 
Age analysis of the PROTECT Act
Compiled by Marshall Burns, Ph.D. Additional background for Age Analysis of Recent US Sex Laws This file is modified from the official online text of the law by highlighting words that indicate the age of a person, to wit: “child,” “minor,” “juvenile,” “teen,” “age,” “old,” and “18,” “17,” “16,” … “10.” [DOCID: f:publ021.108]
[[Page 649]]
PROSECUTORIAL REMEDIES AND OTHER TOOLS TO END THE EXPLOITATION OF
CHILDREN TODAY ACT OF 2003
[[Page 117 STAT. 650]]
Public Law 108-21
108th Congress
An Act
To prevent child abduction and the sexual exploitation of children, and
for other purposes. <<NOTE: Apr. 30, 2003 - [S. 151]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <<NOTE: Prosecutorial Remedies and
Other Tools to end the Exploitation of Children Today Act of 2003. 18
USC 1 note.>> assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Prosecutorial
Remedies and Other Tools to end the Exploitation of Children Today Act
of 2003'' or ``PROTECT Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Severability.
TITLE I--SANCTIONS AND OFFENSES
Sec. 101. Supervised release term for sex offenders.
Sec. 102. First degree murder for child abuse and child torture murders.
Sec. 103. Sexual abuse penalties.
Sec. 104. Stronger penalties against kidnapping.
Sec. 105. Penalties against sex tourism.
Sec. 106. Two strikes you're out.
Sec. 107. Attempt liability for international parental kidnapping.
Sec. 108. Pilot program for national criminal history background checks
and feasibility study.
TITLE II--INVESTIGATIONS AND PROSECUTIONS
Sec. 201. Interceptions of communications in investigations of sex
offenses.
Sec. 202. No statute of limitations for child abduction and sex crimes.
Sec. 203. No pretrial release for those who rape or kidnap children.
Sec. 204. Suzanne's law.
TITLE III--PUBLIC OUTREACH
Subtitle A--AMBER Alert
Sec. 301. National coordination of AMBER alert communications network.
Sec. 302. Minimum standards for issuance and dissemination of alerts
through AMBER alert communications network.
Sec. 303. Grant program for notification and communications systems
along highways for recovery of abducted children.
Sec. 304. Grant program for support of AMBER alert communications plans.
Sec. 305. Limitation on liability.
Subtitle B--National Center for Missing and Exploited Children
Sec. 321. Increased support.
Sec. 322. Forensic and investigative support of missing and exploited
children.
Sec. 323. Creation of cyber tipline.
Subtitle C--Sex Offender Apprehension Program
Sec. 341. Authorization.
Subtitle D--Missing Children Procedures in Public Buildings
Sec. 361. Short title.
[[Page 117 STAT. 651]]
Sec. 362. Definitions.
Sec. 363. Procedures in public buildings regarding a missing or lost
child.
Subtitle E--Child Advocacy Center Grants
Sec. 381. Information and documentation required by Attorney General
under Victims of Child Abuse Act of 1990.
TITLE IV--SENTENCING REFORM
Sec. 401. Sentencing reform.
TITLE V--OBSCENITY AND PORNOGRAPHY
Subtitle A--Child Obscenity and Pornography Prevention
Sec. 501. Findings.
Sec. 502. Improvements to prohibition on virtual child pornography.
Sec. 503. Certain activities relating to material constituting or
containing child pornography.
Sec. 504. Obscene child pornography.
Sec. 505. Admissibility of evidence.
Sec. 506. Extraterritorial production of child pornography for
distribution in the United States.
Sec. 507. Strengthening enhanced penalties for repeat offenders.
Sec. 508. Service provider reporting of child pornography and related
information.
Sec. 509. Investigative authority relating to child pornography.
Sec. 510. Civil remedies.
Sec. 511. Recordkeeping requirements.
Sec. 512. Sentencing enhancements for interstate travel to engage in
sexual act with a juvenile.
Sec. 513. Miscellaneous provisions.
Subtitle B--Truth in Domain Names
Sec. 521. Misleading domain names on the Internet.
TITLE VI--MISCELLANEOUS PROVISIONS
Sec. 601. Penalties for use of minors in crimes of violence.
Sec. 602. Sense of Congress.
Sec. 603. Communications Decency Act of 1996.
Sec. 604. Internet availability of information concerning registered sex
offenders.
Sec. 605. Registration of child pornographers in the national sex
offender registry.
Sec. 606. Grants to States for costs of compliance with new sex offender
registry requirements.
Sec. 607. Safe ID Act.
Sec. 608. Illicit Drug Anti-Proliferation Act.
Sec. 609. Definition of vehicle.
Sec. 610. Authorization of John Doe DNA indictments.
Sec. 611. Transitional housing assistance grants for child victims of
domestic violence, stalking, or sexual assault.
SEC. 2. <<NOTE: 18 USC 1 note.>> SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person or circumstance, is held invalid, the remainder of this
Act, and the application of such provision to other persons not
similarly situated or to other circumstances, shall not be affected by
such invalidation.
TITLE I--SANCTIONS AND OFFENSES
SEC. 101. SUPERVISED RELEASE TERM FOR SEX OFFENDERS.
Section 3583 of title 18, United States Code, is amended--
(1) in subsection (e)(3), by inserting ``on any such
revocation'' after ``required to serve'';
(2) in subsection (h), by striking ``that is less than the
maximum term of imprisonment authorized under subsection
(e)(3)''; and
(3) by adding at the end the following:
[[Page 117 STAT. 652]]
``(k) Notwithstanding subsection (b), the authorized term of
supervised release for any offense under section 1201 involving a minor
victim, and for any offense under section 1591, 2241, 2242, 2244(a)(1),
2244(a)(2), 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, 2423, or 2425,
is any term of years or life.''.
SEC. 102. FIRST DEGREE MURDER FOR CHILD ABUSE AND CHILD TORTURE
MURDERS.
Section 1111 of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by inserting ``child abuse,'' after ``sexual
abuse,''; and
(B) by inserting ``or perpetrated as part of a
pattern or practice of assault or torture against a
child or children;'' after ``robbery;''; and
(2) by inserting at the end the following:
``(c) For purposes of this section--
``(1) the term `assault' has the same meaning as given that
term in section 113;
``(2) the term `child' means a person who has not attained
the age of 18 years and is--
``(A) under the perpetrator's care or control; or
``(B) at least six years younger than the
perpetrator;
``(3) the term `child abuse' means intentionally or
knowingly causing death or serious bodily injury to a child;
``(4) the term `pattern or practice of assault or torture'
means assault or torture engaged in on at least two occasions;
``(5) the term `serious bodily injury' has the meaning set
forth in section 1365; and
``(6) the term `torture' means conduct, whether or not
committed under the color of law, that otherwise satisfies the
definition set forth in section 2340(1).''.
