Illegal Pornography

In response to intense public outcry and the increased availability, accessibility, and volume of child pornography on the internet, federal and state law enforcements have dramatically increased the number of child pornography investigations and prosecutions.  These cases are unusually serious due to extreme penalties allowed by recently amended laws and the complete lack of mercy the suspect often receives from law enforcement and the courts.  If you believe you are a suspect in a child pornography investigation you must contact a criminal defense lawyer immediately.  Do not speak to law enforcement investigators, no matter what they promise you. 

Most often, when law enforcement first contacts a suspect in a child pornography investigation they arrive with a search warrant allowing them to seize computers and any storage media, including CDs and external hard drives.  Any statements given to law enforcement at this point of the investigation can only further implicate the suspect.  Again, do not speak to law enforcement investigators without guidance from an experienced criminal defense lawyer.

John T. Floyd is an experienced criminal defense lawyer defending individuals accused of committing serious crimes, including possession and promotion of illegal child pornography and other sex crimes involving children.  John T. Floyd practices before all State and Federal Criminal Courts in Houston, throughout the State of Texas and the United States.

The Prosecution of Child Pornography Cases

By the mid-1980's, the trafficking of child pornography within the United States had been almost completely eradicated through a series of campaigns waged by law enforcement. Producing child abuse images was both difficult and expensive, and reproducing images was equally difficult and expensive. Purchasing and trading such images was extremely risky. Anonymous distribution and receipt was not possible.
 
Producing child abuse images has now become easy and inexpensive. The Internet allows images and digitized movies to be reproduced and disseminated to tens of thousands of individuals at the click of a button. The distribution and receipt of such images can be done almost anonymously. As a result, child pornography is readily available through virtually every Internet technology (web sites, email, instant messaging/ICQ, Internet Relay Chat (IRC), newsgroups/bulletin boards, and peer-to-peer). The technological ease, lack of expense, and anonymity in obtaining and distributing child pornography has resulted in an explosion in the availability, accessibility, and volume of child pornography.

The Child Exploitation and Obscenity Section of the US Attorney’s Office works with the 93 United States Attorney offices around the country and investigative agencies to vigorously combat this growing criminal enterprise. By maintaining a coordinated, national-level law enforcement focus, including coordinating nationwide and international investigations and prosecutions, CEOS attempts to deter the production, distribution and possession of child pornography by aggressively investigating and prosecuting of these crimes.

The Department of Justice, the Federal Bureau of Investigation, the Department of Homeland Security's U.S. Immigration and Customs Enforcement, and the Internet Crimes Against Children (ICAC) Task Forces have announced a national law enforcement initiative aimed at combating the growing volume of illegal child pornography distributed through peer-to-peer (P2P) file trafficking computer networks.
The law enforcement operation, which began in the Fall of 2003, has already resulted in the execution of hundreds of searches nationwide, and the identification of thousands of suspect computers used to access the child pornography. The FBI, ICE and the ICACs have opened more than 1,000 domestic investigations into the distribution and possession of child pornography and conducted more than a thousand searches.

Hundreds of individuals have been arrested and charged with crimes to date as a result of this law enforcement effort, with coordination by the Child Exploitation and Obscenity Section of the Criminal Division at the Department of Justice and U.S. Attorneys' Offices across the country. These cases have charged not only offenses related to the possession and distribution of child pornography, but also sexual abuse of children. Further, the investigations have identified several individuals who have previously been convicted of sex offenses and several registered sex offenders.

The multi-agency, multi-jurisdictional P2P initiative, combining the resources of federal, state and local law enforcement, is part of an ongoing effort to keep pace with emerging technologies that are being used to commit, facilitate and even hide crimes. Unlike traditional computer networks, which employ the use of a server to exchange files, peer-to-peer networks allow users to connect their computers directly to one another, without the use of a central server. Once a user installs a peer-to-peer software application on his or her computer, he or she can directly access and search the files designated for distribution on any of the computers that are using the network at that moment in time, and then download desired files to his or her computer.

