# Amicus Curiae Brief — Osborne v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0536%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 495 U.S. 103 ## Text Z In The Supreme Court of the United States October Term, 1989 CLYDE OSBORNE, - ON APPEAL FROM THE SUPREME COURT OF OHIO BRIEF OF AMICUS CURIAE CHILDREN’S LEGAL FOUNDATION ALAN E. SEARS DOUGLAS V. DRURY | 2845 E. Camelback Rd. Suite 740 Phoenix, AZ 85016 (602) 381-1322 OrcT AVAILABLE COPY | oul TABLE OF CONTENTS TABLE OF AUTHORITIES.......- eevecces -iv CONSENT OF THE PARTIES....++eeeee0+ 1 INTEREST OF AMICUS CURIAE....++ee6-s 1 INTRODUCTION. .cccccccccesccccceseee & ARGUMENT... csccccecsesessesseeeveveelhd I. THE STATES HAVE A "SURPASSING" INTEREST IN REGULATING CHILD PORNOGRAPHY BECAUSE OF THE GREAT HARM IT INFLICTS UPON OUR CHILDREN... .12 A. Child Pornography Is Produced By Sexually Exploiting A Child....s«sc«ee+14 B. Child Pornography Creates A Permanent Record Of Abuse Of The Children ImnVOl]lV@d.ccccccccccsccsseceeeelS Cc. Child yy Itself Is An Inetrument Of Abuse........17 D. Child Pornography Is Used Por Illicit Purposes By POSSGOSBBOLG. cc cc cccscccccceeeeel® E. Production, Distribution And Possession Of Child aphy Violates Legitimate Privacy Interests Of The Children Abused........19 II. Itt. A. l. 2. A STATE MAY CONSTITUTIONALLY PROHIBIT POSSESSION OF CHILD PORNOGRAPHY. ccccccccccssssssesal The Ferber Rationale That Child Pornography Is Outside The Scope Of The First Amendment Permits States To Prohibit Possession of Child Pornography... ceccccsesseseeee2dd Criminalizing Possession Of Child Pornography Does Not Violate The Possessor’s Right To Privacy........+++.++28 THE OHIO CHILD PORNOGRAPHY POSSESSION STATUTE, O.R.C. 2907.323(A)(3) IS CONSTITUTIONAL AND VALIDLY CRIMINALIZES NON-PROTECTED CONDUCT. cccccccccccccccesscessdt The Ohio Supreme Court Authoritatively Construed Ohio Law In A Constitutional CO EEE ee F The Ohio Supreme Court ye | Construed The Term ° » PPT TTTITITTITTLITee > The Ohio Supreme Court ly Interpreted The Statutes Scienter Requirement... .cceseceseseeeess4l 3. The Ohio Supreme Court Properly Construed The Statute To Meet Constitutional Requirements By Applying The Statute Only When The Nudit Constitutes A “Lewd Exhibition" Or Involves A Graphic Focus On The Genitals". ..cceccseceees42 B. O.R.C. Section 2907.323(A) (3) Is Not Substantially Overbroad..ccccccccccseseeeee e458 fF CERTIFICATE OF SERVICE....+++++++++60 -iii- TABLE OF AUTHORITIES Cases Pages 4000 ts Inc. v. State, (Ark. 1986).......58 Bowers v. Hardwick, 478 U.S. 186, , 92 L. Ed. 2d 140 et 6 Tee Broadrick v. Oklahoma, 413 U.S. SOL (1973)... . ee eee ee 0 45,48 Com. v. Bono, 7 Wass.App. 849, 384 N.E.2d 1260) ccccccccccecccesssessesssess dt Com. v. Ferro, ss. 379, 361 N.E.2d 1234 C1977 cccccccccccccccccccccccccc cS Com. v. Stock, ° 8 (Pa.Super 1985).....58 Dombrowski v. Pfister, @ @ TTT TELITITTTTrt | | Felton v. State, e (Ala. 1988)... eee00222 In Re Kimbler, ° -3rd 453, 161 Cal.Rptr. 53 (1979) cccccccccccesseseseseessd® Massachusetts v. Oakes, TSI U.S. T05 L. Ed. 2d at 505 EE ond cccccccccccect Miller v. California, a — TYTTITITITITITTY (St. -iv- N.A.A.C.P. v. Button, oe * )- “ee eeeeeeeeeee 38 New York State Club Association v. New York City, .S. , 101 L. Ed. 2d 1, 108 S. Ct. 2225 (1988)........... 50 New York v. Ferber, * o B2)ecccceeceeeee eds, ld, 25,48,56 Paris Adult Theatre I v. Slaton, o * TTTTTTITITICTT TS P le v. Geever, 357 N.E.2d 12700 (Ill. 1988)......22,28 le v. Illardo, reas W.Y.2d 408, 423 wN.Y¥.S.2d 470, 399 N.B.2d 59 (1979)......--58 P v. Illinois, OTST UB. 157 11987)... 2.0. 53 Rippr tease v. Collin, ° Be ccccccceceeed? Rose v. Locke, 73 U. 3. 7 (1978S) cece ccccceeees5h Roth v. United States, e@e TYTTITITITTIT ) Tt”. a | Vv. yt P ewe C9) cc eecccccceveetds 2B, 30 State v. Baker, " (Kan.App. 1985).....58 State v. Davis, . (Wash. 1989)... 66004422 -Vv=- State v. J.R. Distributors, Inc., 82 Wash.2d 584, S12 P.2d (1979)..58 State v. Lesieure, els , 404 A.2d 457 COTO pd ccccccccccccccccccccees De State v. Martin, >. > 2 (Tenn. 1986)......58 State v. Meadows, io State 3rd 43, 503 N.E.2d 697 (1986) cert. denied, 480 U.S. 936 C1GST Pecccccccccccccccccccccesagady 34 State v. ee . . 363 (1988)... 2 cee e e 44 United States v. 12-200 Foot Reels, >. . THTTITITITT TTT Tt U.S. Vv. w ’ . (9th Cir. 1987)....55 Other Authorities es Model Penal Code and Commentaries, § 751.4(3) Final of the Atto e on s page 1986).......27 O.R.C. Section errrrrrrrrnrnrnvyéaiie O.R.C. | rrrTTTrTTrrrir+TTTee. O.R.C. 2907. 322(A) (SS). cence ccceeees2dD O.R.C. 2907. 