SEC. 103. SEXUAL ABUSE PENALTIES.
(a) Maximum Penalty Increases.--(1) Chapter 110 of title 18, United
States Code, is amended--
(A) in section 2251(d)--
(i) by striking ``20'' and inserting ``30''; and
(ii) by striking ``30'' the first place it appears
and inserting ``50'';
(B) in section 2252(b)(1)--
(i) by striking ``15'' and inserting ``20''; and
(ii) by striking ``30'' and inserting ``40'';
(C) in section 2252(b)(2)--
(i) by striking ``5'' and inserting ``10''; and
(ii) by striking ``10'' and inserting ``20'';
(D) in section 2252A(b)(1)--
(i) by striking ``15'' and inserting ``20''; and
(ii) by striking ``30'' and inserting ``40''; and
(E) in section 2252A(b)(2)--
(i) by striking ``5'' and inserting ``10''; and
(ii) by striking ``10'' and inserting ``20''.
(2) Chapter 117 of title 18, United States Code, is amended--
(A) in section 2422(a), by striking ``10'' and inserting
``20'';
(B) in section 2422(b), by striking ``15'' and inserting
``30''; and
(C) in section 2423(a), by striking ``15'' and inserting
``30''.
[[Page 117 STAT. 653]]
(3) Section 1591(b)(2) of title 18, United States Code, is amended
by striking ``20'' and inserting ``40''.
(b) Minimum Penalty Increases.--(1) Chapter 110 of title 18, United
States Code, is amended--
(A) in section 2251(d)--
(i) by striking ``or imprisoned not less than 10''
and inserting ``and imprisoned not less than 15'';
(ii) by striking ``and both,'';
(iii) by striking ``15'' and inserting ``25''; and
(iv) by striking ``30'' the second place it appears
and inserting ``35'';
(B) in section 2251A (a) and (b), by striking ``20'' and
inserting ``30'';
(C) in section 2252(b)(1)--
(i) by striking ``or imprisoned'' and inserting
``and imprisoned not less than 5 years and'';
(ii) by striking ``or both,''; and
(iii) by striking ``5'' and inserting ``15'';
(D) in section 2252(b)(2), by striking ``2'' and inserting
``10'';
(E) in section 2252A(b)(1)--
(i) by striking ``or imprisoned'' and inserting
``and imprisoned not less than 5 years and'';
(ii) by striking ``or both,''; and
(iii) by striking ``5'' and inserting ``15''; and
(F) in section 2252A(b)(2), by striking ``2'' and inserting
``10''.
(2) Chapter 117 of title 18, United States Code, is amended--
(A) in section 2422(b)--
(i) by striking ``, imprisoned'' and inserting ``and
imprisoned not less than 5 years and''; and
(ii) by striking ``, or both''; and
(B) in section 2423(a)--
(i) by striking ``, imprisoned'' and inserting ``and
imprisoned not less than 5 years and''; and
(ii) by striking ``, or both''.
SEC. 104. STRONGER PENALTIES AGAINST KIDNAPPING.
(a) Sentencing Guidelines.--Notwithstanding <<NOTE: Effective
date. 28 USC 994 note.>> any other provision of law regarding the
amendment of Sentencing Guidelines, the United States Sentencing
Commission is directed to amend the Sentencing Guidelines, to take
effect on the date that is 30 days after the date of the enactment of
this Act--
(1) so that the base offense level for kidnapping in section
2A4.1(a) is increased from level 24 to level 32;
(2) so as to delete section 2A4.1(b)(4)(C); and
(3) so that the increase provided by section 2A4.1(b)(5) is
6 levels instead of 3.
(b) Minimum Mandatory Sentence.--Section 1201(g) of title 18, United
States Code, is amended by striking ``shall be subject to paragraph
(2)'' in paragraph (1) and all that follows through paragraph (2) and
inserting ``shall include imprisonment for not less than 20 years.''.
SEC. 105. PENALTIES AGAINST SEX TOURISM.
(a) In General.--Section 2423 of title 18, United States Code, is
amended by striking subsection (b) and inserting the following:
[[Page 117 STAT. 654]]
``(b) Travel With Intent To Engage in Illicit Sexual Conduct.--A
person who travels in interstate commerce or travels into the United
States, or a United States citizen or an alien admitted for permanent
residence in the United States who travels in foreign commerce, for the
purpose of engaging in any illicit sexual conduct with another person
shall be fined under this title or imprisoned not more than 30 years, or
both.
``(c) Engaging in Illicit Sexual Conduct in Foreign Places.--Any
United States citizen or alien admitted for permanent residence who
travels in foreign commerce, and engages in any illicit sexual conduct
with another person shall be fined under this title or imprisoned not
more than 30 years, or both.
``(d) Ancillary Offenses.--Whoever, for the purpose of commercial
advantage or private financial gain, arranges, induces, procures, or
facilitates the travel of a person knowing that such a person is
traveling in interstate commerce or foreign commerce for the purpose of
engaging in illicit sexual conduct shall be fined under this title,
imprisoned not more than 30 years, or both.
``(e) Attempt and Conspiracy.--Whoever attempts or conspires to
violate subsection (a), (b), (c), or (d) shall be punishable in the same
manner as a completed violation of that subsection.
``(f) Definition.--As used in this section, the term `illicit sexual
conduct' means (1) a sexual act (as defined in section 2246) with a
person under 18 years of age that would be in violation of chapter 109A
if the sexual act occurred in the special maritime and territorial
jurisdiction of the United States; or (2) any commercial sex act (as
defined in section 1591) with a person under 18 years of age.
``(g) Defense.--In a prosecution under this section based on illicit
sexual conduct as defined in subsection (f)(2), it is a defense, which
the defendant must establish by a preponderance of the evidence, that
the defendant reasonably believed that the person with whom the
defendant engaged in the commercial sex act had attained the age of 18
years.''.
(b) Conforming Amendment.--Section 2423(a) of title 18, United
States Code, is amended by striking ``or attempts to do so,''.
SEC. 106. TWO STRIKES YOU'RE OUT.
(a) In General.--Section 3559 of title 18, United States Code, is
amended by adding at the end the following new subsection:
``(e) Mandatory Life Imprisonment for Repeated Sex Offenses Against
Children.--
``(1) In general.--A person who is convicted of a Federal
sex offense in which a minor is the victim shall be sentenced to
life imprisonment if the person has a prior sex conviction in
which a minor was the victim, unless the sentence of death is
imposed.