Investigators and agents from the participating agencies used several techniques – including undercover work – to infiltrate the P2P networks and identify those who have distributed and taken possession of child pornography images.

The maximum federal sentence for the distribution of child pornography is 30 years in prison. The PROTECT Act, enacted on April 30, 2003, also created a mandatory minimum sentence of five years in prison for this crime. If an individual committed a prior sex abuse offense, the mandatory minimum is 15 years in prison and the statutory maximum is 40 years.

The following is a brief rundown of the roles played by various agencies in the P2P operation:

Internet Crimes Against Children Task Forces

In 1998, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) of the Department of Justice funded ICAC Task Forces in jurisdictions all over the country. There are 39 task forces comprised of more than 175 law enforcement agencies.
The 39 ICAC Task Forces conducted an undercover investigation code-named "Operation Peerless" to investigate the distribution of child pornography over the Internet. Undercover operations have identified more than 3,000 computers worldwide sharing child pornography using the P2P networks.

U.S. Immigration and Customs Enforcement, Department of Homeland Security

In September 2003, investigators at the ICE Cyber Crime Center in Virginia initiated a P2P operation known as "Operation Peer Pursuit" to target individuals who exchange child pornography images over the Internet using P2P networks.

Operation Peer Pursuit is an outgrowth of Operation Predator, ICE's comprehensive, nationwide initiative designed to protect young people from pedophiles, human traffickers and other predatory criminals. Since its inception in July 2003, Operation Predator has resulted in the arrest of more than 2,600 child sex predators nationwide.

The Federal Bureau of Investigation

As part of the FBI's P2P operation, codenamed "Peer Pressure," FBI agents and prosecutors from the Child Exploitation and Obscenity Section of the Justice Department developed a protocol for investigating the distribution of images of child pornography through P2P networks. Agents, acting in an undercover capacity, were able to successfully conduct 166 on-line sessions in P2P networks, targeting individuals who were openly offering multiple child pornography images.

 

Child Abuse, Child Pornography and Obscenity Crimes

Obscenity crimes are prosecuted under 18 U.S.C. §§ 1460 through 1469. The substantive crimes are set forth in sections 1460-1466 and 1468. Section 1467 authorizes criminal forfeiture of the obscene items, the profits or proceeds obtained from the commission of the crimes, and the property used to commit or promote the commission of the obscenity crimes.

Prosecutions involving child pornography and the sexual exploitation of children are initiated under 18 U.S.C. §§ 2251 through 2260. The substantive statutes are sections 2251, 2251A, 2252, 2252A and 2260 and the relevant definitions are set forth in section 2256. Section 2253 authorizes criminal forfeiture, and section 2254 authorizes civil forfeiture, of the items depicting child pornography, the profits or proceeds obtained from the commission of the crimes, and the property used to commit or promote the commission of the crimes. Section 2255 provides a civil remedy for victims and section 2259 provides mandatory restitution to victims. Section 2257 creates record keeping requirements for items depicting sexually explicit conduct and section 2258 creates a misdemeanor crime for failure to report child abuse.

Title 18 U.S.C. § 2251 sets forth three offenses. Subsection (a) proscribes the employment or enticement of a minor to engage in sexually explicit activity for the purpose of producing any visual depiction of such conduct. Either the visual depiction must be actually transported in interstate or foreign commerce, or mailed, or the person must know or have reason to know that it will be so transported, or the visual depiction must be produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer.

Subsection (b) prohibits any parent, legal guardian, or person having custody or control over a minor to permit such minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.

Subsection (c) penalizes anyone who makes, prints or publishes any notice or advertisement seeking or offering: (1) to receive, exchange, buy, produce, display, distribute or reproduce a visual depiction of a minor engaging in sexually explicit conduct; or (2) to participate in any act of sexually explicit conduct by or with a minor. Such person should know or have reason to know that such notice or advertisement will be transported in interstate or foreign commerce by any means, including by computer or mail.