323(A) (3). ee eeeccceeees9,37 39,42,45,57 P. Schlafl ys ed. Pornography Victims 10 (1987 —TTTTTTTTTTTTTTTh CC; Protection of Children From Use in Pornography: Toward Constitutional and Enforceable Legislation, 12 U. Mich. J.L.R., 295, 301 C19TOpcccccccccccccecccseelhS Shouvlin, Preventing The Sexual Exploitation of woe dren: A Model Act, 17 Wake Forest L. Rev. 535, 545 (ISBT) oo cee ee ee 16 -vii- CONSENT OF THE PARTIES Attorneys for Appellant and Appellee have consented to the filing of an amicus curiae brief by Children’s Legal Foundation. (Appendix A). INTEREST OF AMICUS CURIAE Children’s Legal Foundation, Inc. (CLF), formerly Citizens for Decency through Law, Inc., is a non-profit legal organization founded in 1957. The Foundation exists to assist public officials in the enforcement and drafting of constitutional obscenity and child pornography laws. It also provides legal assistance to victims of pornography, especially child victims. CLF provides public information on legal and social issues related to pornography, and on sexual exploitation ele and victimization by pornographers. The Foundation has a legal staff of attorneys practicing exclusively in the First Amendment/pornography area. CLF has filed more than 50 amicus curiae briefs with this Court on virtually every major obscenity and child pornography issue before this Court in the past three decades. CLF attorneys have participated in trials and appeals in more than 40 states. It has more than 120 affiliated chapters across the nation representing approximately 100,000 supporters. The Poundation’s Executive Director Alan B. Sears is the former Executive Director of the Attorney General’s Commission on Pornography. In that capacity he oversaw and supervised the drafting of the Final Report with its Recommendation Number 45 that states adopt laws prohibiting the possession of child pornography. The Commission, after more than two years of examining the issue from legal, moral, clinical, social scientific, and other relevant perspectives, concluded that possession of child pornography is so intimately connected to the acts of child molestation depicted that a prohibition on possession of such material was required. Children’s Legal Foundation is profoundly concerned with the victimization and exploitation of children by child pornographers. It believes the Ohio law at issue is a constitutional and necessary method of deterring the child abuse and molestation involved in every child pornography case. INTRODUCTION The harm inflicted upon children by child pornography gives the states a “surpassing” interest in regulating production, distribution and possession of the material. Each time child pornography is produced, a child is sexually exploited. Reproductions of these acts are “crime scene photographs" and distribution of them constitutes continued exploitation of the child involved. The photographic reproductions are a permanent record of the abuse suffered by the children involved. They fear discovery by loved ones and blackmail by the producers and possessors of the photographs. In addition, child pornography in and of itself is an instrument of abuse. Pedophiles and other child molesters show this material to their intended victims in an effort to portray such conduct as normal. There are no “innocent collectors" of child pornography. A child’s constitutional risht to privacy is violated by the production, reproduction, distribution and possession of the material. Because of the pervasive nature of the extreme harm inflicted upon our society by child pornography, a state may constitutionally prohibit possession of child pornography. In determining that child pornography is outside of the scope of protection of the First Amendment, this Court recognized that states have greater leeway in the regulation of pornographic depictions of children. New York v. Ferber, 458 U.S. 747 (1982). The state has a compelling interest in safeguarding the physical and psychological well-being of children. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically. related to the sexual abuse of those children. The advertising and selling of child pornography provides an economic and social motive for the production of those materials. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest. Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with prior judicial precedent. See Ferber, supra. Ali of the reasons above stated, for allowing the prohibition of production and distribution of child pornography also apply to its possession. The market for child pornography cannot be dried up without curbing demand for the “product.” By criminalizing possession and treating it as a form of contraband, the states can substantially “dry up” the market by lowering demand and taking away the economic and social incentives of the producers and distributors. Criminalizing possession of child pornography does not violate the possessors right to privacy. Although the Constitution extends special safeguards to the privacy of the home, that protection is not