``(2) Definitions.--For the purposes of this subsection--
``(A) the term `Federal sex offense' means an
offense under section 2241 (relating to aggravated
sexual abuse), 2242 (relating to sexual abuse),
2244(a)(1) (relating to abusive sexual contact), 2245
(relating to sexual abuse resulting in death), 2251
(relating to sexual exploitation of children), 2251A
(relating to selling or buying of children), 2422(b)
(relating to coercion and enticement of a
[[Page 117 STAT. 655]]
minor into prostitution), or 2423(a) (relating to
transportation of minors);
``(B) the term `State sex offense' means an offense
under State law that is punishable by more than one year
in prison and consists of conduct that would be a
Federal sex offense if, to the extent or in the manner
specified in the applicable provision of this title--
``(i) the offense involved interstate or
foreign commerce, or the use of the mails; or
``(ii) the conduct occurred in any
commonwealth, territory, or possession of the
United States, within the special maritime and
territorial jurisdiction of the United States, in
a Federal prison, on any land or building owned
by, leased to, or otherwise used by or under the
control of the Government of the United States, or
in the Indian country (as defined in section
1151);
``(C) the term `prior sex conviction' means a
conviction for which the sentence was imposed before the
conduct occurred constituting the subsequent Federal sex
offense, and which was for a Federal sex offense or a
State sex offense;
``(D) the term `minor' means an individual who has
not attained the age of 17 years; and
``(E) the term `State' has the meaning given that
term in subsection (c)(2).
``(3) Nonqualifying Felonies.--An offense described in
section 2422(b) or 2423(a) shall not serve as a basis for
sentencing under this subsection if the defendant establishes by
clear and convincing evidence that--
``(A) the sexual act or activity was consensual and
not for the purpose of commercial or pecuniary gain;
``(B) the sexual act or activity would not be
punishable by more than one year in prison under the law
of the State in which it occurred; or
``(C) no sexual act or activity occurred.''.
(b) Conforming Amendment.--Sections 2247(a) and 2426(a) of title 18,
United States Code, are each amended by inserting ``, unless section
3559(e) applies'' before the final period.
SEC. 107. ATTEMPT LIABILITY FOR INTERNATIONAL PARENTAL KIDNAPPING.
Section 1204 of title 18, United States Code, is amended--
(1) in subsection (a), by inserting ``, or attempts to do
so,'' before ``or retains''; and
(2) in subsection (c)--
(A) in paragraph (1), by inserting ``or the Uniform
Child Custody Jurisdiction and Enforcement Act'' before
``and was''; and
(B) in paragraph (2), by inserting ``or'' after the
semicolon.
SEC. 108. <<NOTE: 42 USC 5119a note.>> PILOT PROGRAM FOR NATIONAL
CRIMINAL HISTORY BACKGROUND CHECKS AND
FEASIBILITY STUDY.
(a) Establishment of Pilot Program.--
(1) In general.--Not <<NOTE: Deadlines.>> later than 90 days
after the date of the enactment of this Act, the Attorney
General shall establish a pilot program for volunteer groups to
obtain national
[[Page 117 STAT. 656]]
and State criminal history background checks through a 10-
fingerprint check to be conducted utilizing State criminal
records and the Integrated Automated Fingerprint Identification
System of the Federal Bureau of Investigation.
(2) State pilot program.--
(A) In general.--The Attorney General shall
designate 3 States as participants in an 18-month State
pilot program.
(B) Volunteer organization requests.--A volunteer
organization in one of the 3 States participating in the
State pilot program under this paragraph that is part of
the Boys and Girls Clubs of America, the National
Mentoring Partnerships, or the National Council of Youth
Sports may submit a request for a 10-fingerprint check
from the participating State. A volunteer organization
in a participating State may not submit background check
requests under paragraph (3).
(C) State check.--The participating State under this
paragraph after receiving a request under subparagraph
(B) shall conduct a State background check and submit a
request that a Federal check be performed through the
Integrated Automated Fingerprint Identification System
of the Federal Bureau of Investigation, to the Attorney
General, in a manner to be determined by the Attorney
General.
(D) Information provided.--Under procedures
established by the Attorney General, any criminal
history record information resulting from the State and
Federal check under subparagraph (C) shall be provided
to the State or National Center for Missing and
Exploited Children consistent with the National Child
Protection Act.
(E) Costs.--A State may collect a fee to perform a
criminal background check under this paragraph which may
not exceed the actual costs to the State to perform such
a check.
(F) Timing.--For any background check performed
under this paragraph, the State shall provide the State
criminal record information to the Attorney General
within 7 days after receiving the request from the
organization, unless the Attorney General determines
during the feasibility study that such a check cannot
reasonably be performed within that time period. The
Attorney General shall provide the criminal history
records information to the National Center for Missing
and Exploited Children within 7 business days after
receiving the request from the State.
(3) Child safety pilot program.--
(A) In general.--The Attorney General shall
establish an 18-month Child Safety Pilot Program that
shall provide for the processing of 100,000 10-
fingerprint check requests from organizations described
in subparagraph (B) conducted through the Integrated
Automated Fingerprint Identification System of the
Federal Bureau of Investigation.
(B) Eligible organizations.--An organization
described in this subparagraph is an organization in a
State not designated under paragraph (2) that has
received a request allotment pursuant to subparagraph
(C).
[[Page 117 STAT. 657]]
(C) Request allotments.--The following organizations
may allot requests as follows:
(i) 33,334 for the Boys and Girls Clubs of
America.
(ii) 33,333 for the National Mentoring
Partnership.
(iii) 33,333 for the National Council of Youth
Sports.
(D) Procedures.--
The <<NOTE: Notification.>> Attorney General shall
notify the organizations described in subparagraph (C)
of a process by which the organizations may provide
fingerprint cards to the Attorney General.
(E) Volunteer information required.--An organization
authorized to request a background check under this
paragraph shall--
(i) forward to the Attorney General the
volunteer's fingerprints; and
(ii) obtain a statement completed and signed
by the volunteer that--
(I) sets out the provider or
volunteer's name, address, date of birth
appearing on a valid identification
document as defined in section 1028 of
title 18, United States Code, and a
photocopy of the valid identifying
document;
(II) states whether the volunteer
has a criminal record, and, if so, sets
out the particulars of such record;
(III) notifies the volunteer that
the Attorney General may perform a
criminal history background check and
that the volunteer's signature to the
statement constitutes an acknowledgment
that such a check may be conducted;
(IV) notifies the volunteer that
prior to and after the completion of the
background check, the organization may
choose to deny the provider access to
children; and
(V) notifies the volunteer of his
right to correct an erroneous record
held by the Attorney General.