Section 2251 imposes a mandatory minimum of 10 years' imprisonment and/or a fine to a twenty year maximum for the first offense and a minimum of 15 years' to a maximum thirty years' imprisonment together with a fine for the second offense if the offender has one prior conviction under Chapter 110, Chapter 109A, or Chapter 117, or under the laws of any state relating to the sexual exploitation of children. An offender with two or more such prior convictions faces a mandatory minimum of thirty years with a maximum sentence of life in prison.

Child Pornography

(a) Any person who -
(1) knowingly mails, or transports or ships in interstate or foreign commerce by any means, including by computer, any child pornography;

(2) knowingly receives or distributes -
(A) any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or
(B) any material that contains child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer;

(3) knowingly reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer;

(4) either -
(A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), knowingly sells or possesses with the intent to sell any child pornography; or
(B) knowingly sells or possesses with the intent to sell any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or

(5) either -
(A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography; or
(B) knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, shall be punished as provided in subsection (b).

 Punishment:  Whoever violates, or attempts or conspires to violate, paragraphs (1), (2), (3), or (4) of subsection (a) shall be fined under this title or imprisoned not more than 15 years, or both, but, if such person has a prior conviction under this chapter, chapter 109A, or chapter 117, or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 5 years nor more than 30 years.

(2) Whoever violates, or attempts or conspires to violate, subsection (a)(5) shall be fined under this title or imprisoned not more than 5 years, or both, but, if such person has a prior conviction under this chapter, chapter 109A, or chapter 117, or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 2 years nor more than 10 years.

(c) It shall be an affirmative defense to a charge of violating paragraphs(1), (2), (3), or (4) of subsection (a) that –

(1) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct;

(2) each such person was an adult at the time the material was produced; and

(3) the defendant did not advertise, promote, present, describe, or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor engaging in sexually explicit conduct.

(d) Affirmative Defense. - It shall be an affirmative defense to a charge of violating subsection (a)(5) that the defendant –

(1) possessed less than three images of child pornography; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof -
(A) took reasonable steps to destroy each such image; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such image.

Sexual Abuse:

Sexual abuse crimes are prosecuted under 18 U.S.C. §§ 2241 through 2248. The age of the victim and whether force was used are two important facts that help determine the appropriate statute and punishment. Section 2247 increases the maximum penalties for repeat offenders and section 2248 mandates restitution to the victims.

Crimes involving the transportation of individuals for illegal sexual activities are governed by 18 U.S.C. §§ 2421 through 2423. Section 2424 creates reporting requirements for individuals operating homes or other places for prostitution or related activities. Section 2425 addresses the use of interstate facilities to transmit information about a minor. Section 2426 provides that the maximum term of imprisonment for a violation of a Chapter 117 crime after a prior sex offenses conviction shall be two times the term otherwise specified. Finally, Section 2427 includes the production of child pornography in the definition of "sexual activity for which any person can be charged with a criminal offense" in travel cases.

Section 1305 of Title 19 prohibits the importation of obscene items and authorizes the seizure and forfeiture of such items. Sections 3008 and 3010 of Title 39 impose requirements on how and to whom sexually oriented advertisements may be mailed. Individuals who violate these requirements may be prosecuted under 18 U.S.C. §§ 1735 and 1737. Section 223 of Title 47 prohibits, in certain situations, obscene or indecent telephone calls.

RICO Prosecutions

Title 18, United States Code, sections 1461 to 1465 (relating to obscene material), sections 2251, 2251A, 2252, and 2260 (relating to sexual exploitation of children) and sections 2421 to 2424 (relating to prostitution and white slave traffic) are predicate offenses for violation of the RICO statutes, 18 U.S.C. §§ 1961 to 1969. See 18 U.S.C. § 1961(l).

