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Congress Passes Bill Extending Definition of Child Pornography

By John Schwartz
The Washington Post

A new law included in the omnibus spending bill in the final days of the congressional session extends the definition of child pornography to include images that do not involve children at all, including movies that use adult actors to portray minors and even images created on computers.

The Child Pornography Prevention Act of 1996 has caused a furor among civil libertarians and constitutional law professors, many of whom sharply criticized the bill when it was first proposed by its sponsor, Sen. Orrin G. Hatch, R-Utah. The law took effect Monday when President Clinton signed the omnibus spending bill.

The new law outlaws "any visual depiction, including any photograph, film, video image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct." The law lengthens maximum sentences for child sexual exploitation and child pornography, with penalties ranging from five to 30 years in prison.

As far as could be determined Thursday, no cases of the type of computer-generated child pornography described in the bill have been reported. However, advances in digital alteration of photography make the creation of such images possible.

"While federal law has failed to keep pace with technology, the purveyors of child pornography have been right on line with it," Hatch said in a statement.

Critics of the law said it would allow prosecution of legitimate works, potentially including such films as "Kids," and could cause a chilling effect on future productions based on such works as Vladimir Nabokov's "Lolita."

The bill also creates an exception to laws restricting newsroom searches. It would allow such searches in cases involving child pornography.

Though lawmakers are trying to protect children from the evils of child pornography, "what they're going to do is sweep up a great deal of constitutionally protected activity," said Daniel E. Katz, legislative counsel to the American Civil Liberties Union.

Neither obscenity nor child pornography are protected by the First Amendment's guarantee of freedom of speech. The legal definition of child pornography, however, is broader than the legal definition of obscenity because of the need to protect children from the exploitation and abuse that making child pornography entails. Child pornography has been defined to include "actual or simulated" sexual acts and "lascivious exhibition of the genitals or pubic area" by minors.

In prior child pornography cases, the Supreme Court stated that filmmakers could still use adults pretending to be minors in order to avoid exploiting children and breaking the law. But that course of action is expressly banned under the new law.