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The Child Protection Restoration and Penalties Enhancement Act of 1990, Title III of the Crime Control Act of 1990, Pub.L. 101–647, 104 Stat. 4789, enacted November 29, 1990, S. 3266, is part of a United States Act of Congress which amended 18 U.S.C. § 2257 in respect to record-keeping requirements as set by the Child Protection and Obscenity Enforcement Act of 1988, also establishing prohibitions. The Act also ammended 18 U.S.C. § 2243 and 18 U.S.C. § 2252 establishing and increasing penalties for sexual abuse of a minor.

History[edit]

The initial iteration of 2257 as passed in the 1988 Child Protection and Obscenity Enforcement Act of 1988, mandated that producers of pornographic material keep records of the age and identity of performers and affix statements as to the location of the records to depictions. However, rather than penalties for noncompliance, the statute created a rebuttable presumption that the performer was a minor. This version was struck down as unconstitutional under the First Amendment in American Library Association v. Thornburgh [1].

In part, the Child Protection Restoration and Penalties Enhancement Act of 1990 was designed to "correct[] the record keeping provisions of the Child Pornography and Obscenity Enforcement Act so that it will comply with a U.S. district court's decision in the case of American Library Association versus Thornburgh."[2]

According to the Bill's summary[3], apart from removing the unconstitutional provision, it was also intended:

  • To amend the Child Protection and Obscenity Enforcement Act of 1988 in order to:
    • Prohibit: (1) The sale or transfer of any pornographic material lacking a statement of the location of records with respect to the performance depicted on every copy; or (2) failing to create or maintain records or to comply with provisions of such Act or from knowingly making a false entry or failing to make an appropriate entry in such records.
    • Establish criminal penalties for violations of such act and replace the term "lascivious exhibitions of genitals or public areas" for "sexually explicit conduct" for purposes of sexual exploitation provisions.
  • Direct the U.S. Sentencing Commission to amend guidelines for sentences involving sexual crimes against children so that more substantial penalties may be imposed if the Commission determined that former penalties were inadequate.
  • Increases the maximum penalty for sexual abuse of a minor from 5 to 15 years imprisonment.
  • Establish penalties for: (1) possessing with intent to sale any visual depiction of sexually explicit conduct involving minors; and (2) possessing three or more materials containing such depictions (excluding depictions by words alone). Limits on the amount of fines for such possession and for other activities were eliminated.

The Child Protection Restoration and Penalties Enhancement Act of 1990 was composed of two subtitles.

Legal challenges[edit]

After the amendments, the same Plaintiffs whose claim derived in the unconstitutionality of the Child Protection and Obscenity Enforcement Act of 1988, challenged again the constitutionality of 18 U.S.C. § 2257 as amended by the Child Protection Restoration and Penalties Enhancement Act of 1990. The Court upheld this new version and considered it to be a "content-neutral statute that serves a compelling Government interest", therefore finding that said provisions "meet the intermediate scrutiny standard established by the Supreme Court's First Amendment jurisprudence"[4].

References[edit]

  1. ^ American Library Association v. Thornburgh, 713 F. Supp. 469 (D.D.C. 1989).
  2. ^ 136 Cong. Rec. S9029 (daily ed. June 28, 1990) (statement of Sen. Thurmond)
  3. ^ http://thomas.loc.gov/cgi-bin/bdquery/z?d101:SN03266:@@@L&summ2=m&
  4. ^ American Library Association v. Reno, 33 F.3d 78, 95 (D.C. Cir. 1994).