General Prosecution Policies and Priorities

Prosecution of all crimes involving the sexual abuse or sexual exploitation of children and the distribution of child pornography is strongly encouraged by the Department of Justice. The DOJ believes that many individuals who produce, import or consensually exchange child pornography do so repeatedly and with full knowledge that it is illegal to do so. In addition, the DOJ believes many of these individuals engage in child sexual abuse or would like to do so, given the right opportunity. Finally, it is argued many people use child pornography to encourage their child victims to engage in sexual activity. In evaluating such cases, prosecutors consider, inter alia, characteristics of the material, such as the age of the involved child, the type of conduct depicted, the number of involved children, the quantity of the involved material, whether violence or force is used against the child, and characteristics of the target, such as whether the target currently is engaging in sexual activity with children, whether the target is the parent or guardian, or is in a position of trust with the depicted children, whether the target has shown the material to children, whether the target is making money from the conduct, whether the target has committed any prior offenses involving child sexual abuse or exploitation, and the safety of the community.

Prosecution of large scale distributors of obscene material who realize substantial income from their multi-state operations also is encouraged. Prosecution priority is given to cases in which there is evidence of involvement by known organized crime figures. However, prosecution of cases involving relatively small distributors is also common because the government believes it to have a deterrent effect and dispels any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations.  In evaluating obscenity cases, substantial consideration should be given to the determination of the viability of the case based upon the factors set forth in Miller v. California, 413 U.S. 15 (1973). Under the legal test of obscenity set forth in that case, material is obscene if, taken as a whole, the average person in the community would find that the material appeals to the prurient interest of its intended audience, depicts sexual conduct in a patently offensive way, and a reasonable person would find the material, taken as a whole, lacks serious literary, artistic, political or scientific value.

Use of a Computer to Commit Child Pornography Crimes

Title 18, United States Code, Section 2252 prohibits, among other things, the interstate distribution of visual depictions of a child engaged in sexually explicit conduct. This statute is applicable regardless of the method of distribution (via mail, shipping, computer, etc.) but it requires that a real child be involved in the production of the sexually explicit depiction. Improved computer technology, such as "morphing," has created a potential defense to section 2252 crimes. Morphing is the term given to the ability to use a computer to change or create an image from another image. An example of morphing is taking a computer image depicting adult pornography and using a computer and specific types of software to change the faces and bodies of the participants so that they appear to depict children.

To address this and other problems, Congress passed the Child Pornography Prevention Act of 1996, which became effective September 30, 1996. This Act created a new crime, 18 U.S.C. § 2252A, that incorporates an expanded definition of prohibited material by using the term "child pornography." The Act also created "child pornography" definitions, 18 U.S.C. § 2256(8) and (9), that eliminate the requirement that a real child be involved in the production of the visual depiction. The constitutionality of the new statute, including the "child pornography" definitions, is being challenged in jurisdictions throughout the nation.

Telecommunications

Title 47 U.S.C. § 223 makes it a Federal offense for any person in interstate or foreign communication by means of a telecommunication device to knowingly make, create or solicit and initiate transmission of any communication which is obscene, lewd, or indecent. This section was amended by the Communications Decency Act of 1996 (CDA). The indecency part of the Act was challenged, and on June 26, 1997, the United States Supreme Court held that the CDA's "indecent transmission" and "patently offensively display" provisions under Sections 223(a)(1)(B) and (a)(2) and 223(d) abridge the freedom of speech protected by the First Amendment. Reno v. ACLU, 521 U.S. 824 (1997). On July 30, 1997, the United States District Court in Philadelphia signed a final order permanently enjoining the Attorney General, the Department of Justice, and all acting under the Attorney General's discretion and control, from enforcing, prosecuting, investigating, or reviewing any matter premised upon "indecent communications." The Department, however, is not enjoined from enforcing, prosecuting, investigating, or reviewing allegations of violations of the Section based on prohibited obscenity or child pornography.

This section was also amended by the Child Online Protection Act of 1998 which was intended to restrict the dissemination of "obscene" or "harmful to minors" materials over the World Wide Web and provided for civil and criminal penalties. This statute was likewise challenged in ACLU et al. v. Janet Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999). The court has entered a stay of proceedings in the case pending the appeal of the preliminary injunction entered by the court.

Multiple District Investigations and Prosecutions

Multiple district investigations are investigations in which either (1) the target conducts his, her or its business, or commits the charged crimes, in more than one district or (2) there are multiple targets who may be located in different districts.

