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Copr. © West 2000 No Claim to Orig. U.S. Govt. Works
18 USCA s 2257
18 U.S.C.A. § 2257
UNITED STATES CODE ANNOTATED
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I‑‑CRIMES
CHAPTER 110‑‑SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN
Copr. © West Group 2000. No claim to
orig. U.S. Govt. Works
Current through P.L. 106‑213, approved 5‑26‑2000
§ 2257. Record keeping requirements
(a) Whoever produces any book, magazine, periodical, film, videotape,
or other matter which‑‑
(1) contains one or more visual depictions made after November 1,
1990 of actual sexually explicit conduct; and
(2) is produced in whole or in part with materials which have been
mailed or shipped in interstate or foreign commerce, or is shipped or transported
or is intended for shipment or transportation in interstate or foreign commerce;
shall create and maintain individually identifiable records pertaining to
every performer portrayed in such a visual depiction.
(b) Any person to whom subsection (a) applies shall, with respect to
every performer portrayed in a visual depiction of actual sexually explicit
conduct‑‑
(1) ascertain, by examination of an identification document containing
such information, the performer's name and date of birth, and require the
performer to provide such other indicia of his or her identity as may be
prescribed by regulations;
(2) ascertain any name, other than the performer's present and correct
name, ever used by the performer including maiden name, alias, nickname,
stage, or professional name; and
(3) record in the records required by subsection (a) the information
required by paragraphs (1) and (2) of this subsection and such other identifying
information as may be prescribed by regulation.
(c) Any person to whom subsection (a) applies shall maintain the records
required by this section at his business premises, or at such other place
as the Attorney General may by regulation prescribe and shall make such records
available to the Attorney General for inspection at all reasonable times.
(d)(1) No information or evidence obtained from records required to
be created or maintained by this section shall, except as provided in this
section, directly or indirectly, be used as evidence against any person with
respect to any violation of law.
(2) Paragraph (1) of this subsection shall not preclude the use of
such information or evidence in a prosecution or other action for a violation
of this section or for a violation of any applicable provision of law with
respect to the furnishing of false information.
(e)(1) Any person to whom subsection (a) applies shall cause to be
affixed to every copy of any matter described in paragraph (1) of subsection
(a) of this section, in such manner and in such form as the Attorney General
shall by regulations prescribe, a statement describing where the records
required by this section with respect to all performers depicted in that
copy of the matter may be located.
(2) If the person to whom subsection (a) of this section applies is
an organization the statement required by this subsection shall include the
name, title, and business address of the individual employed by such organization
responsible for maintaining the records required by this section.
(f) It shall be unlawful‑‑
(1) for any person to whom subsection (a) applies to fail to create
or maintain the records as required by subsections (a) and (c) or by any
regulation promulgated under this section;
(2) for any person to whom subsection (a) applies knowingly to make
any false entry in or knowingly to fail to make an appropriate entry
in, any record required by subsection (b) of this section or any regulation
promulgated under this section;
(3) for any person to whom subsection (a) applies knowingly to fail
to comply with the provisions of subsection (e) or any regulation promulgated
pursuant to that subsection; and
(4) for any person knowingly to sell or otherwise transfer, or offer
for sale or transfer, any book, magazine, periodical, film, video, or other
matter, produce in whole or in part with materials which have been mailed
or shipped in interstate or foreign commerce or which is intended for shipment
in interstate or foreign commerce, which‑‑
(A) contains one or more visual depictions made after the effective
date of this subsection of actual sexually explicit conduct; and
(B) is produced in whole or in part with materials which have
been mailed or shipped in interstate or foreign commerce, or is shipped or
transported or is intended for shipment or transportation in interstate or
foreign commerce;
which does not have affixed thereto, in a manner prescribed as set
forth in subsection (e)(1), a statement describing where the records required
by this section may be located, but such person shall have no duty to determined
the accuracy of the contents of the statement or the records
required to be kept.
(g) The Attorney General shall issue appropriate regulations to carry
out this section.
