burden that the prosecutor has. Therefore, as we develop a bill I think it is necessary to ask some pertinent questions. (1) What specific activities can we prevent by Federal law which will actually reduce sexual abuse of children? (2) What standards must be in place to insure that each element of the offense set forth in the law is provable? (3) What provisions must be included to provide the means to insure that legitimate constitutionally protected activities will be able to continue? (4) Can a bill be written that will be constitutional and still have the provisions to stop the problem? (5) What actual controls would have to be incorporated into a bill that would actually stop the transportation of pornographic films using children? (6) Can a bill be written which does not create an unnecessary or unreasonable burden on those charged with enforcement in order to insure that there will actually be enforcement? (7) What will be the costs to actually enforce a Federal law in this area? I am hopeful that the hearings conducted by the Select Education Subcommittee and the Judiciary Committee will provide answers to these and the previous questions I have raised. Having raised them, I would now like to suggest an approach which might be effective. First, I would define the proscribed activities under two categories. (1) As mentioned in my previous letter, I would set forth those activities upon which everyone could agree would constitute child abuse as being "abnormal sexual activities" and which are also generally prohibited for adults by many state statutes. (2) I would create a second category of possible sexual abuse situations which would use one of two possible tests: (a) the test as set forth in Miller v. California (see attached summary), and (b) a list of activities with such modifying words "that constitute child abuse." I recognize that providing law enforcement officials with the ability to be able to prove that the age of the individual filmed is below 16 is most essential, but probably creates the most difficult problem. I would suggest some routes to explore as possible provisions. (1) Require that for any film, video tape or pictures portraying sexual activities as set forth in the final statute which is transported in interstate commerce must be accompanied by a list of all persons under the age of 18 with their names, ages on the day the proscribed sexual activities were filmed, and their addresses at the time the certification was filed, and that such information must be certified to the Department of Labor. It would be an offense for any person to transport or to sell or show for profit such material without the certificate being available. This would place the burden on the person selling or showing to ascertain the authenticity of the certificate in order to protect him from prosecution under this section. In other words, a counterfeit certificate would not be a defense. So that there will be no burden on the taxpayers, some fee should be required when the producer submits his document of certification. In addition, there should be a prohibition against any user of the film to justify or advertise his film is good simply because it has been certified. It is not my intent to establish a new bureaucracy here in Washington who goes around monitoring all activities, but if the certification becomes mandatory and the penalties for noncompliance are strong, the means for enforcement will be available. (2) To protect constitutionally protected activities, it would seem advisable to provide administrative machinery for those persons producing a legitimate film, video tape or picture using children under 16 to be able to receive a certificate that the activities do not constitute child abuse under the second level of offenses as outlined above. Obtaining of such a certificate would only protect from violation under this section and not necessarily from state pornography laws. This approach conforms somewhat to the statutory approach with regard to child labor laws. It would, of course, be necessary to modify certain definitions and provisions of the Fair Labor Standards Act of 1938, however, from a review of the law I don't see any difficulty. If you feel that these suggestions are worth pursuing, I would be happy to work with you on any amendments which would produce an effective bill. Sincerely, JAMES M. JEFFORDS, SUPREME COURT OF THE UNITED STATES Syllabus MILLER V. CALIFORNIA APPPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF No. 70-73. Argued January 18-19, 1972-Reargued November 7, 1972— Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U.S. 413, 418 (pluarity opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held by the Court: 1. Obscene material is not protected by the First Amendment, Roth v. United States, 354 U.S. 476, reaffirmed. A work may be subject to state regulation where that work, taken as a whole appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and taken as a whole, does not have serious literary, artistic, political, or scientific value. P. 9 2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constiutional claims when necessary. Pp. 9-10. 3. The test of “utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard. P. 10. 