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Lawmakers, Ashcroft work to restore ban on virtual child porn

By The Associated Press

05.02.02

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WASHINGTON — Attorney General John Ashcroft and House members began their fight yesterday for legislation to bypass a Supreme Court decision that struck down a ban of computer simulations of child pornography.

"In this thriving market for child pornography, the Supreme Court's legalization of computer-generated child pornography has created a dangerous window of opportunity for child abusers to escape prosecution," Ashcroft said.

The proposed measure "restores the ability of the law enforcement to protect children from abuse and exploitation consistent with the Constitution," said Ashcroft. He announced the legislative push at a news conference at the Justice Department.

Rep. Earl Pomeroy, D-N.D., said he wants the bill, H.R. 4623, to stand up to future Supreme Court challenges.

"This bill is about keeping our children safe by shutting down an industry that preys on our children," Pomeroy said. "This legislation was done not only quickly, but precisely."

The Supreme Court on April 16 struck down part of a 1996 law intended primarily to stop pornography produced through computer wizardry that was not available when the court placed child pornography outside First Amendment protection in 1982.

The court said parts of the law were overly broad and unconstitutional. Free-speech advocates and pornographers challenged the ban on material that "appears to be" a child in a sexually explicit situation or that is advertised to convey the impression that someone under age 18 is involved.

Moviemakers and other artists also complained that the law also swept in scenes where youthful sex is pantomimed or is filmed using adults disguised as children.

"Child pornography is not just an aberrant form of free expression, it is a criminal tool used to seduce and manipulate child victims," said Ernest Allen of the National Center for Missing and Exploited Children.

The effect of the court's decision has been the reduction of child pornography prosecutions being brought by federal officials, child advocates told a House subcommittee studying the issue.

Pornographers' lawyers now "challenge the reality of the images of child pornography, insisting the government disprove that the images are completely computer generated to gain a conviction," said Michael Heimbach, who works for the FBI's Crimes Against children unit.

To make it worse, pornographers are using computer technology to change the faces of real children and then claiming they are virtual creations to make themselves immune, he said.

"Despite the fact that there is no evidence to suggest that these images on the Internet do not involve real children, this ready-made defense has had a dramatic impact on the government's ability to prosecute child pornography offenders," Heimbach said.

While he offered no numbers, he called the reduction in prosecution "significant."

The new legislation would prohibit the production, distribution and possession of any visual depiction, real or virtual, of prepubescent children engaged in sexually explicit conduct, supporters said.

It creates broader definitions for offenses, prohibiting offers to sell or provide, and efforts to obtain child pornography regardless of whether such depictions are actually provided or received. It also prevents child molesters from using pornography to exploit children.

"I hope this legislation meets the standard set by the Supreme Court," said Rep. Mark Foley, R-Fla. "Pedophiles do not have a First Amendment right to gawk over exploited children, real or virtual."

Rep. Lamar Smith, R-Texas, said he expected the legislation to move quickly through the House and perhaps to the Senate before Memorial Day.

Related

High court rejects child-porn law that 'turns the First Amendment upside down'
Analysis Decision joins courtís 1997 ruling in Reno v. ACLU as major landmark in the development of the Internet as a forum for free expression.  04.17.02

Study: Laws, filters alone won't protect children from Net porn
National Research Council report stresses that blend of technical, educational and other steps are needed to keep kids safe online.  05.02.02

Attorney: Convicted child pornographer's photos were protected speech
Lawyer argues David Cobb should have new trial in light of Supreme Court's recent decision overturning ban on virtual child porn.  07.09.02

Sexual battery law is too vague, says Idaho appeals court
Judges rule statute 'is not sufficiently narrow to avoid criminalizing an intolerable range of constitutionally protected conduct.'  09.18.02

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