Appendix — New York v. Ferber

APPENDICES

The following appendices contain the constitutional and

statutory provisions involved in this case (App. I) and a

discussion of child pornography (App. Il). References in

the brief to lettered appendices A, B and C are to the ap-

pendices to the petition for a writ of certiorari.

APPENDIX I

Constitutional and Statutory Provisions Involved

The First Amendment of the United States Constitution

provides, in pertinent part:

Congress shall make no law . . . abridging the freedom

of speech, or of the press... .

The Fourteenth Amendment of the United States Con-

stitution provides, in pertinent part:

[NJor shall any State deprive any person of life,

liberty or property, without due process of law... .

The relevant sections of Article 263 of the New York

Penal Law provide:

§263.00 Definitions

As used in this article the following definitions shall

apply :

1. ‘‘Sexual performance’’ means any performance

or part thereof which includes sexual conduct by a child

less than sixteen years of age.

2. ‘Obscene sexual performance’’ means any per-

formance which includes sexual conduct by a child less

than sixteen years of age in any material which is ob-

scene, as such term is defined in section 235.00 of this

chapter.

3. ‘‘Sexual conduct’? means actual or simulated

sexual intercourse, deviate sexual intercourse, sexual

bestiality, masturbation, sado-masochistic abuse, or

lewd exhibition of the genitals.

4. ‘*Performance’’ means any play, motion picture,

photograph or dance. Performance also means any

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other visual representation exhibited before an audi-

ence.

5. ‘*Promote’’ means to procure, manufacture,

issue, sell, give, provide, lend, mail, deliver, transfer,

transmute, publish, distribute, circulate, disseminate,

present, exhibit or advertise, or to offer or agree to do

the same.

6. ‘*Simulated’’ means the explicit depiction of any

of the conduct set forth in subdivision three of this sec-

tion which creates the appearance of such conduct and

which exhibits any uncovered portion of the breasts,

genitals or buttocks.

7. ‘*Deviate sexual intercourse’’ means the conduct

defined by subdivision two of section 130.00 of this

chapter.

8. ‘‘Sado-masochistic abuse’’ means the conduct

defined in subdivision five of section 235.20 of this

chapter.

$263.05 Use of a child in a sexual performance

A person is guilty of the use of a child in a sexual

performance if knowing the character and content

thereof he employs, authorizes or induces a child less

than sixteen years of age to engage in a sexual per-

formance or being a parent, legal guardian or custodian

of such child, he consents to the participation by such

child in a sexual performance.

Use of a child in a sexual performance is a class C

felony.

$263.10 Promoting an obscene sexual performance by

a child

A person is guilty of promoting an obscene sexual

performance by a child when, knowing the character

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and content thereof, he produces, directs or promotes

any obscene performance which includes sexual con-

duct by a child less than sixteen years of age.

Promoting an obscene sexual performance by a

child is a class D felony.

§263.15 Promoting a sexual performance by a child

A person is guilty of promoting a sexual perform-

ance by a child when, knowing the character and con-

tent thereof, he produces, directs or promotes any

performance which includes sexual conduct by a child

less than sixteen years of age.

Promoting a sexual performance by a child is a

class D felony.

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APPENDIX IL

The sexual abuse of children in the production of films,

photographs and live performances is a major problem of

national significance. The nature and extent of such abuse

was delineated in the congressional hearings held from

May to September 1977, before enactment of the federal

child pornography statute, 18 U.S.C. §§2251 et seq.’ The

subject was considered in other legislative forums and

investigative reports dating from the same period,? and

was extensively illuminated in the news media also begin-

ning in 1977.2 The problem has been treated in several

1. See Sexual Exploitation of Children, Hearings Before the

Subcomm. on Crime of the House Comm. on the Judiciary, 95th

Cong., Ist Sess. (1977) (hereinafter cited as Sexual Exploitation

of Children I) ; Protection of Children Against Sexual Expioitation,

Hearings Before the Subcomm. to Investigate Juvenile Delinquency

of the Senate Comm. on the Judiciary, 95th Cong., Ist Sess. (1977)

(hereinafter cited as Protection of Children Against Sexual Exploi-

tation) ; Sexual Exploitation of Children, Hearings Before the Sub-

comm. on Select Education of the House Comm. on Education and

Labor, 95th Cong., Ist Sess. (1977) (hereinafter cited as Sexual

Exploitation of Children IT).