(F) Timing.--For any background checks performed
under this paragraph, the Attorney General shall provide
the criminal history records information to the National
Center for Missing and Exploited Children within 14
business days after receiving the request from the
organization.
(G) Determinations of fitness.--
(i) In general.--Consistent with the privacy
protections delineated in the National Child
Protection Act (42 U.S.C. 5119), the National
Center for Missing and Exploited Children may make
a determination whether the criminal history
record information received in response to the
criminal history background checks conducted under
this paragraph indicates that the provider or
volunteer has a criminal history record that
renders the provider or volunteer unfit to provide
care to children based upon criteria established
jointly by, the National Center for Missing and
Exploited Children, the Boys and Girls Clubs of
America, the National Mentoring Partnership, and
the National Council of Youth Sports.
[[Page 117 STAT. 658]]
(ii) Child safety pilot program.--The National
Center for Missing and Exploited Children shall
convey that determination to the organizations
making requests under this paragraph.
(4) Fees collected by attorney general.--The Attorney
General may collect a fee which may not exceed $18 to cover the
cost to the Federal Bureau of Investigation to conduct the
background check under paragraph (2) or (3).
(b) Rights of Volunteers.--Each volunteer who is the subject of a
criminal history background check under this section is entitled to
contact the Attorney General to initiate procedures to--
(1) obtain a copy of their criminal history record report;
and
(2) challenge the accuracy and completeness of the criminal
history record information in the report.
(c) Authorization of Appropriations.--
(1) In general.--There is authorized to be appropriated such
sums as may be necessary to the National Center for Missing and
Exploited Children for fiscal years 2004 and 2005 to carry out
the requirements of this section.
(2) State program.--There is authorized to be appropriated
such sums as may be necessary to the Attorney General for the
States designated in subsection (a)(1) for fiscal years 2004 and
2005 to establish and enhance fingerprint technology
infrastructure of the participating State.
(d) Feasibility Study for a System of Background Checks for
Employees and Volunteers.--
(1) Study required.--The <<NOTE: Deadline.>> Attorney
General shall conduct a feasibility study within 180 days after
the date of the enactment of this Act. The study shall examine,
to the extent discernible, the following:
(A) The current state of fingerprint capture and
processing at the State and local level, including the
current available infrastructure, State system
capacities, and the time for each State to process a
civil or volunteer print from the time of capture to
submission to the Federal Bureau of Investigation (FBI).
(B) The intent of the States concerning
participation in a nationwide system of criminal
background checks to provide information to qualified
entities.
(C) The number of volunteers, employees, and other
individuals that would require a fingerprint-based
criminal background check.
(D) The impact on the Integrated Automated
Fingerprint Identification System (IAFIS) of the Federal
Bureau of Investigation in terms of capacity and impact
on other users of the system, including the effect on
Federal Bureau of Investigation work practices and
staffing levels.
(E) The current fees charged by the Federal Bureau
of Investigation, States and local agencies, and private
companies to process fingerprints and conduct background
checks.
(F) The existence of ``model'' or best practice
programs which could easily be expanded and duplicated
in other States.
(G) The extent to which private companies are
currently performing background checks and the
possibility
[[Page 117 STAT. 659]]
of using private companies in the future to perform any
of the background check process, including, but not
limited to, the capture and transmission of fingerprints
and fitness determinations.
(H) The cost of development and operation of the
technology and the infrastructure necessary to establish
a nationwide fingerprint-based and other criminal
background check system.
(I) The extent of State participation in the
procedures for background checks authorized in the
National Child Protection Act (Public Law 103-209), as
amended by the Volunteers for Children Act (sections 221
and 222 of Public Law 105-251).
(J) The extent to which States currently provide
access to nationwide criminal history background checks
to organizations that serve children.
(K) The extent to which States currently permit
volunteers to appeal adverse fitness determinations, and
whether similar procedures are required at the Federal
level.
(L) The implementation of the 2 pilot programs
created in subsection (a).
(M) Any privacy concerns that may arise from
nationwide criminal background checks.
(N) Any other information deemed relevant by the
Department of Justice.
(2) Interim report.--Based on the findings of the
feasibility study under paragraph (1), the Attorney General
shall, not later than 180 days after the date of the enactment
of this Act, submit to Congress an interim report, which may
include recommendations for a pilot project to develop or
improve programs to collect fingerprints and perform background
checks on individuals that seek to volunteer with organizations
that work with children, the elderly, or the disabled.
(3) Final report.--Based <<NOTE: Deadline.>> on the findings
of the pilot project, the Attorney General shall, not later than
60 days after completion of the pilot project under this
section, submit to Congress a final report, including
recommendations, which may include a proposal for grants to the
States to develop or improve programs to collect fingerprints
and perform background checks on individuals that seek to
volunteer with organizations that work with children, the
elderly, or the disabled, and which may include recommendations
for amendments to the National Child Protection Act and the
Volunteers for Children Act so that qualified entities can
promptly and affordably conduct nationwide criminal history
background checks on their employees and volunteers.
TITLE II--INVESTIGATIONS AND PROSECUTIONS
SEC. 201. INTERCEPTIONS OF COMMUNICATIONS IN INVESTIGATIONS OF SEX
OFFENSES.
Section 2516(1) of title 18, United States Code, is amended--
[[Page 117 STAT. 660]]
(1) in paragraph (a), by inserting after ``chapter 37
(relating to espionage),'' the following: ``chapter 55 (relating
to kidnapping),''; and
(2) in paragraph (c)--
(A) by inserting ``section 1591 (sex trafficking of
children by force, fraud, or coercion),'' after
``section 1511 (obstruction of State or local law
enforcement),''; and
(B) by inserting ``section 2251A (selling or buying
of children), section 2252A (relating to material
constituting or containing child pornography), section
1466A (relating to child obscenity), section 2260
(production of sexually explicit depictions of a minor
for importation into the United States), sections 2421,
2422, 2423, and 2425 (relating to transportation for
illegal sexual activity and related crimes),'' after
``sections 2251 and 2252 (sexual exploitation of
children),''.
SEC. 202. NO STATUTE OF LIMITATIONS FOR CHILD ABDUCTION AND SEX
CRIMES.
Section 3283 of title 18, United States Code, is amended to read as
follows:
``Sec. 3283. Offenses against children
``No statute of limitations that would otherwise preclude
prosecution for an offense involving the sexual or physical abuse, or
kidnaping, of a child under the age of 18 years shall preclude such
prosecution during the life of the child.''.
