does not include viedo taping. (6) Does not utilize child labor laws. (7) Goes beyond any existing constitutionally accepted term under the Interstate and Foreign Commerce clause with the use of the term "may be transported". (8) Includes minors with no legal relationship (as set forth in scenario No. 1). (9) Prohibits legitimate theatre situations, i.e. Romeo and Juliet. (10) Does not require "knowledge" in "sale" provisions as set forth in scenario No. 2. (11) Does not distinguish between incidental filming of normal sexual acts for use in sexual education classes in schools and filming for pornographic purposes. SUGGESTED APPROACH Any final amendment should be comprehensive in nature and should address the entire problem of sexual abuse in America. It should cover both criminal and non-criminal aspects of the question. It should address the needs of children, parents and the public in general. Criminal provisions should be directed to both state and Federal problems. The Department of Justice should develop a model statute on this subject and assist states to whatever extent necessary to get them to adopt the statute. The Federal statute should rely on interstate commerce and child labor laws. It should differentiate between normal and abnormal sexual acts after proper evidence. The circumstances under which normal sexual acts being filmed would be "abuse" should be defined in greater detail. The solutions to the problem and the penalties involved must also be clearly defined. Through this letter I have attempted to demonstrate my deep concerns about correcting the problem of sexual abuse among children and at the same time set down a basis on which Congress should act if we are to be truly reasonable, rational and responsible as we legislate. I am available and will look forward to working with you to come up with a bill which will accomplish the primary golas, without leading us into the extremely difficult areas of trying to rule out pornography and not imposing standards of morality. Sincerely, JAMES M. JEFFORDS. CONGRESS OF THE UNITED STATES, Hon. DALE E. KILDEE, Cannon House Office Building, DEAR DALE: Since my letter to you of May 11, I have given more thought to the matter of how we can produce a bill which will accomplish our goals of trying to reduce sexual abuse of children generally, as well as eliminating their participation in pornographic movies specifically. Before giving some possible approaches, I would raise the problems of implementation and enforcement. In dealing with this problem, it seems that it is easier to propose a statute which sounds good, than it is to propose a statute which will have some effect in curbing the actual sexual abuse of children. The words will be meaningless unless they can and will be enforced. My concern can best be summed up with the following fictitious scenario: Scenario: Smut Pictures is formed by three sleazy characters who entice some children to engage in "sexual" activities by paying money to them or their parents. The filming takes place on the premises of a temporarily leased building under the fictitious name "Acme Productions". The films are processed and sold to pornographic wholesaler who is also using a temporary and fictitious front, and who in turn sells the films to an "adult book and film store" which sells or leases them to Joe's Porno Bar. The point of likely enforcement in this situation might occur when the items are sold, and a law enforcement officer, posing as a buyer contracts for a sale or views the film being shown in the porno bar. If this situation is indeed likely than it is apparent that the only way the Federal government can hope to assist in eliminating these activities is by having effective enforcement against those selling or showing the pictures. In this situation it seems to me that it would be extremely difficult to prove the ages of the children (unless they are obviously very young) as to whether or not they were above or below the age of 16. Also, as set forth at length in my previous letter, it might be difficult to prove that the acts were actual "child abuse." We must remember the "beyond a reasonable doubt" |