2. See Obscenity and the Use of Minors in Pornographic Ma-

terial, Hearings Before the California Assembly Committee on Crim-

inal Justice (1977); Attorney General's Advisory Committee on

Obscenity and Pornography, Report to the Attorney General on Child

Pornography in California (1977) ; Sexual Exploitation of Children,

A Report to the Illinois General Assembly by the Illinois Legislative

Investigating Commission (1977) (hereinafter cited as Sexuak Ex-

ploitation of Children [Illinois] ); Interim Report of Texas House

Select Committee on Child Pornography: Its Related Causes and

Control (1978).

3. See, +g. Sneed, Bliss, Moseley, et al., Child eth 0.3

Sickness for Sale, series of articles in Chicago Tribune, May 15-17

1977, reprinted in Sexual Exploitation of Children I, supra note 1

at 428-42 and in Protection of Children Against Sexual Exploitation,

supra note 1 at 130-50; Clifford, series of articles on child prostitu-

(footnote continued on next page)

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books written for a general audience,‘ and it has begun to

receive scientific attention as well.*

The evidence reported in these sources establishes two

propositions convincingly. First, by the middle seventies,

the use of children engaged in sexual conduct in the pro-

duction of films, photographs and live performances had

become a major reality, in New York and elsewhere in the

United States. Second, this use of children is a form of

sexual abuse and is seriously harmful to the children in-

volved.

A

In 1977 it was estimated that commercial child pornog-

raphy accounted for five to ten percent of sales in the por-

tion and pornography, The Jackson (Mississippi) Daily News,

August 24-28, 1980; Kiddie Porn, 60 Minutes, vol. [X, No. 33, May

15, 1977, reprinted in Protection of Children Against Sexual Ex-

ploitation, supra note 1 at 123-30; Child Pornography: Outrage

Starts to Stir Some Action, U.S. News and World Report, June 13,

1977, p. 66; Child’s Garden of Perversity, Time, April 4, 1977, p.

55, reprinted in Sexual Exploitation of Children I, supra note 1 at

423; Ditkoff, Child Pornography, American Humane, April 1978,

pp. 29-32; Anson, The Last Porno Show, 8 New Times 46 (1977),

reprinted in Protection of Children Against Sexual Exploitation,

supra note 1 at 150-58; Dudar, America Discovers Child Pornog-

raphy, Ms., August 1977, p. 45. See also Baker, Preying on Piay-

grounds: The Sexploitation of Children in Pornography and Pros-

titution, 5 Pepperdine L. Rev. 809 (1978).

4. R. Lloyd, For Money or Love: Boy Prostitution in America,

. 79-101 (1976) ; R. Geiser, Hidden Victims: The Sexual Abuse of

ildren, pp. 109-22 (1979) ; F. Rush, The Best Kept Secret: Sexual

Abuse of Children, pp. 158-69 (1980); C. Linedecker, Children in

Chains, passim (1981),

5. See Schoettle, Child Exploitation: A Study of Child Por-

noareee , 19 J. Am. Acad. Child Psych. 289 (1980) ; Guio, Burgess

and elly, Child Victimization: Pornography and Prostitution, 3

J. of Crime and Justice 65 (1980) ; Burgess, Groth and McCausland,

Child Sex Initiation Rings, 51 Am. J. Orthopsych. 110 (1981).

6a

nography industry as a whole. It is impossible to esti-

mate with certainty the size of the pornography industry,

but according to one estimate prepared by the California

Department of Justice, the industry as a whole generates

revenues of $4 billion per year.’ Even assuming that sales

of child pornography comprise a modest five per cent of

that total, child pornography produces $200,000,000 an-

nually ; in financial terms, clearly, it is a sizeable business.

Before the enactment of Article 263 of the New York

Penal Law, child pornography was sold openly in New

York. For example, in January 1977 magazines entitled

‘*Lollitots,’’ ‘‘Nudist Moppets,’’ ‘‘Brat,’’ and ‘‘Tots,’’

which showed children from three to sixteen in lewd and

suggestive poses, were available in bookstores in Times

Square. Also sold in Times Square were films showing

children involved in sexual acts. For example, in one film,

the well-known ‘‘First Communion,’’ a gang of bikers

invade a church, crucify the priest and then rape five young

girls on the morning of their first communion. Another

film sold at the same time depicts an eight year old boy

and a ten year old girl engaged in sexual conduct." An

6. Sexual Exploitation of Children I, supra note 1 at 10 (state-

ment of Frank Osanka, Professor of Social Justice and Sociology

and specialist in child abuse and neglect), 61 (statement of Inves-

tigator Lloyd H. Martin, Sexually Exploited Child Unit, Los An-

geles Police Department) ; see Dudar, supra note 3 at 46.