without limitation. In Stanley v. Georgia, 395 U.S. 557 (1969), this Court found the constitution proscribed prosecution for possessing certain “obscene” materials, but did not express an opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials or in other locations than the home. Since that time, the Court has viewed Stanley, supra, as explicitly narrow and precisely delineated; and has not been disposed to extend the precise, carefully limited holding of Stanley, supra. There are additional constitutional concerns raised in the instant case that were not present in Stanley, supra. Stanley, supra weighed the interest of a possessors right to privacy in his own home against the right of the state to protect society from obscene material and to protect the individual’s mind from the effects of obscenity. This case involves a persons right to privacy in his home as against state's surpassing interesting to protect its children from harm and the victia children’s right to privacy. The balance of these interests must be struck in favor of the compelling interest of the state andthe privacy rights of the children. Ohio constitutionally prohibited possession of certain types of child pornography in enacting O.R.C. 2907.323(A)(3). The Ohio Supreme Court authoritatively construed the statute to conform to the Constitution. The construction given the statute narrowed it, making it more difficult for the state to obtain a prosecution. The Ohio statute is constitutional as applied to Appellant. Appellant objects to the Ohio Supreme Court’s construction of the term “minor. However, he fails to note that under either possible construction, (as discussed hereinafter, p. 39) the children depicted in the pictures he possessed were minors. (The children depicted were 14 years old or younger.) Ohio Supreme Court did not “add a scienter requirement” as claimed . by Appellant. Such a requirement was already part of the statutory scheme. By noting that minors. depicted in a state of nudity involved a “lewd exhibition" or a “graphic focus on the genitals", the Ohio Supreme Court properly construed the statute to meet constitutional requirements as set forth in New York v. Ferber, supra. The statute is not substantially overbroad. This Court noted in Ferber that the overbreadth doctrine is “strong medicine", that it is employed with hesitation, and then only as a last resort. Application of the doctrine becomes even more attenuated where, as here, behavior moves from “pure speech” toward conduct and the conduct is within valid criminal laws that reflect a legitimate state interest. Appellant has failed to demonstrate that the Ohio statute is substantially overbroad. The fact that Appellant ' was convicted prior to the construction of the statute by the Ohio Supreme Court does not relieve him from the consequences of his conduct. Where a state appellate court adopts a limiting construction of a statute to cure overbreadth, that statute may be applied to conduct occurring prior to the construction, as long as the application affords fair warning to the Defendant. Appellant clearly had fair warning that his conduct would violate the statute. Due to the great harms inflicted by child pornography, and the _ states surpassing interest in regulating it, possession can be constitutionally regulated. The Ohio statute is such a constitutional regulation of child pornography. I. THE STATES HAVE A “SURPASS ING" INTEREST IN REGULATING CHILD PORNOGRAPHY BECAUSE OF THE GREAT HARM IT INFLICTS UPON OUR CHILDREN. The harm of child pornography extends far beyond the harm caused to the children injured in the production of the material. Child pornography should be treated as contraband and its mere possession should be a crime. Pedophiles and child abusers use this material to draw children into a “cycle of pornography." First, pornography is shown to the child for “sex education.“ Second, pedophiles attempt to convince the child that explicit sexual activity is acceptable, even desirable. Third, the material is used to convince the child that other children are sexually active. Pourth, child pornography desensitizes; it lowers a child’s inhibitions. Fifth, some of these sessions progress to sexual activity. Sixth, photographs or movies are taken of the sexual activity. Finally, those photographs or movies are shown to other children, thus completing the cycle. Final Report of the Attorney General’s Commission on Pornography, page 138 (See Appendix B). This is not merely a discrete, limited threat. FBI Special Agent Kenneth Lanning, a noted expert in investigation of child sexual abuse, testified before the Attorney General's Commission on Pornography that pedophiles, “may be small in number, (but) they are a very serious threat to our society because they have a potential for large