Criminal Law Update May 20, 2008

Article 4

United States Supreme Court upholds law that criminalizes the pandering or solicitation of child pornography-regardless of whether it is "actual" child pornography-05/19/08

The statute in question read as follows:

18 U. S. C. §2252A to add a new pandering and solicitation provision, relevant por­tions of which now read as follows:

"(a) Any person who- "(3) knowingly-

. . . . . "(B) advertises, promotes, presents, distributes, or so­licits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that re­flects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains- "(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or "(ii) a visual depiction of an actual minor engaging in sexually explicit conduct,

. . . . . "shall be punished as provided in subsection (b)." §2252A(a)(3)(B) (2000 ed., Supp. V).

Section 2256(2)(A) defines "sexually explicit conduct" as

"actual or simulated- "(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; "(ii) bestiality; "(iii) masturbation; "(iv) sadistic or masochistic abuse; or "(v) lascivious exhibition of the genitals or pubic area of any person."

Justice Scalia compared the statute to other statues that prohibit the solicitation, conspiracy, or attempt (inchoate, "incomplete" crimes) of the distribution of contraband. For example, several years ago local law enforcement believed they were selling actual heroin on "reverse" stings to buyers and then charging them with the purchase of heroin. However, it turned out that the "heroin" seized in South Florida was not in fact heroin. Several charges had to be amended to "attempted purchase" from "purchase" of heroin. It was still a crime to intend to purchase the contraband even though there was no real contraband for sale. The same would be true of a drug dealer selling what he believed to be heroin, but was not heroin-he could be charged with attempted delivery. There is also a Florida statute which prohibits intentionally selling something as a controlled substance knowing that it is not. Here is where the federal statute in question differs from the Florida laws regarding selling "fake" drugs. Offering to distribute, or soliciting someone to distribute "fake" (adult actors pretending to be children) or "virtual" (computer generated or altered) child pornography is legal-so long as it is being offered or solicited as "fake" or "virtual" pornography.

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