7. Cook, The X-Rated Economy, 122 Forbes 81 (1978).

8. Sexual Exploitation of Children I, supra note 1 at 40-44;

Sexual Exploitation of Children II, supra note 1 at 263-65 (state-

ments of Judianne Densen-Gerber, J.D., M.D., President, Odyssey

Institute). See Campbell, Help Sought for Children Used in

Pornography, New York Times, Jan. 14, 1977, Pt. II, p.3, col.

1; Anson, supra note 3 at 150-51; Linedecker, supra note 4 at 31.

The contents of “First Communion” are descri in testimony

(footnote continued on next page)

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undercover police officer who operated an ‘‘adult’’ book-

store in the Times Square area found child pornography

more profitable than materials showing adults. According

to the officer, ‘‘ You pay, say, $3 for a film, you sell the same

film for $20. Eight millimeter, 10- or 15-minute things.

For children, you’d pay more, maybe $7, then you sell

for $25.’ There are also accounts of girls and boys as

young as thirteen dancing in live strip shows and ‘‘peep-

shows’’ in Manhattan."®

The extent of the traffic in New York in materials which

show children engaged in sex can be judged by the amounts

of materials seized in arrests of New York pornographers.

In April 1977, two raids in Manhattan produced 4,000

copies of ‘‘peep-show’’ films showing children from eight

to twelve years old."" In another raid in Nassau County,

the police confiscated 4,000 photographs of girls aged eight

to fourteen engaged in sexual conduct with adults, some-

times their own fathers, including intercourse and oral sex.

The photographer marketed the pictures through adver-

before the Subcommittee to Investigate Juvenile Delinquency. Pro-

tection of Children Against Sexual Exploitation, supra note 1 at

67 (statement of Frank Osanka). The contents of seven other films

were also described, showing children engaged in acts of rape, inter-

course, masturbation, oral copulation, anal-genital contact and uro-

lagnia, with other children and with adults. According to Dr.

Osanka, the theme of sado-masochism prevails in many of the films

and magazines he described for the Subcommittee. /d. The theme

of bestiality is also to be found. For example, in New Orleans, police

arresting three Boy Scout leaders involved in a boy prostitution and

pornography ring discovered boxes of ——— of men and boys

engaging in sex with animals. Linedecker, supra note 4 at 75-76.

9. Cook, supra note 7 at 88.

10. T. Abel-Petersen, Children of the Evening, pp. 97-101

peed Sexual Exploitation of Children II, supra note 1 at 251

statement of Bruce Ritter).

11. Ivins, Eight Held as Principals in Smut Production, New

York Times, April 27, 1977, p.1 col. 6.

Ka

tisements in Screw magazine; along with the photographs,

the police discovered mailing lists containing thousands of

names, primarily from New York, Connecticut, New Jersey,

Pennsylvania and Florida. In all, some twenty-five girls

were involved in this ‘‘cottage industry’’ mail-order child

pornography ring.”

Pornographic magazines, photographs and films involv-

ing children are not peculiar to New York, In his research

on boy prostitution and pornography, Lloyd found no

fewer than 264 different magazines showing children in-

volved in sex,” and large-scale distributors or would-be

distributors of pornographic films and photographs have

been identified in such towns and cities as Port Huron,

Michigan, Winchester, Tennessee, Santa Clara, California,

Houston, Chicago and New Orleans,"

In sum, the nationwide child pornography industry pro-

duces and disseminates materials devoted to showing chil-

dren engaged in every kind of sexual act imaginable, As

12. Linedecker, supra note 4 at 13-17; see People v. Byrnes, 33

N.Y. 2d 343, 352 N.Y.S, 2d 913, 308 N.E, 2d 435 (1974),

13, Sexual Exploitation of Children I, supra note 1 at 333;

Sexual Exploitation of Children II, supra note 1 at 113.