numbers of victims.... My experience has been [that] ... all preferential molesters or pedophiles ... collect child pornography and/or child erotica...." Testimony of Special Agent Kenneth Lanning, Attorney General’s Commission on Pornography hearing, Miami, Florida, 11/20/85, pages 230, 232. This Court has noted that “[(T)he use of children as...subjects of pornographic materials is very harmful to both the children and the society as a whole.” (citation omitted). “It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual disfunctions, and have a tendency to become sexual abusers as adults." (citation omitted). New York v. Ferber, 458 U.S. 747, 758 fn 9 (1982). A. Child Whenever child pornography is produced, a child is sexually used, physically abused or injured and -1l4é- emotionally scarred. The use of a minor for most sexual activities is proscribed by state laws. Reproductions of these acts are “crime scene photographs.” Many of the sexual acts depicted in child pornography are criminal even aside from the age of the sinor children; for example many states still proscribe bestiality, sadomasochistic sexual acts, and various formes of sodomy. (See for example the Georgia and Virginia state criminal codes.) threat to the child victim than does sexual abuse or prostitution. Because the child's actions are reduced to «a recording, the pornography may haunt his in future years, long after the original misdeed took place. A child who has posed for a camera sust go through life -15- knowing’ that the recording is circulating within the mass distribution system for child pornography.” New York v. Ferber, supra at 759, fn 10 quoting Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981). “It is the fear of exposure and the tension of keeping the act secret that seem to have the most profound emotional repercussions.” Note, Protection of Children From Use in Pornography: Toward Constitutional and Enforceable Legislation, 12 U. Mich. J.L.R., 295, 301 (1979). In addition to the fear that a loved one may discover the material, a child may also, fear blackmail from the producer, collectors, or other adults; a fear that they will be forced to perform further acts lest the prior photographs be revealed. In recent years the -16- “exposure” and resulting harm even to adults who posed at an earlier age is well known. (One well known example is Miss America, Vanessa Williams Vv. Penthouse, see U.S.A. Today, July 4, 1986 (Life) at 1, Col. l. This continuing threat exacerbates the original harm; it is a separate and distinct harm, a continued molestation and abuse of the child. CG. Child Itself Is An netrumen se Pedophiles and other child molesters show child pornography to their intended victims in an effort to portray sexual conduct by children as normal conduct, something that other children do and enjoy. It is an attempt to reduce a child’s natural inhibitions to such behavior. Pedophiles also use child pornography as an instructional tool. One victin, Mary Steinman, -17- i — described the abuse she received from her father as follows: He would look at his porno pictures almost every day, using them to get ideas of what to do to me or amy siblings. I have had my hands tied, my feet tied, my mouth taped to teach me big girls don’t cry. He would tell me I was very fortunate to have a father that would teach me the facts of life. My father had an easel that he put by the bed. He'd pin a picture on the easel and, like a teacher, he would tell ame, This is what you're going to learn today. He would then act out the picture on me. As early as the age of four; my father would rent me out to — 9 people for the purpose of sex. P. Schlafly, ed. Pornography’s Victims 108 (1987). "The act of selling these materials (guarantees) that there will be an additional abuse of children." Ferber, supra, at 761, fn 13. (citation omitted) D. Child Is Used For c sessors There are few, if any, “innocent collectors" of child pornography. It is used to aid in the sexual fantasies, to assist in masturbation and other forms of gratification of the possessor, and is used to lure and instruct child victims. The photographs which the offender possesses are records of a real child who was traumatized, terrorized, used and abused. In our society, there is no legitimate use for child publication of the visual material increases the emotional and psychic harm suffered by the child. (citation omitted) Thus, distribution of the material violates the individual interest in avoiding disclosure of personal matters." (citation omitted) -19- Ferber, supra, at 759, fn 10. The victims privacy rights are violated repeatedly as the photographs are circulated, collected, used and reused by the pedophiles and child pornographers and continually distributed throughout the child pornography aetwork. Child