SEC. 203. NO PRETRIAL RELEASE FOR THOSE WHO RAPE OR KIDNAP
CHILDREN.
Section 3142(e) of title 18, United States Code, is amended--
(1) by striking ``1901 et seq.), or'' and inserting ``1901
et seq.),''; and
(2) by striking ``of title 18 of the United States Code''
and inserting ``of this title, or an offense involving a minor
victim under section 1201, 1591, 2241, 2242, 2244(a)(1), 2245,
2251, 2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1),
2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423,
or 2425 of this title''.
SEC. 204. SUZANNE'S LAW.
Section 3701(a) of the Crime Control Act of 1990 (42 U.S.C. 5779(a))
is amended by striking ``age of 18'' and inserting ``age of 21''.
TITLE III--PUBLIC OUTREACH
Subtitle A--AMBER Alert
SEC. 301. <<NOTE: 42 USC 5791.>> NATIONAL COORDINATION OF AMBER
ALERT COMMUNICATIONS NETWORK.
(a) Coordination Within Department of Justice.--The Attorney General
shall assign an officer of the Department of Justice to act as the
national coordinator of the AMBER Alert communications network regarding
abducted children. The officer so designated shall be known as the AMBER
Alert Coordinator of the Department of Justice.
[[Page 117 STAT. 661]]
(b) Duties.--In acting as the national coordinator of the AMBER
Alert communications network, the Coordinator shall--
(1) seek to eliminate gaps in the network, including gaps in
areas of interstate travel;
(2) work with States to encourage the development of
additional elements (known as local AMBER plans) in the network;
(3) work with States to ensure appropriate regional
coordination of various elements of the network; and
(4) act as the nationwide point of contact for--
(A) the development of the network; and
(B) regional coordination of alerts on abducted
children through the network.
(c) Consultation With Federal Bureau of Investigation.--In carrying
out duties under subsection (b), the Coordinator shall notify and
consult with the Director of the Federal Bureau of Investigation
concerning each child abduction for which an alert is issued through the
AMBER Alert communications network.
(d) Cooperation.--The Coordinator shall cooperate with the Secretary
of Transportation and the Federal Communications Commission in carrying
out activities under this section.
(e) Report.--Not <<NOTE: Deadline.>> later than March 1, 2005, the
Coordinator shall submit to Congress a report on the activities of the
Coordinator and the effectiveness and status of the AMBER plans of each
State that has implemented such a plan. The Coordinator shall prepare
the report in consultation with the Secretary of Transportation.
SEC. 302. <<NOTE: 42 USC 5791a.>> MINIMUM STANDARDS FOR ISSUANCE
AND DISSEMINATION OF ALERTS THROUGH AMBER
ALERT COMMUNICATIONS NETWORK.
(a) Establishment of Minimum Standards.--Subject to subsection (b),
the AMBER Alert Coordinator of the Department of Justice shall establish
minimum standards for--
(1) the issuance of alerts through the AMBER Alert
communications network; and
(2) the extent of the dissemination of alerts issued through
the network.
(b) Limitations.--(1) The minimum standards established under
subsection (a) shall be adoptable on a voluntary basis only.
(2) The minimum standards shall, to the maximum extent practicable
(as determined by the Coordinator in consultation with State and local
law enforcement agencies), provide that appropriate information relating
to the special needs of an abducted child (including health care needs)
are disseminated to the appropriate law enforcement, public health, and
other public officials.
(3) The minimum standards shall, to the maximum extent practicable
(as determined by the Coordinator in consultation with State and local
law enforcement agencies), provide that the dissemination of an alert
through the AMBER Alert communications network be limited to the
geographic areas most likely to facilitate the recovery of the abducted
child concerned.
(4) In carrying out activities under subsection (a), the Coordinator
may not interfere with the current system of voluntary coordination
between local broadcasters and State and local law enforcement agencies
for purposes of the AMBER Alert communications network.
[[Page 117 STAT. 662]]
(c) Cooperation.--(1) The Coordinator shall cooperate with the
Secretary of Transportation and the Federal Communications Commission in
carrying out activities under this section.
(2) The Coordinator shall also cooperate with local broadcasters and
State and local law enforcement agencies in establishing minimum
standards under this section.
SEC. 303. <<NOTE: 42 USC 5791b.>> GRANT PROGRAM FOR NOTIFICATION
AND COMMUNICATIONS SYSTEMS ALONG HIGHWAYS
FOR RECOVERY OF ABDUCTED CHILDREN.
(a) Program Required.--The Secretary of Transportation shall carry
out a program to provide grants to States for the development or
enhancement of notification or communications systems along highways for
alerts and other information for the recovery of abducted children.
(b) Development Grants.--
(1) In general.--The Secretary may make a grant to a State
under this subsection for the development of a State program for
the use of changeable message signs or other motorist
information systems to notify motorists about abductions of
children. The State program shall provide for the planning,
coordination, and design of systems, protocols, and message sets
that support the coordination and communication necessary to
notify motorists about abductions of children.
(2) Eligible activities.--A grant under this subsection may
be used by a State for the following purposes:
(A) To develop general policies and procedures to
guide the use of changeable message signs or other
motorist information systems to notify motorists about
abductions of children.
(B) To develop guidance or policies on the content
and format of alert messages to be conveyed on
changeable message signs or other traveler information
systems.
(C) To coordinate State, regional, and local plans
for the use of changeable message signs or other
transportation related issues.
(D) To plan secure and reliable communications
systems and protocols among public safety and
transportation agencies or modify existing
communications systems to support the notification of
motorists about abductions of children.
(E) To plan and design improved systems for
communicating with motorists, including the capability
for issuing wide area alerts to motorists.
(F) To plan systems and protocols to facilitate the
efficient issuance of child abduction notification and
other key information to motorists during off-hours.
(G) To provide training and guidance to
transportation authorities to facilitate appropriate use
of changeable message signs and other traveler
information systems for the notification of motorists
about abductions of children.
(c) Implementation Grants.--
(1) In general.--The Secretary may make a grant to a State
under this subsection for the implementation of a program for
the use of changeable message signs or other motorist
information systems to notify motorists about abductions of
[[Page 117 STAT. 663]]
children. A State shall be eligible for a grant under this
subsection if the Secretary determines that the State has
developed a State program in accordance with subsection (b).
(2) Eligible activities.--A grant under this subsection may
be used by a State to support the implementation of systems that
use changeable message signs or other motorist information
systems to notify motorists about abductions of children. Such
support may include the purchase and installation of changeable
message signs or other motorist information systems to notify
motorists about abductions of children.