14, Linedecker, supra note 4 at 37-60, 74-80; Lloyd, supra note

4 at 85-89; Protection of Children against Sexual Exploitation, supra

note 1 at 35-42 (statement of Gerald A. Richards, pornographer) ;

Sexual Exploitation of Children I, supra note 1 at 75-76, 94-95

(statement of Robert F, Leonard, District Attorney, Genesee County,

Michigan), 82-88 (articles by Wright, et al. in Traverse City Record-

Eagle), 435-40 (Sneed, Bliss and Moseley, articles in Chicago

Tribune), 442-43 (Loggins and Branscome, Boys Farm Scandal;

People in Rural Tennessee ce! ‘Just Didn't Know’ What Went

On, Washington Post, June 5, 1977) ; Sexual Exploitation of Chil-

dren Il, supra note 1 at 112 (statement of Robin met 4 Sexual

Exploitation of Children (Illinois), supra note 2 at 129, 165-71,

178-77 ; Interim Report of Texas House Select Committee on Child

a : Its Related Causes and Control, supra note 2 at 62-63,

we will now see, the inevitable and tragic byproduct of this

production and dissemination is profound physical and,

especially, psychological damage to the children victimized

by the industry.

Adults who make children engage in sex before cam-

eras or audiences commit a form of sexual abuse which is

seriously damaging to the child. The most obvious danger,

particularly where the child engages in sexual activity with

an adult, is the possibility of physical injury or infection

resulting from the act itself."”. But the psychological con-

sequences of such activity may be even more deleterious;

although physical injury or disease can heal or be cured

medically, the emotional trauma ‘‘may and usually does

result in prolonged or permanent damage to the indi-

vidual,’" The child, merely by reason of immaturity, can-

not intelligently consent to sexual activity involving an

adult." Beyond mere inability to consent, in many cases

the child may actually be coerced into participating by pa-

15. Blumberg, Child Sexual Abuse; Ultimate in Maltreatment

Syndrome, 78 New York State Journal of Medicine 612-16 (1978) ;

see Sgroi, Comprehensive Examination for Child Sexual Assault:

Diagnostic, Therapeutic and Child Protection Issues, reprinted in

Burgess, Groth, Holmstrom and Sgroi, Sexual Assault of Children

and Adolescents, pp. 143-57 (1978).

16. Blumberg, supra note 15 at 614.

17. Sexual Exploitation of Children 1, supra note 1 at 5 (state-

ment of Frank Osanka). See Finkelhor, What's Wrong with Sex

Between Adults and Children? 49 Am. J. Orthopsych, 692, 694-95

(1974) ; Burgess and Holmstrom, Sexual Trauma of Children and

Adolescents: Pressure, Sex and Secrecy, reprinted in L. Schultz,

The Sexual Victimology of Youth, pp. 67-71 (1980),

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rental command, physical abuse or blackmail."" Such non-

consensual sexual activity disrupts the child’s natural sex-

ual development and can have a devastating effect on the

child’s personality and relationships with others.” The

harm is clear from the symptoms observed in children pre-

maturely sexualized by adults, They develop symptoms

such as headaches, loss of appetite, enuresis, loss of sleep

and nightmares, and social symptoms such as poor per-

formance in school, withdrawal from normal social life

and sexual delinquency.” Of course, where the sex act is

forcible, the trauma is all the more severe.”!

One abundant sourve of models for the child pornog-

rapher is runaways, who often turn to posing for porno-

graphic photographs and films in order to survive” For

the child who sells his or her body out of economic need,

the psychological results can be devastating. Sex is re-

moved from the context of affection and transformed into

18, See Guio, Burgess ard Kelly, supra note 5 at 68, and other

sources cited in Appendix C (pp. 8a-10a) of the brief amicus curiae

submitted by Covenant House in support of the petition for cer-

~— A a also Anson, supra note 3 at 152; Linedecker, supra note

4 at ’

19. Blumberg, supra note 15 at 614; Sexual ae of Chil-

dren I, supra note 1 at 9 (statement of Frank Osanka), 41-43 (state-

ment of Dr, Densen-Gerber) ; Weeks, The Sexually Exploited Child,

69 So. Med. J. 848, 850 (1976) ; see also Gaylin, The rickly Prob-

lems of Pornography, 77 Yale L. J. 579, 592-93 (1968),

20, Blumberg, supra note 15 at 614; Burgess, Groth and Me-

Causland, supra note 5 at 115-16; Burgess and Holmstrom, supra

note 17 at 72-80.