pornography inflicts numerous, severe and continuing harms upon America’s children and their privacy interests. Children cannot consent to either the sexual abuse or the photography. Pedophiles and child pornographers violate the children, photograph their violations for use in sexual gratification, and use those photographs to entice other children into this cycle of pornography. It is hard to imagine a more objectionable use of the most private parts of a child’s body. The need to prevent these evils -20- — gives the states a surpassing interest in protecting children by drying up the market for child pornography through regulation. II. A STATE MAY CONSTITUTIONALLY PROHIBIT POSSESSION OF CHILD PORNOGRAPHY This Court noted in Ferber, supra, the relationship between the distribution of photographs and films depicting sexual activity by children and the sexual abuse of those children. Id. at 761, fn 13. The only practical way to end this abuse is to dry up the marketplace of child pornography by “imposing severe criminal penalties on persons selling, advertising or otherwise promoting the product.” Id. at 760. Possession is an integral, indeed the most important link in the child pornography chain. The mere existence of a “marketplace” creates a demand for more photographs which eZie —— creates a demand for more abuse which extends in an ever growing cycle. This court has recognized that the state has a compelling, indeed o surpassing interest in stopping the production and distribution of child pornography. Id. at 757. Numerous courts have recognized that the only method of accomplishing this objective is to dry up the market. Felton v. State, 526 S.2d 638 (Ala. 1988), State v. Davis, 768 P.2d 499 (Wash. 1989), State v. Meadows, 503 N.E.2d 697 (Ohio 1986), People v. Geever, 522 N.E.2d 1200 (Ill. 1988). Although Ferber, supra was decided in the context of distribution of child pornography, the same problems exist and the same reasoning applies to the possession of child pornography. The Ferber Rationale That Child ornogr s s + n « ates To Prohibit Possession Of Child A. -22 poaay raphy outlets. Rather, as a Postal official told Congress in 1982, the “bulk of child pornography traffic is noncom- mercial.”** This meant, as a Federal Bureau of Investigation witness told the same hear- ing, that federal enforcement of the 1977 Act was “seriously impaired” by its “for sale” re- quirements.‘** Further, the limitation of the trafficking provision of the 1977 Act to “ob- scene” child placed substantia! obstacles in the path of prosecutors .** Confronted by this evidence, and rein- itations, Congress in May, 1984, ap broad revision of the 1977 Act. es prod 1977 Act, and raised the age limit of protec- tion to .”’ Provisions raising the amount of potential fines were included ,‘* along with new sections authorizing criminal and civil forfeiture actions against viola- law's reach in this area: only “visual depic- — of children are criminally action- 41 The result of these revisions was a dramatic increase in federal prosecutions. In the first nine months after of the 1984 Act vir- continued to produce few indictments, in part because of the extraordinary difficulties of investigation and proof, and in , per- haps, because the more easily u traffick- ing provisions often may be invoked against suspected senbeee tan instead. It appears, in any case, that the 1977 Act eCectively halted the bulk of the commercial child phy industry, while the 1984 revisions have enabled federal officials to move against the noncommercial, clandestine mutation of that industry. State Laws. The federal interest in protecting children, of course, is secondary to that of the states, which act as principal guardians against the abuse or neglect of the young. It was indeed a state law substantially broader than the 1977 Act which prompted the land- mark decision in New York v. Ferber.** States To a substantial extent the states have exer- cised that power. Nearly all ban the produc- tion of child pornography, and an overwhelming majority prohibit distribution as well.** Most prohibit as well parental con- esent or accession to use of children in sexu- ally explicit materials, and many outlaw facilitation of sexual exploitation through fi- ing child pornography." Some, have prohibited as well the possession of child an extremely effective weapon molesters.“* Yet it is clear, too, that much remains to be accomplished on the state level. Not all states ban trafficking in child pornography, so that it remains possible in some parts of this country to distribute such materials intrastate without fear of criminal penalty. Further, only about half of the states protect children from use in pornography until their eighteenth birthday; in other states the age limit is set at sixteen or seventeen.