(d) Federal Share.--The Federal share of the cost of any activities
funded by a grant under this section may not exceed 80 percent.
(e) Distribution of Grant Amounts.--The Secretary shall, to the
maximum extent practicable, distribute grants under this section equally
among the States that apply for a grant under this section within the
time period prescribed by the Secretary.
(f) Administration.--The Secretary shall prescribe requirements,
including application requirements, for the receipt of grants under this
section.
(g) Definition.--In this section, the term ``State'' means any of
the 50 States, the District of Columbia, or Puerto Rico.
(h) Authorization of Appropriations.--There is authorized to be
appropriated to the Secretary to carry out this section $20,000,000 for
fiscal year 2004. Such amounts shall remain available until expended.
(i) Study of State Programs.--
(1) Study.--The Secretary shall conduct a study to examine
State barriers to the adoption and implementation of State
programs for the use of communications systems along highways
for alerts and other information for the recovery of abducted
children.
(2) Report.--Not <<NOTE: Deadline.>> later than 1 year after
the date of enactment of this Act, the Secretary shall transmit
to Congress a report on the results of the study, together with
any recommendations the Secretary determines appropriate.
SEC. 304. <<NOTE: 42 USC 5791c.>> GRANT PROGRAM FOR SUPPORT OF
AMBER ALERT COMMUNICATIONS PLANS.
(a) Program Required.--The Attorney General shall carry out a
program to provide grants to States for the development or enhancement
of programs and activities for the support of AMBER Alert communications
plans.
(b) Activities.--Activities funded by grants under the program under
subsection (a) may include--
(1) the development and implementation of education and
training programs, and associated materials, relating to AMBER
Alert communications plans;
(2) the development and implementation of law enforcement
programs, and associated equipment, relating to AMBER Alert
communications plans;
(3) the development and implementation of new technologies
to improve AMBER Alert communications; and
(4) such other activities as the Attorney General considers
appropriate for supporting the AMBER Alert communications
program.
[[Page 117 STAT. 664]]
(c) Federal Share.--The Federal share of the cost of any activities
funded by a grant under the program under subsection (a) may not exceed
50 percent.
(d) Distribution of Grant Amounts on Geographic Basis.--The Attorney
General shall, to the maximum extent practicable, ensure the
distribution of grants under the program under subsection (a) on an
equitable basis throughout the various regions of the United States.
(e) Administration.--The Attorney General shall prescribe
requirements, including application requirements, for grants under the
program under subsection (a).
(f) Authorization of Appropriations.--(1) There is authorized to be
appropriated for the Department of Justice $5,000,000 for fiscal year
2004 to carry out this section and, in addition, $5,000,000 for fiscal
year 2004 to carry out subsection (b)(3).
(2) Amounts appropriated pursuant to the authorization of
appropriations in paragraph (1) shall remain available until expended.
SEC. 305. <<NOTE: 42 USC 5791d.>> LIMITATION ON LIABILITY.
(a) Except as provided in subsection (b), the National Center for
Missing and Exploited Children, including any of its officers,
employees, or agents, shall not be liable for damages in any civil
action for defamation, libel, slander, or harm to reputation arising out
of any action or communication by the National Center for Missing and
Exploited Children, its officers, employees, or agents, in connection
with any clearinghouse, hotline or complaint intake or forwarding
program or in connection with activity that is wholly or partially
funded by the United States and undertaken in cooperation with, or at
the direction of a Federal law enforcement agency.
(b) The limitation in subsection (a) does not apply in any action in
which the plaintiff proves that the National Center for Missing and
Exploited Children, its officers, employees, or agents acted with actual
malice, or provided information or took action for a purpose unrelated
to an activity mandated by Federal law. For purposes of this subsection,
the prevention, or detection of crime, and the safety, recovery, or
protection of missing or exploited children shall be deemed, per se, to
be an activity mandated by Federal law.
Subtitle B--National Center for Missing and Exploited Children
SEC. 321. INCREASED SUPPORT.
(a) In General.--Section 408(a) of the Missing Children's Assistance
Act (42 U.S.C. 5777(a)) is amended by striking ``fiscal years 2000
through 2003'' and inserting ``fiscal years 2004 through 2005.''.
(b) Annual Grant to National Center For Missing and Exploited
Children.--Section 404(b)(2) of the Missing Children's Assistance Act
(42 U.S.C. 5773(b)(2)) is amended by striking ``$10,000,000 for each of
fiscal years 2000, 2001, 2002, and 2003'' and inserting ``$20,000,000
for each of the fiscal years 2004 through 2005''.
[[Page 117 STAT. 665]]
SEC. 322. FORENSIC AND INVESTIGATIVE SUPPORT OF MISSING AND
EXPLOITED CHILDREN.
Section 3056 of title 18, United States Code, is amended by adding
at the end the following:
``(f) Under the direction of the Secretary of Homeland Security,
officers and agents of the Secret Service are authorized, at the request
of any State or local law enforcement agency, or at the request of the
National Center for Missing and Exploited Children, to provide forensic
and investigative assistance in support of any investigation involving
missing or exploited children.''.
SEC. 323. CREATION OF CYBER TIPLINE.
Section 404(b)(1) of the Missing Children's Assistance Act (42
U.S.C. 5773(b)(1)) is amended--
(1) in subparagraph (F), by striking ``and'' at the end;
(2) in subparagraph (G), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(H) coordinate the operation of a cyber tipline to
provide online users an effective means of reporting
Internet-related child sexual exploitation in the areas
of--
``(i) distribution of child pornography;
``(ii) online enticement of children for
sexual acts; and
``(iii) child prostitution.''.
Subtitle C--Sex Offender Apprehension Program
SEC. 341. AUTHORIZATION.
Section 1701(d) of part Q of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3796dd(d)) is amended--
(1) by redesignating paragraphs (10) and (11) as (11) and
(12), respectively; and
(2) by inserting after paragraph (9) the following:
``(10) assist a State in enforcing a law throughout the
State which requires that a convicted sex offender register his
or her address with a State or local law enforcement agency and
be subject to criminal prosecution for failure to comply;''.
Subtitle D--Missing <<NOTE: Code Adam Act of 2003.>> Children Procedures
in Public Buildings
SEC. 361. <<NOTE: 42 USC 5601 note.>> SHORT TITLE.
This subtitle may be cited as the ``Code Adam Act of 2003''.
SEC. 362. <<NOTE: 42 USC 5792.>> DEFINITIONS.