(h) As used in this section‑‑
(1) the term "actual sexually explicit conduct" means actual but not
simulated conduct as defined in subparagraphs (A) through (D) of paragraph
(2) of section 2256 of this title;
(2) "identification document" has the meaning given that term in section
1028(d) of this title;
(3) the term "produces" means to produce, manufacture, or publish
any book, magazine, periodical, film, video tape or other similar matter
and includes the duplication, reproduction, or reissuing of any such matter,
but does not include mere distribution or any other activity which does not
involve hiring, contracting for managing, or otherwise arranging for the
participation of the performers depicted; and
(4) the term "performer" includes any person portrayed in a visual
depiction engaging in, or assisting another person to engage in, actual sexually
explicit conduct.
(i) Whoever violates this section shall be imprisoned for not more
than 2 years, and fined in accordance with the provisions of this title,
or both. Whoever violates this section after having been convicted of a violation
punishable under this section shall be imprisoned for any period of years
not more than 5 years but not less than 2 years, and fined in accordance
with the provisions of this title, or both.
CREDIT(S)
2000 Main Volume
(Added Pub.L. 100‑690, Title VII, § 7513(a), Nov. 18, 1988, 102 Stat.
4487, and amended Pub.L. 101‑647, Title III, §§ 301(b), 311, Nov.
29, 1990, 104 Stat. 4808; Pub.L. 103‑322, Title XXXIII, § 330004(14),
Sept. 13, 1994, 108 Stat. 2142.)
<General Materials (GM) ‑ References, Annotations, or Tables>
HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports
1988 Acts. For Related Reports, see 1988 U.S. Code Cong. and Adm. News,
p. 5937.
1990 Acts. House Report Nos. 101‑681(Parts I and II) and 101‑736, Senate
Report No. 101‑460, and Statement by President, see 1990 U.S. Code Cong.
and Adm. News, p. 6472.
1994 Acts. House Report Nos. 103‑324 and 103‑489, and House Conference
Report No. 103‑711, see 1994 U.S. Code Cong. and Adm. News, p. 1801.
Amendments
1994 Amendments. Subsecs. (f), (g). Pub.L. 103‑322, § 330004(14),
struck out the subsections (f) and (g), relating to regulations and definitions,
which had been enacted as part of the original enactment of this section
by Pub.L. 100‑690 in 1988. Amendment served to correct the results
of an error in directory language of section 311 of Pub.L. 101‑647 which
had moved the existing subsecs. (f) and (g) to the end of the section by
adding new subsecs. (f) through (i) to follow subsec. (e) without deleting
such existing subsecs. (f) and (g).
1990 Amendments. Subsec. (a)(1). Pub.L. 101‑647, § 301(b),
substituted "November 1, 1990" for "February 6, 1978".
Subsec. (d). Pub.L. 101‑647, § 311, substituted in par.
(1) "in this section" for "paragraphs (2) and (3)" and struck out par. (3),
which provided that in a prosecution for violation of section 2251(a), a
required element of which is establishment of a performer as a minor, proof
of violation of subsecs. (a), (b), or (e) raises a rebuttable presumption
that such performer was a minor.
Subsec. (e)(3). Pub.L. 101‑647, § 311, struck out par. (3),
which provided that in a prosecution for violation of section 2252 of this
title, a required element of which is establishment of a performer as a minor,
proof that the matter in which the visual depiction is contained did not
contain the statement required by this section raises a rebuttable presumption
that such performer was a minor.
Subsecs. (f) to (i). Pub.L. 101‑647, § 311, added subsecs.
(f) to (i).
Effective and Applicability Provisions
1990 Acts. Section 312 of Pub.L. 101‑647 provided that: "Subsections
(d), (f), (g), (h), and (i) of section 2257 of title 18, United States
Code, as added by this title shall take effect 90 days after the date of
the enactment of this Act [Nov. 29, 1990] except‑‑
"(1) the Attorney General shall prepare the initial set of regulations
required or authorized by subsections (d), (f), (g), (h), and (i) of section
2257 within 60 days of the date of the enactment of this Act; and
"(2) subsection (e) of section 2257 and of any regulation issued pursuant
thereto shall take effect 90 days after the date of the enactment of this
Act."