4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a "national standard." Pp. 15-19. Vacated and remanded. BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined. OCTOBER 4, 1977. Hon. JOHN CONYERS, Jr., DEAR MR. CHAIRMAN: Enclosed you will find a statement which presents The American Legion's position on the sexual exploitation of children and addresses the provisions of H.R. 3913. It is requested that this statement be made a part of the record of the hearings recently held by your subcommittee. We appreciate your attention to this matter. Sincerely, Enclosure. MYLIO S. KRAJA, Director, National Legislative Commission. STATEMENT OF PAUL R. FRINSTHAL, ASSISTANT DIRECTOR, NATIONAL AMERICANISM AND CHILDREN AND YOUTH DIVISION, THE AMERICAN LEGION Mr. Chairman and Members of the Subcommittee: The American Legion appreciates the opportunity to express its views on H.R. 3913, a bill to prohibit the sexual exploitation of children. Through its Children and Youth Division, The American Legion has supported numerous pieces of legislation dealing with the prevention and control of prob lems directly affecting the well-being of our nation's young people. The supportive role now exceeds five decades and will continue as long as children are in need of programs that will brighten their future. Our Children and Youth program has a two-fold purpose: (1) to provide a setting conducive to every veteran's child having an adequate opportunity to realize his full potential and (2) to assure every American child, a similar opportunity. To achieve our first purpose, we endeavor to improve conditions for all children. In 1960, The American Legion took its first stand on the issue of obscene literature. At that time, we stressed the importance of education and enforcement. Since then, no less than seven resolutions have been adopted by The American Legion, expressing our complete opposition to the production, sale and distribution of pornographic or obscene materials. Attached to this copy are two resolutions adopted at our National Convention in Denver, Colorado, this year. Resolution No. 311 expresses the attitudes of shame and anger concerning the exploitation of children in the production of pornographic materials. In light of this, we implore and support the passage of federal legislation that will put an immediate stop to this disgraceful blight on our society. Resolution No. 242 directly attacks those individual purveyors who would exploit our youngest generation. It also points out that the problem of juvenile delinquency is magnified if we continue to allow the production, distribution and sale of pornographic material depicting children, of all ages, in sexually explicit scenes to go unchecked. Sexual permissiveness, riding on a wave of changing attitudes, has spread rapidly throughout our society in recent years. Such permissiveness amid the adult population continues to be argued in terms of its positive or negative influence on children. Perhaps there is some association between changes in attitude and the practice of sexual activity among children but this association, in our opinion, is far less frightening than the disgusting behavior of those who photograph or film children engaging in sexual acts for financial gain. Sexual exploitation of children by these unscrupulous "businessmen" is often a blatant violation of individual rights since, in most cases, children are either forced or encouraged to participate in these portrayals before they have developed their own attitudes toward sex. Such participation is oftentimes a traumatic experience for the child, leaving psychological scars which may never heal. These children are truly victims and they depend upon their responsible adults, especially our elected officials, to act as guardians over their individual rights. The focus of any action to reduce sexual exploitation of children should be directed toward those who exploit them. We find that H.R. 3913, if enacted, would impose severe fines and other penalties upon anyone who knowingly is involved with the production or interstate shipment of material depicting a child engaged in prohibited sexual activity. We agree with this approach and support enactment of the bill now before you. Denver National Convention. Resolution No. 242. August 23, 24 and 25, 1977. Denver, Colorado. SEEKING PROSECUTION OF ADULTS CONTRIBUTING TO DELINQUENCY OF OUR UNDER-AGE YOUTH Whereas, The American Legion spells out clearly in its Preamble one of its cardinal principles, to-wit: To inculcate a sense of individual obligation to the community, state and nation; Whereas, The basic strength of The American Legion is with the local Post in the communities in which such Posts exist and function; and Whereas, We are mandated to community involvement which includes the pursuit of excellence for the good of the respective locales and also the elimination of objectionable operations who prey on the young people; and Whereas, The issue of pornography, sexual permissiveness and the brazen presence of dens of iniquity such as "massage parlors" is reaching into many neighborhoods in increasing number, with very little resistance given to this growing invasion of smut, sex films and other gimmickery; and Whereas, In some situations large movie screens of drive-in theaters attract many under-age viewers from outside the confines of such establishment, and thus, "X" rated movie scenes have a deteriorating effect on our young people, and because of the multiplicity of such operation also have easy access to the ware available from the many corruptible sources; and Whereas, Many communities in the United States, through persistent resistance have succeeded in eliminating or put under strict control such operations from within their midst; and Whereas, Leadership and a force of strength must be made available to put an end to this system of corrupting our young, which inspires open sexuality and sex deviation, common-law marriages, commune living and which destroys the ruggedness of much of our young; now, therefore, be it Resolved, By The American Legion in National Convention assembled in Denver, Colorado, August 23, 24 and 25, 1977, That we encourage activities on the Post level, against the purveyors of sin and sexuality whose very presence in communities deteriorates the spirit of good and wholesome living; and, be it