21. Blumberg, supra note 15 at 614; Finkelhor, Sexually Vic-

timized Children, pp. 104-07 (1979),

22. Sexual Exploitation of Children I, supra note 1 at 57, 59

statement of ee Martin) ; Sexual Exploitation of Children

I, supra note 1 at 249-51 (statement of Bruce Ritter) ; Abel-Peter-

son, dren of the Evening, supra note 10, passim; Koestler, Run-

away Teenagers, Public Affairs Pamphlet No, 552, p. 8 (1981).

lla

an impersonal act, the subject of a commercial transac-

tion. The child comes to view himself or herself as an

objeet to be sold.* According to Father Bruce Ritter of

Covenant House,

The worst part of it is that children have no under-

standing of consequences. They haven’t developed

any kind of insight, while attitudes form very quickly.

This means that if you put a kid in the sex industry,

he’s going to split himself in two. For a while he’s

going to stay inside one half of his head and decide,

‘*What I am over here is good and that’s me, and what

I do over there is something else.’’ But gradually the

two sides begin to merge, and the attitudes almost in-

variably follow the activity, not vice versa. We used

to think that the kid got into the industry because of

bad attitudes and then healed when he stopped, but

that’s not so—it’s pretty much always the other way

around, A kid gets into prosititution because he has

to survive, he has no place to go; and then once he’s

involved, the attitudes that justify it take shape.**

There has been little scientific study of these effects due

to the recency of child pornography as a focus of concern.

However, the single reported psychiatric case history”

firmly supports the view that involvement in child por-

23. Herbert Freudenberger, quoted in Child’s Garden of Per-

versity, Sexual Exploitation of Children I, supra note 1 at 424; see

Stoller, Centerfold: An Essay on Excitement, 36 Arch. Gen. Psych.

1019, 1020, 1023-24 (1979); Burgess, Groth and McCausland,

supra note 5 at 117-18; D. Bracey, “Baby-Pros”: Preliminary Pro-

files of Juvenile Prostitutes, pp. 51-52 (1979).

24. S. Janus, The Death of Innocence, p. 177 (1981). See also

T. Abel-Peterson, Children of the Evening, supra note 10, passim;

Anson, supra note 3 at 154, 156; Protection of Children Against

Sexual Exploitation, supra note 1 at 18-21 (statement of “Marty,”

juvenile prostitute in Chicago).

25. Schoettle, supra note 5,

12a

nography is seriously harmful. That case involved a

twelve-year-old girl involved in a pornography ring for

three and one-half years. Her experience brought no

pleasure but only fear of recrimination. Projective test-

ing after the ring was exposed depicted her as helpless and

depressed, with a denial or pulling away from sexual con-

cerns. ‘‘A child whisked into an adult sexual world,’’ she

showed confusion of sexual roles, alternately flaunting a

pseudomature sexual competence and shrinking from the

prospect of maturation. The psychiatrist’s observations

of the child caused him to conclude that a child’s involve-

ment in pornography causes anxiety. If, as in this case,

the degree of anxiety aroused is threatening to the imma-

ture ego, the experience can be traumatic. Besides these

effects resulting from the sexual abuse itself, the child in

this case suffered additional guilt, anxiety and loss of self-

esteem while recounting her experiences to the police and

the courts and in treatment. When neighbors learned of

her involvement in the ring, they harassed her to the point

where she threatened suicide.”

26. Id. at 293-97. Schoettle suggests that the effects of using

children to produce pornography resemble those of incest, id. at 296-

97, and there is wide agreement that incest can bring about substan-

tially harmful effects, such as guilt, depression, feelings of worthless-

ness and psychologically induced somatic disorders. See, ¢.g.,

Summit and Kryso, Sexual Abuse of Children: A Clinical Spectrum,

48 Am. J. Orthpsych. 237 (1978) ; Lewis and Sarrel, Some Psycho-

logical Aspects of Seduction, Incest and Rape in Childhood, 8 J. Am.

Acad. Child Psych. 606 (1969); D. Finkelhor, supra note 21 at

31-32, 97-108, 185-214; R. Kempe and C. Kempe, Child Abuse, pp.