*” (This Commission has determined, indeed, that such protec- tions should, on a somewhat more limited ba- sis, be extended to age twenty-one.)*™ Finally, few states appear to have taken action to pro- vide substantial assistance to victims of child pornography—either through direct aid or through encouraging private civil reme- dies.** The primary role of states in caring for children would seem to argue for their as- sumption of the principal share of the burden of providing such assistance. The legislative assault on child pornogra- phy drastically curtailed its public presence; it has not, however, ended the problem. Sex- ual exploitation of children has retreated to the shadows, but no evidence before the Com- mission suggests that children are any less at risk than before. The characteristics of both perpetrators and victims, combined with the extremely limited state of professional under- ae . ~ a ta j is a passing Those who sexually exploit children do so for a wide range of reasons, and come from an categories: “preferential” molesters.“' The former are people who act out of some serious sexual or psychological, need, but choose children as victims only when they are readily and safely accessible. “Preferential” molesters, on the other hand, are those with a clear sexual pref- erence for children (“pedophiles” in common erential” abusers child and/or erotica almost as a matter of course. It is unclear how large each of these respective categories is, but it does seem apparent that “preferential” child molesters over the long term victimize far more children than do “sit- uational” abusers. The approaches adopted by various perpe- trators also vary widely. The most recent re- search on “child sex rings” indicates that they range in structure from highly organized, “syndicated” operations involving several perpetrators and many children with produc- tion of child pornography for sale or barter, to “solo” operations in which children are abused and photographed by only one perpe- trator for his pleasure.“? Child pornography, while serving primarily the perpetrator’s own needs, is also useful for lowering the inhibi- tions of other children being recruited by the perpetrator.” Wholly commercial operations appear to be extremely unusual, but are still not unknown.“ The normal absence of commercial mo- tives, and the strong sexual and/or psycho- logical needs which push both situational and preferential molesters toward sexual abuse of children in pornography, suggest that the demand for such material may be somewhat inflexible. While situational abus- ers may be steered away from children as vic- tims, preferential abusers may not—and they are prone, moreover, to far more frequent abuse. However the criminal law, sex- ual exploitation of seems likely to re- main an irresistible temptation for some. ee en, tims seems inexhaustible as well. Children used in pornography seem to come from every class, religion, and family background; a ma- jority are exploited by someone who knows them by virtue of his or her occupation,“* or a neighborhood, community or fam- ily relationship. Many are too young to know what has happened; others are powerless to refuse the demand of an authority figure; some seem to engage in the conduct “volun- tarily,” usually in order to obtain desperately needed adult affection.* Adolescents used in pornography are often runaways, homeless youth or juvenile prostitutes who may feel with some justice that they have little choice but to participate.“’ Thus it seems clear that a large class of children and teenagers vulnera- ble to use in pornography will continue to ex- ist. Even redoubled e to teach children to protect themselves from such involvement will not wholly blunt the strong social, fam- ily, and economic forces creating that vulner- ability. The rise of the child pornography “prob- lem” took medical, social services and legal communities as much by surprise as it did Congress and the general public. It is only fair to note, therefore, that what one witness dubbed “conceptual chaos” is a serious obsta- cle to progress against sexual exploitation of fll have faced serious Tenatance from thei — thoughts that perhaps he did not tell The study of novel investigative a ies here ti. is in its :w a child itself is not sufficient without use of the victim as a witness, to es- tablish the prosecutor's case, parents are likely to face an excruciating dilemma. Law- yers and judges, like doctors and mental! health professionals, remain largely ignorant of how to respond to child pornography vic- tims. That A peor sap is ac, + maga be- cause suffered by children in ae often devastating, and always significant. In the short term the effects of such involvement include depression, sui- . i F @ if i i bieait in te +8 Fab