further Resolved, That all operators of such outlets be advised if the community objects to its presence and that the operation will be under constant surveillance for illegal sales or admissions, as well as seeking the prosecution of adults who contribute to the delinquency of under-age customers. CHILD PORNOGRAPHY Whereas, The American people have been understandably shocked by recent startling revelations of the use of children in pornographic magazines and films; and Whereas, The use of children as subjects in the production of pornographic materials has a devasting effect upon these young people which is a disgrace to our society; and Whereas, Existing laws dealing with the production, sale and distribution of pornographic materials are inadequate as they do not fully protect against the use of children in the production of such materials; and Whereas, Many state penal codes aimed at the prosecution of those people involved in developing, promoting and selling child pornography are either nonexistent or in need of clarification; now, therefore, be it Resolved, By the American Legion in National Convention assembled in Denver, Colorado, August 23, 24 and 25, 1977, That state legislators be encouraged to evaluate and make appropriate improvements in existing laws aimed at those adult individuals involved in the child pornography business; and, be it further Resolved, That we urge the strengthening of existing federal legislation by the United States Congress to make penalties severe enough to eliminate the production, distribution and sale of materials that use children in sexually explicit scenes and we urge that adequate funding be provided when necessary to accomplish these goals. SEXUALLY ABUSED CHILDREN: FACT, NOT FICTION (Prepared for the National Council on Crime and Delinquency, Washington, D.C. by Marianne E. Cahill, NCCD/AFL-CIO Research Assistant) TABLE OF CONTENTS I. Background of Child Abuse: A. Definition of sexual abuse B. How does it fit into child abuse II. The Abused Child: A. General characteristics B. What are the types of sexual abuse C. Psychological repercussions D. Legal rights III. The Abuser: A. General characteristics B. Reasons for abusing the child C. Psychological repercussions IV. The Family: A. General characteristics B. Reactions to (1) the abuser, (2) the abused V. Available Programs and Legal Implications: A. Who reports the abuse B. Where are abuse reports referred C. What programs are available D. Is the majority solution on correction of the family behavior or removal of the offender VI. Reforms: A. Informing the public B. Development of further treatment programs C. Uniform state regulations D. Training of professionals (for detection purposes) VII. Conclusions and Recommendations. Bibliography Contact List Addenda Special thanks to Gwen Ingram and Chuck Johnson for "taking me in" and to my parents. Without their continuing support, the learning experience surrounding the research of this article would not have been possible. PART ONE-BACKGROUND OF CHILD ABUSE The sexual abuse of children by members of their family is an area of child abuse which has too often been neglected. Incest, by its very nature, is a crime which is regarded as a taboo subject. People, using an illogical method of reasoning, believe that their refusal to acknowledge the existence of incest will cause it to cease. Unfortunately, such thinking does not work. Just as by closing one's eyes does not eliminate the reality of darkness, incest continues to flourish without regard to the social attitude held by men. With the continuing increase in incest (at least in the reporting of incest) one soon discovers that incest is not an individual crime, but one which can lead to drug abuse, prostitution and the allowance by sexually assaulted individuals to permit the sexual abuse of their own children. These reasons formulated the incentive for the research found in this paper. While there are no national statistics yet available on the offenses of the sexual abuse of children, a major finding from the book Protecting the Child Victim of Sex Crimes Committed by Adults states that: "The problem of sexual abuse of children is of unknown national dimensions, but findings strongly point to the probability of an enormous national incidence many times larger than the reported rate of physical abuse of children.”1 If this statement is accurate, children are being sexually abused with a greater frequency than ever imagined. At this point, the question generally arises as to what is actually meant by sexual abuse? What does it include? Where does incest fall into this definition? This definition has been a major problem throughout the United States. While all 50 states have laws regarding the "crime" of incest, the definition and penalties within these statutes differ widely. While some states have specific laws detailing what is meant by sexual abuse, others just place it as a category under the heading of Child Protection laws. As a result, there exists much confusion over whose jurisdiction is responsible for which acts, what legal avenues are to be implemented and so forth. Although there has been some change within the laws of all 50 states during the past 15 years, there is no single model statute which has been adopted by a majority of the states. Perhaps the most complete and workable definition of sexual abuse is that of the State of Maryland which reads as follows: "Sexual abuse' shall mean any act or acts involving sexual molestation or exploitation, including but not limited to incest, rape, carnal knowledge, sodomy or unnatural or perverted sexual practices on a child by any parent, adoptive 1 Vincent DeFrancis, Protecting the Child Victim of Sex Crimes Committed by Adults. (Denver: American Humane Association, 1968), p. 203. |