An example of the first type of investigation is an individual or company that sells or distributes child pornography or obscene material nationwide and, therefore, is subject to prosecution in every district where a customer is located.  In deciding in which district(s) to initiate charges, the following factors should be considered: (1) where the most serious offense was committed, (2) where the most harm was caused, (3) residence of witnesses, (4) residences of victims, (5) location of evidence, and (6) applicable law.

An example of the second type of investigation is an investigation involving computer crimes being committed over the Internet, where the targets (those distributing and receiving the child pornography or obscene material) may be located in many different districts

 

Sexual Abuse -- 18 U.S.C. §§ 2241 et seq.

The primary federal statutes concerning sexual abuse are in Chapter 109A, 18 U.S.C. §§ 2241 to 2245.

9-75.300 Transportation for Illegal Sexual Activity and Related Crimes -- 18 U.S.C. §§ 2421 et seq.

Section 2421 of Title 18 prohibits anyone from knowingly transporting an individual in interstate or foreign commerce with the intent that the individual engage in prostitution or any criminal sexual activity, or attempts to do so, and imposes a maximum punishment of ten years' imprisonment and/or a fine under Title 18.

Obscenity/Sexual Exploitation -- Venue

Cases under the obscenity and child pornography statutes in which the proscribed item is mailed may be prosecuted in the district where the material is mailed or deposited with a facility of interstate commerce, the district of receipt, or any intermediate district through which the material passes. See 18 U.S.C. § 3237. In cases where there are complaints by postal patrons about the unsolicited receipt of child pornography or obscene material, the district of receipt would appear to be the appropriate choice of venue. On the other hand, in cases involving numerous mailings by a distributor into various districts, the district of origin may be the appropriate venue for the case. Furthermore, if a case is to be based solely upon test purchases by postal inspectors, it may be venued in the district of receipt where the government has some information showing that there were prior mailings into the recipient districts by the individual involved. Prosecutions should not be brought in jurisdictions through which obscene material passes in transit except in unusual circumstances.

Cases under the child pornography and obscenity statutes in which the crime was committed via computer may be prosecuted in the district where the defendant committed any of the acts proscribed in the statutes. In general, in cases in which the crime was committed via the computer, all of the charges distribution, receipt, possession, etc.) should be brought in the district in which the target and his computer are located. Multiple prosecutions generally are discouraged.

Obscenity/Sexual Exploitation -- Federal-State Relations
 
Federal prosecution of obscenity and child pornography cases should focus upon producers and interstate distributors. However, cases involving straight possession may warrant federal prosecution and production and distribution cases may be more appropriately prosecuted in state court. Moreover, many cases include both federal charges (such as distribution of pornography) and local charges (such as sexual abuse). Hence, cooperation between federal and local officers and prosecutors is strongly encouraged and can be highly productive in both federal and local efforts. See Fed. R. Cr. P. 6(e). The formation of multi-agency and multi-jurisdictional task forces is strongly encouraged.

Obscenity/Sexual Exploitation -- Forfeiture, Restitution, and Civil Remedies

Statutes within the child sexual exploitation and obscenity chapters authorize the criminal forfeiture of any property (1) depicting child pornography or obscene material, (2) constituting or derived from proceeds obtained from a child pornography obscenity crime or (3) used, or intended to be used, to commit such an offense. 18 U.S.C. §§ 1465, 2253.
Section 2254 permits seizure and civil forfeiture, according to the pertinent customs laws pertaining to civil forfeiture (see 19 U.S.C. §§ 1600 et seq.), of: (1) equipment used, or intended to be used, in producing, reproducing, transporting, shipping or receiving child pornography or any property used to facilitate such a violation; (2) any child pornography or material containing child pornography; and (3) any property constituting, or derived from, profits or proceeds obtained from a violation of the child pornography laws.
Section 2248 mandates that restitution to sexual abuse victims be imposed upon conviction of violations of sections 2241-2244. Section 2259 mandates the same restitution be made to child pornography or child exploitation victims upon conviction of violations of 18 U.S.C. §§ 2251, 2251A, 2252, 2252A and 2260. Both restitution orders may be enforced by either the government or a victim.