fie il seemed _ portant to examine possible approach to the ctsto of de» law and crsvince to victims. While limitations of time and re- | i AOI) RAY EAONOG Y 'SURISITION UH) WoO neem jo neeng jempay “soneR, jo TABLE 3 Cycle One of the most common nana at rat enema dw mpg Ym is: “How does ———— ee most common ways a child is to pornographic activity (1) Parnography is shown to the child for “eax education” 2 convince child 6 movies are taken of ab a. et re - - g Cycle of Pornography (3) Child pare used w convince child (5S) Same of these sessions progress to that other children are sexually sexual activity. yt +, (4) Child nay Sasntiane— lowers child's ' Source: S. O Brien. Child Pornegraphy, 68. (1983). +? eee ssion on Obscenity and Pornography 7-23 (1970). oe. 389. i. 390. tt ]. Dover, Greek Homosexuality (19 See, description of P. ony arte A+ Idhood, pp. son ven (een) (diary. of Heroard, physician to Henri IV, 391 who set down graphic etal of veal “play” with the child Louis XIII). 456 U.S. 474, 746 (1982). ee ee ‘sexua! conduct’ proscribed must also be euteble limited end described” id., and must not include mere “nudity.” Id., p. 765 n. 18. The New York statutes in question, Penal Law 263.15, wes found to fit these requirements even though it tt included “lewd exhibition of the geni- tals ” in its definition of proscribed sexual conduct. Id.. p. 773. 393. Lena eA eg emt “child noting the judgment of legislators end clinicians that “the use of children as subjects of pornographic A peor y Snderwy4 to the physiological, emotional, and mental! health of the child,” a judgment the Court found “easily passes muster under the First Amendment.” id., p. 758. Ferber actual children have been used. concurring) (no defense based on “serious value” should be allowed) with id., pp. 775-777 (Brennan, }., concurring in Oo eT ae a defense required by First Amendment). 413 U.S. 15 397. pedo Bo IQL 4 SemIg peHUs) “ROO tzsssosn s1q) pO Aypeaonnyeuco eq) “('ddng geet) SSzz-16 efpserti ss[alezel ei asagee? tl i if Hh ill i" Hi 7 : d “SN Oo» ay) APPENDIX C ; RECOMMENDATIONS FOR STATE LEGISLATION RECOMMENDATION 45: State legislatures should amend laws, where necessary, to make the knowing possession of child pornography, a felony. ; Discussion The United States Supreme Court has called child pornography “a serious national prob- lem.”*** In New York v.Ferber, the Court said nent recard ofthe children’s participation in sexual activity, and the circulation of the por- nography exacerbates the harm to the chil- dren. If the sexual abuse of children in is to be curtailed the production and distribution network must be elimi- nated .*** Investigators have identified several uses of child pornography. The first use by pe- , is for sexual arousal and gratifica- ; tion.*** While some pedophiles only collect 7 a and fantasize through it, : — it as a device to aid in the pro- 5 oun own child pornography. P Child pornography is often used as part of a method of seducing child victims.” A child ; who is reluctant to engage in sexual activity } | with an adult or to pose for sexually explicit ‘ photos can sometimes be convinced by view- ing other children having “fun” participating in the activity.** From a very age chil- dren are taught to respect and believe mate- rial contained in books and will thus have the same beliefs about child pornography.*” A pedophile offender will use child por- nography in which the children appear to be having a good time. The offender uses this material to lower the inhibitions of the child and entice him or her into a desired activity. Children who view this material are also sub- ject to a certain amount of peer pressure as they see other children engaged in the activ- ity. Child is also used to illustrate the activities in h the pecophile wishes a child to engage.™ In such instances a pe- offender shows the child the pornog- raphy and asks the child to imitate the pictures. Pornographic used to blackmail the child.** The pedophile offender will use the pictures to intimidate the child. The pedophile offender will threaten the child with showing the pictures to others if the child does not cooperate. Child pornography is also seen as a valu- pet nine | pedophiles. Visual depictions may ‘ended ened betueen es! lectors.** This subjects a child to repeated victimization by countless numbers of pe- dophiles and the child the object of the pedophile's sexual fantasies.** Child pornog- pe engi have originated as a home- made item may eventually by sold to a commercial child pornography publica- tion.** Child pornography has a life of its own. It is The harms to children from child pornog- raphy which the Supreme Court outlined in New York v. Ferber occur as a result of the ex- istence of the material itself.** The enactment evidence of a suspected bookmaking opera- tion.