In this subtitle, the following definitions apply:
(1) Child.--The term ``child'' means an individual who is 17
years of age or younger.
(2) Code adam alert.--The term ``Code Adam alert'' means a
set of procedures used in public buildings to alert employees
and other users of the building that a child is missing.
[[Page 117 STAT. 666]]
(3) Designated authority.--The term ``designated authority''
means--
(A) with respect to a public building owned or
leased for use by an Executive agency--
(i) except as otherwise provided in this
paragraph, the Administrator of General Services;
(ii) in the case of the John F. Kennedy Center
for the Performing Arts, the Board of Trustees of
the John F. Kennedy Center for the Performing
Arts;
(iii) in the case of buildings under the
jurisdiction, custody, and control of the
Smithsonian Institution, the Board of Regents of
the Smithsonian Institution; or
(iv) in the case of another public building
for which an Executive agency has, by specific or
general statutory authority, jurisdiction,
custody, and control over the building, the head
of that agency;
(B) with respect to the Supreme Court Building, the
Marshal of the Supreme Court; with respect to the
Thurgood Marshall Federal Judiciary Building, the
Director of the Administrative Office of United States
Courts; and with respect to all other public buildings
owned or leased for use by an establishment in the
judicial branch of government, the General Services
Administration in consultation with the United States
Marshals Service; and
(C) with respect to a public building owned or
leased for use by an establishment in the legislative
branch of government, the Capitol Police Board.
(4) Executive agency.--The term ``Executive agency'' has the
same meaning such term has under section 105 of title 5, United
States Code.
(5) Federal agency.--The term ``Federal agency'' means any
Executive agency or any establishment in the legislative or
judicial branches of the Government.
(6) Public building.--The term ``public building'' means any
building (or portion thereof) owned or leased for use by a
Federal agency.
SEC. 363. <<NOTE: 42 USC 5792a.>> PROCEDURES IN PUBLIC BUILDINGS
REGARDING A MISSING OR LOST CHILD.
(a) In General.--Not <<NOTE: Deadline.>> later than 180 days after
the date of enactment of this Act, the designated authority for a public
building shall establish procedures for locating a child that is missing
in the building.
(b) Notification and Search Procedures.--Procedures established
under this section shall provide, at a minimum, for the following:
(1) Notifying security personnel that a child is missing.
(2) Obtaining a detailed description of the child, including
name, age, eye and hair color, height, weight, clothing, and
shoes.
(3) Issuing a Code Adam alert and providing a description of
the child, using a fast and effective means of communication.
(4) Establishing a central point of contact.
(5) Monitoring all points of egress from the building while
a Code Adam alert is in effect.
(6) Conducting a thorough search of the building.
[[Page 117 STAT. 667]]
(7) Contacting local law enforcement.
(8) Documenting the incident.
Subtitle E--Child Advocacy Center Grants
SEC. 381. INFORMATION AND DOCUMENTATION REQUIRED BY ATTORNEY
GENERAL UNDER VICTIMS OF CHILD ABUSE ACT
OF 1990.
(a) Regional Children's Advocacy Centers.--Section 213 of the
Victims of Child Abuse Act of 1990 (42 U.S.C. 13001b) is amended--
(1) in subsection (c)(4)--
(A) by striking ``and'' at the end of subparagraph
(B)(ii);
(B) in subparagraph (B)(iii), by striking ``Board''
and inserting ``board''; and
(C) by redesignating subparagraphs (C) and (D) as
clauses (iv) and (v), respectively, of subparagraph (B),
and by realigning such clauses so as to have the same
indentation as the preceding clauses of subparagraph
(B); and
(2) in subsection (e), by striking ``Board'' in each of
paragraphs (1)(B)(ii), (2)(A), and (3), and inserting ``board''.
(b) Authorization of Appropriations.--The text of section 214B of
such Act (42 U.S.C. 13004) is amended to read as follows:
``(a) Sections 213 and 214.--There are authorized to be appropriated
to carry out sections 213 and 214, $15,000,000 for each of fiscal years
2004 and 2005.
``(b) Section 214A.--There are authorized to be appropriated to
carry out section 214A, $5,000,000 for each of fiscal years 2004 and
2005.''.
TITLE IV--SENTENCING REFORM
SEC. 401. SENTENCING REFORM.
(a) Enforcement of Sentencing Guidelines for Child Abduction and Sex
Offenses.--Section 3553(b) of title 18, United States Code is amended--
(1) by striking ``The court'' and inserting the following:
``(1) In general.--Except as provided in paragraph (2), the
court''; and
(2) by adding at the end the following:
``(2) Child crimes and sexual offenses.--
``(A) Sentencing.--In sentencing a defendant
convicted of an offense under section 1201 involving a
minor victim, an offense under section 1591, or an
offense under chapter 71, 109A, 110, or 117, the court
shall impose a sentence of the kind, and within the
range, referred to in subsection (a)(4) unless--
``(i) the court finds that there exists an
aggravating circumstance of a kind, or to a
degree, not adequately taken into consideration by
the Sentencing Commission in formulating the
guidelines that should result in a sentence
greater than that described;
``(ii) the court finds that there exists a
mitigating circumstance of a kind or to a degree,
that--
[[Page 117 STAT. 668]]
``(I) has been affirmatively and
specifically identified as a permissible
ground of downward departure in the
sentencing guidelines or policy
statements issued under section 994(a)
of title 28, taking account of any
amendments to such sentencing guidelines
or policy statements by Congress;
``(II) has not been taken into
consideration by the Sentencing
Commission in formulating the
guidelines; and
``(III) should result in a sentence
different from that described; or
``(iii) the court finds, on motion of the
Government, that the defendant has provided
substantial assistance in the investigation or
prosecution of another person who has committed an
offense and that this assistance established a
mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the
Sentencing Commission in formulating the
guidelines that should result in a sentence lower
than that described.
In determining whether a circumstance was adequately taken into
consideration, the court shall consider only the sentencing guidelines,
policy statements, and official commentary of the Sentencing Commission,
together with any amendments thereto by act of Congress. In the absence
of an applicable sentencing guideline, the court shall impose an
appropriate sentence, having due regard for the purposes set forth in
subsection (a)(2). In the absence of an applicable sentencing guideline
in the case of an offense other than a petty offense, the court shall
also have due regard for the relationship of the sentence imposed to
sentences prescribed by guidelines applicable to similar offenses and
offenders, and to the applicable policy statements of the Sentencing
Commission, together with any amendments to such guidelines or policy
statements by act of Congress.''.