Section 2255 of Title 18 permits a minor victim of a section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 violation to sue for actual damages in any appropriate United States District Court. Sustained damages are deemed to be no less than $50,000.

Penalties

Title 18 U.S.C. § 2252A(a)(1)-(a)(4)
 
First offense - a violation of paragraphs 1-4 of subsection (a), prohibiting the knowing mailing, transporting or shipping, receiving, distributing, reproducing for distribution, or possessing with intent to sell or selling on government land of child pornography, is punishable by up to 15 years in prison.

Subsequent offense - a violation of paragraphs 1-4 by a person with a prior conviction under chapter 110 or 109A, or under the laws of any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the trafficking in child pornography incurs a minimum five years' incarceration with a thirty year maximum.

Title 18 U.S.C. § 2252A(a)(5)
First offense - Possessory offenses under section 2252A(a)(5) have a five year statutory maximum for a first offense.

Subsequent offense - two year mandatory minimum with ten year statutory maximum if the offender has a prior offense as set forth above.

Title 18 U.S.C. § 2251(d)

First offense - mandatory minimum sentence of ten years with a twenty year maximum for production of child pornography offenses.

Second offense - If the offender has one prior conviction for under chapter 110 or chapter 109A, or under the laws of any state relating to the sexual exploitation of children, the mandatory minimum is raised to fifteen years with a maximum sentence of thirty years.

Subsequent offense - An offender with two or more such prior convictions faces a mandatory minimum of thirty years with a maximum sentence of life in prison.

Title 18 U.S.C. § 2252(a)(1)-(a)(3)

First offense - a violation of paragraphs 1-3 of subsection (a), prohibiting the knowing mailing, transporting or shipping, receiving, distributing, reproducing for distribution, or possessing with intent to sell or selling on government land of visual depictions of minors engaged in sexually explicit conduct, is punishable by up to 15 years in prison.

Subsequent offense - a violation of paragraphs 1-3 by a person with a prior conviction under chapter 110 or 109A, or under the laws of any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the trafficking in child pornography incurs a minimum five years' incarceration with a thirty year maximum.

Title 18 U.S.C. § 2252(a)(4)

First offense - possessory offenses under section 2252(a)(4) have a five year statutory maximum for a first offense.

Subsequent offense - two year mandatory minimum with ten year statutory maximum if the offender has a prior offense as set forth above.

Title 18 U.S.C. § 2241(c)

Subsection 7, the Amber Hagerman Child Protection Act, creates a new § 2241(c) by adding the offenses of crossing a state line with intent to engage in a sexual act with a person under 12, which is also an offense under 18 U.S.C. § 2423(b), and aggravated sexual abuse of a person between the ages of twelve and sixteen by anyone more than four years older than the victim.

First offense - punishable by any term of years or life.

Subsequent offense - a violation of subsection (c) by a person that has previously been convicted of another federal offense under this subsection, or of a state offense that would have been an offense under either such provision had the offense occurred in a federal prison, unless the death penalty is imposed, shall be sentenced to life in prison.

Department of Justice Recommendations for Charging -If the minor is under age 12 and the travel is domestic, 18 U.S.C. § 2241(c) should now be used; if the minor is over age 12, or if the travel was across international, and not state lines, 18 U.S.C. § 2423(b) is the appropriate statute. 18 U.S.C. § 2241(c) should be used if the conditions warrant the charge of aggravated sexual assault; if those conditions are not present, and the victim is between ages 12-16, and the offender is more than four years older, then 18 U.S.C. § 2243(a) should be used.

The Act also amends Title 18 U.S.C. § 2243(a), which prohibits knowing sexual activity with a minor under 12 years of age in the special maritime and territorial jurisdiction of the United States. This prohibition now extends to crossing a state line with intent to engage in sexual activity with a minor under 12 years of age; this offense is also included in 18 U.S.C. § 2423(b), but here is restricted by age of the victim and solely domestic travel. This amendment appears to duplicate the offense added in § 2241(c).

 

 

 

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