“* They located three reels of eight milli- meter film in a desk drawer and upon viewing the films, they charged the defendant with possession of obscene matter.*’ He was con- victed before a jury.“ The Court re- versed the conviction and that “the mere — Saneeap eens tho etate phy to be unconstitutional % The analvsis tional because the state could not punish the mere private possession of magazines “which depicted minors . . . engaging in sexual activ- ity."** New York v. Ferber** was distin- guished on the grounds that it dealt with distribution and not mere possession of child . In finding the statute uncon- stitutional the Ohio court placed great signif- icance on the language in Stanley where the Supreme Court rejected the contention .~ , ey ape mea obscenity, prem a bag odor f— aaa In ed States v. Miller,” the United States Court of for the Eleventh Cir- against the possession raphy is misplaced. Stanley upheld an individual's right to privately possess ob- scene material.™ The prevailing obscenity it : i : | i if ; fF a Hi iat E 4 £ r eens Se eamiatin’ ox the assertion made by the state of that “exposure to obscene materials may to deviant sexual behavior or crimes of sexua! violence.”*” Mowever, the Court added in « What we have said in no infringes upon the power of the State or Government to make of other items, such as nar- cotics, or stolen goods, « crime. Our in the case turns the holding present ~ upon involved in most statutes making mere pos- session criminal. Nor do we mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materi- als. See, e.g., 18 U.S.C. $793 (d), which makes criminal the otherwise lawful posses- sion of materials which “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any for- eign nation . . .” In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.*” While Ferber admittedly dealt with a stat- ute prohibiting the distribution of child Heyn pean ane ty =a5e gtat i wait ett i 1 Hil HALE fei FAH shdhent ill HHH Pa 536. Miami Hearing, Vol. |, William Dworin, p. 30. 537. Washington, D.C., Vol. Il, john, pp. 47-48. 458 U.S., (1 747. 538. , (1982), p. 74 530. See, e.g. “Sexual exploitation of a minor; classification A. A person commits sexual exploitation of # minor by knowingly: 1. Recording, filming. photogrephing. developing or duplicating eny isual or print med wh minors are engaged in sexual conduct. 2. Nistributing. transporting. exhibiting. selling. purchasing. possessing of exchanging eny visual or print medium in which minors are in sexual conduct. B Sexual exploitation of « minor is « class 2 felony.” Ariz. Rev. Stat. Ann. $13-3553( 1984); “A person who has in possession « photographic representation of sexual conduct which involves « mi- nor, knowing or with reasons to know its content and character and thet an actor or photographic subject in it. guilty gross misdemeanor.” Minn. Stat. $617.247( 1984); “A person who knowingly and willfully hes in his possession any film, photograph or other visual pre- sentation depicting minors engaging in or simulating. or assisting others to engage in or simulate sexe conduct is guilty of a misdemeanor” Nev. Rev. Stet. 730( 1964); No person, with knowledge of the charecter of the material or performance involved, shall do any of the following: : 5 Possess «© contro! any obscene material thet has e minor as one of its participants. With purpose to violate division (A)(2) or (4) of this section.” Ohio Rev. Code Ann. $2907.321(1984). , 540. v. Meadows, No. 64 CRB 25585. Slip op. (1st Dist. Dec. 18, 1985) cert. granted (Ohio Apr. 9. 1986) (No om 541. 304 U.S., (1968), p. 55 542. Id. p. 558. 543. Id. 544. Id. pp. 5586-59. 545. Id. p. 559. 546. R.C. 2907.321(a)(5) (1985). a Ohio v. Meadows, No. 64 CRB 25585, Slip op. (ist Dist. Dec. 1 . 1985), cert. granted, (Ohio Apr. 9. 1986) (No. 233). 52 : re pile 3 549. Ohio v. Meadows, No. 64 CRB 25585, Slip. op. (ist # Dist. Dec. 18, 1985); cert. granted, (Ohio Apr. 9, 1986) No. 66-233). a aoe 47(1962). . Ohio v. Meadows, No. 64 CRB 25585, Slip. op. at @ (1st Dist., Dec. 1 6, 1985), cert. granted (Ohio Apr. 9. 1986) Id. at 7. eee (11th Cir 1985), cert. denied. 54 U.S. L.W. 3698 (U.S. Apr. 22, 1966) (No. 65-1177). Ae em the Child Protection Act provides penalties for any person who “knowingly receives or distrib- BESS SES5535) SSSEKE EEEEEEE SEs FRESE FFESFEE REQERS ER EZESFEERE aa pe ~ bos yy oe ie a ta i ae ‘(zMelzstzs ISN et ‘ot “4 ‘OnE ou csdns CLP S/8Y “Ad OOF TI 4 PewUy) “(LLSLGISE “S'1) ZOP ‘Jeprey 4 semis “5 ming) « oma po emyeonamp fonnmy, “00g “wayeyzep Aa eouepise Uodn peseq AydesBousod a) ainsode wy Gey O sJUSp\ As PUNOY Sey UO} SSTUTURO) ‘(ELOLIGEL ST) CLD ‘OMAD “4 SemIg pewur ‘(i ceLlesE ‘Sh TOF --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0536%3A10. Public record. Not legal advice.