54-56 (1978). In addition to these psychological effects, there is evi-

dence linking incest with ific pathological behaviors such as prosti-

tution, James and Meyerding, Early Sexual Experience As a Factor

in Prostitution, 7 Archives of Sexual Behavior 31 (1978); Sexual

Exploitation of Children II, supra note 3 at 135 (statement of Henry

Giarretto, Director, Santa Clara County Child Sexual Abuse Treat-

(footnote continued on next page)

13a

The harms caused to children who are required to en-

gage in sex in the production of films and photographs are

not limited to those caused by the production process itself.

Once a child’s sexual conduct has been recorded, the film

or photograph is available to any purchaser or viewer.

The dissemination of such materials seriously invades the

child’s privacy,” and it may cause severe embarrassment

as well.”* In some cases, moreover, child molesters have

used photographs of their victims to blackmail them into

keeping silent.”*

In addition, such materials may be dangerous to chil-

dren other than the child depicted. Law enforcement off-

cers observed that child molesters use pornography, includ-

ment Program), drug abuse, Benward and Densen-Gerber, /ncest As

a Causative Factor in Anti-Social Behavior: An Exploratory Study, 4

Contemp. Drug Prob. 322 (1975), and abuse of the victim’s own

children. Summit and Kryso, supra at 248. See generally K.

Meiselman, Incest: A Psychological Study of Causes and Effects with

Treatment Recommendations, pp. 194-261 (1978). To the extent

that the use of a child in the production of pornography resembles

incest, it may be expected to have the same pathological results.

27. See brief amicus curiae submitted by Covenant House in

support of the petition for certiorari, pp. 8-14.

28. Consider the reaction of Brooke Shields to a recent proposal

to publish photographs of her which were taken in 1975, when she

was ten years old: “I’m embarrassed by those photos. I wasn’t em-

barrassed when they were taken, but since then I’ve become more

conscious of boys, of my body and myself. Now I just want to be

myself. Those pictures are not me now.” The photographs in ques-

tion depicted mere nudity, not actual or simulated sexual conduct.

Brooke and Teri, Us, January 19, 1982, p. 65; see Matter of Shields

v. Gross, —— Misc.2d ——, -—— N.Y.S.2d , N. Y. Law Journal,

November 16, 1981, p. 13 col. 1 (Sup. Ct., N.Y. Co., 1981). See also

L. Lovelace, Ordeal, pp. 1, 261 (1980).

29. Sexual Exploitation of Children 1, supra note 1 at 58-59

(statement of Investigator Martin) ; Linedecker, supra note 4 at 38.

l4a

ing child pornography, to seduce their young victims.”

And the danger exists that child pornography, like pornog-

raphy of any kind, will stimulate its adult users to act

out in real life the fanstasies it engenders. A direct causal

link between child pornography and child molestation has

not so far been scientifically established. Nevertheless,

child abusers are avid consumers of child pornography,”

and it is impossible to rule out the danger that pornog-

raphy is one factor among the complex of causes which

precipitate the abuse, particularly where the pornography

is of a violent, sadistic nature and the user is sexually

disturbed.” In 1973 this Court noted that ‘‘there is at

least an arguable correlation’’ between obscenity and

crime. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 58

(1973). The case for that proposition is stronger now than

it was in 1973,® and there is no evidence whatever which

suggests that materials which depict children engaged in

sexual conduct, whether legally obscene or not, are any

less likely to lead to criminal conduct than other porno-

graphic materials.

Ultimately, whether it is possible to show conclusively a

correlation between the viewing of child pornography and

30. Sexual Exploitation of Children I, supra note 1 at 58-59

(statement of Investigator Martin) ; Linedecker, supra note 4 at 38.

31. See, e.g., Protection of Children Against Sexual Exploitation,

supra note 1 at 37-38, 45 (statement of Gerald Richards) ; Linedecker,

supra note 4 at 54, 75-76, 214-18.

32. Court, Pornography and Sex Crimes: A Re-evaluation in

Light of Recent Trends Around the World, 15 International Journal

of Criminology and Penology 129, 152-54 (1976) ; Sex and Violence:

Pornography Hurts, 118 Science News 166, 172 (1980).

33. See Chervenak, Selected Bibliography on Pornography and

Violence, 40 U. Pitt. L. Rev. 652, 660 (1979) (authorities collected ).

15a

the sexual abuse of children is of secondary importance.

What is primary and beyond dispute is that the production

of child pornography necessarily entails the criminal sex-

ual abuse of the boys and girls who are made to perform.

The psychological and physical damage to these children

demonstrates conclusively that child pornography is not a

victimless crime, but a substantial social evil.