1988 Acts. Section 7513(c) of Pub.L. 100‑690 provided that: "Section
2257 of title 18, United States Code, as added by this section [this section]
shall take effect 180 days after the date of the enactment of this Act [Nov.
18, 1988] except‑‑
"(1) the Attorney General shall prepare the initial set of regulations
required or authorized by section 2257 [this section] within 90 days of the
date of the enactment of this Act [Nov. 18, 1988]; and
"(2) subsection (e) of section 2257 of such title [subsec. (e) of this
section] and of any regulation issued pursuant thereto shall take effect
270 days after the date of the enactment of this Act [Nov. 18, 1988]."
FEDERAL SENTENCING GUIDELINES
See Federal Sentencing Guidelines § 2G2.5, 18 USCA.
LIBRARY REFERENCES
American Digest System
Obscenity k2.5, 5.
Key Number System Topic No. 281.
Encyclopedias
Obscenity, see C.J.S. §§ 3 to 7, 10, 13‑19.
NOTES OF DECISIONS
Constitutionality 1
Purpose 2
Regulations 3
1. Constitutionality
Child Protection Restoration and Penalties Enhancement Act was not
impermissible over broad as applied to publisher of "swingers" magazine and
its readers and advertisers; although majority of publisher's readership
might not be object of the Act's focus, allowance of exceptions to disclosure
requirements, presumably based on subjective determination by publisher as
to a subscriber's age, would not promote the Act's goal of eliminating use
of minors in pornography. Connection Distributing Co. v. Reno, C.A.6
(Ohio) 1998, 154 F.3d 281, rehearing and suggestion for rehearing en banc
denied, certiorari denied 119 S.Ct. 1496, 143 L.Ed.2d 650.
Requirement of record‑keeping and disclosure provisions of Child Protection
and Obscenity Enforcement Act that producer ascertain any name ever used
by performer is not unconstitutionally onerous as interpreted to merely require
that producer record every name supplied by performer in response to request.
American Library Assistant v. Reno, C.A.D.C.1994, 33 F.3d 78, 308 U.S.App.D.C.
233, rehearing denied, suggestion for rehearing denied 47 F.3d 1215, 310
U.S.App.D.C. 341, certiorari denied 115 S.Ct. 2610, 515 U.S. 1158, 132 L.Ed.2d
854.
2. Purpose
Congressional purpose in enacting record‑keeping and disclosure requirements
of Child Protection and Obscenity Enforcement Act is to prevent exploitation
of children by requiring those responsible for videotaping sexually explicit
acts to secure proof of performer's age and keep a record of it, to deprive
child pornographers of access to commercial markets by requiring secondary
producers to inspect the proof, and to establish system whereby law enforcement
officers can identify performers and verify compliance with the Act.
American Library Assistant v. Reno, C.A.D.C.1994, 33 F.3d 78, 308 U.S.App.D.C.
233, rehearing denied, suggestion for rehearing denied 47 F.3d 1215, 310
U.S.App.D.C. 341, certiorari denied 115 S.Ct. 2610, 515 U.S. 1158, 132 L.Ed.2d
854.
3. Regulations
Regulation implementing Child Protection and Obscenity Enforcement
Act was invalid to the extent that its definition of "producer," establishing
those persons subject to Act's record keeping requirements, failed to exclude
those not involved in hiring, contracting for, managing, or otherwise arranging
for participation of performers depicted in sexually explicit material, as
required by statute, by restricting exclusion to those not qualifying as
primary or secondary producers. Sundance Associates, Inc. v. Reno,
C.A.10 (Colo.) 1998, 139 F.3d 804.
18 U.S.C.A. § 2257
18 USCA § 2257
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