(b) Conforming <<NOTE: 28 USC 994 note.>> Amendments to Guidelines
Manual.--The Federal Sentencing Guidelines are amended--
(1) in section 5K2.0--
(A) by striking ``Under'' and inserting the
following:
``(a) Downward Departures in Criminal Cases Other Than Child Crimes
and Sexual Offenses.--Under''; and
(B) by adding at the end the following:
``(b) Downward Departures in Child Crimes and Sexual Offenses.--
``Under 18 U.S.C. Sec. 3553(b)(2), the sentencing court may impose a
sentence below the range established by the applicable guidelines only
if the court finds that there exists a mitigating circumstance of a
kind, or to a degree, that--
``(1) has been affirmatively and specifically identified as a
permissible ground of downward departure in the sentencing
guidelines or policy statements issued under section 994(a) of
title 28, United States Code, taking account of any amendments
to such sentencing guidelines or policy statements by act of
Congress;
``(2) has not adequately been taken into consideration by the
Sentencing Commission in formulating the guidelines; and
``(3) should result in a sentence different from that described.
[[Page 117 STAT. 669]]
The grounds enumerated in this Part K of chapter 5 are the sole grounds
that have been affirmatively and specifically identified as a
permissible ground of downward departure in these sentencing guidelines
and policy statements. Thus, notwithstanding any other reference to
authority to depart downward elsewhere in this Sentencing Manual, a
ground of downward departure has not been affirmatively and specifically
identified as a permissible ground of downward departure within the
meaning of section 3553(b)(2) unless it is expressly enumerated in this
Part K as a ground upon which a downward departure may be granted.''.
(2) At the end of part K of chapter 5, add the following:
``Sec. 5K2.22 Specific Offender Characteristics as Grounds for
Downward Departure in child crimes and
sexual offenses (Policy Statement)
``In sentencing a defendant convicted of an offense under section 1201
involving a minor victim, an offense under section 1591, or an offense
under chapter 71, 109A, 110, or 117 of title 18, United States Code, age
may be a reason to impose a sentence below the applicable guideline
range only if and to the extent permitted by Sec. 5H1.1.
``An extraordinary physical impairment may be a reason to impose a
sentence below the applicable guideline range only if and to the extent
permitted by Sec. 5H1.4. Drug, alcohol, or gambling dependence or abuse
is not a reason for imposing a sentence below the guidelines.
(3) Section 5K2.20 is amended by striking ``A'' and
inserting ``Except where a defendant is convicted of an offense
under section 1201 involving a minor victim, an offense under
section 1591, or an offense under chapter 71, 109A, 110, or 117
of title 18, United States Code, a''.
(4) Section 5H1.6 is amended by inserting after the first
sentence the following: ``In sentencing a defendant convicted of
an offense under section 1201 involving a minor victim, an
offense under section 1591, or an offense under chapter 71,
109A, 110, or 117 of title 18, United States Code, family ties
and responsibilities and community ties are not relevant in
determining whether a sentence should be below the applicable
guideline range.''.
(5) Section 5K2.13 is amended by--
(A) striking ``or'' before ``(3)''; and
(B) replacing ``public'' with ``public; or (4) the
defendant has been convicted of an offense under chapter
71, 109A, 110, or 117 of title 18, United States
Code.''.
(c) Statement of Reasons for Imposing a Sentence.--Section 3553(c)
of title 18, United States Code, is amended--
(1) by striking ``described.'' and inserting ``described,
which reasons must also be stated with specificity in the
written order of judgment and commitment, except to the extent
that the court relies upon statements received in camera in
accordance with Federal Rule of Criminal Procedure 32. In the
event that the court relies upon statements received in camera
in accordance with Federal Rule of Criminal Procedure 32 the
court shall state that such statements were so received and that
it relied upon the content of such statements.'';
(2) by inserting ``, together with the order of judgment and
commitment,'' after ``the court's statement of reasons''; and
[[Page 117 STAT. 670]]
(3) by inserting ``and to the Sentencing Commission,'' after
``to the Probation System''.
(d) Review of a Sentence.--
(1) Review of departures.--Section 3742(e)(3) of title 18,
United States Code, is amended to read as follows:
``(3) is outside the applicable guideline range, and
``(A) the district court failed to provide the
written statement of reasons required by section
3553(c);
``(B) the sentence departs from the applicable
guideline range based on a factor that--
``(i) does not advance the objectives set
forth in section 3553(a)(2); or
``(ii) is not authorized under section
3553(b); or
``(iii) is not justified by the facts of the
case; or
``(C) the sentence departs to an unreasonable degree
from the applicable guidelines range, having regard for
the factors to be considered in imposing a sentence, as
set forth in section 3553(a) of this title and the
reasons for the imposition of the particular sentence,
as stated by the district court pursuant to the
provisions of section 3553(c); or''.
(2) Standard of review.--The last paragraph of section
3742(e) of title 18, United States Code, is amended by striking
``shall give due deference to the district court's application
of the guidelines to the facts'' and inserting ``, except with
respect to determinations under subsection (3)(A) or (3)(B),
shall give due deference to the district court's application of
the guidelines to the facts. With respect to determinations
under subsection (3)(A) or (3)(B), the court of appeals shall
review de novo the district court's application of the
guidelines to the facts''.
(3) Decision and disposition.--
(A) The first paragraph of section 3742(f) of title
18, United States Code, is amended by striking ``the
sentence'';
(B) Section 3742(f)(1) of title 18, United States
Code, is amended by inserting ``the sentence'' before
``was imposed'';
(C) Section 3742(f)(2) of title 18, United States
Code, is amended to read as follows:
``(2) the sentence is outside the applicable guideline range
and the district court failed to provide the required statement
of reasons in the order of judgment and commitment, or the
departure is based on an impermissible factor, or is to an
unreasonable degree, or the sentence was imposed for an offense
for which there is no applicable sentencing guideline and is
plainly unreasonable, it shall state specific reasons for its
conclusions and--
``(A) if it determines that the sentence is too high
and the appeal has been filed under subsection (a), it
shall set aside the sentence and remand the case for
further sentencing proceedings with such instructions as
the court considers appropriate, subject to subsection
(g);
``(B) if it determines that the sentence is too low
and the appeal has been filed under subsection (b), it
shall set aside the sentence and remand the case for
further sentencing proceedings with such instructions as
the court considers appropriate, subject to subsection
(g);''; and
[[Page 117 STAT. 671]]
(D) Section 3742(f)(3) of title 18, United States
Code, is amended by inserting ``the sentence'' before
``is not described''.
(e) Imposition of Sentence Upon Remand.--Section 3742 of title 18,
United States Code, is amended by redesignating subsections (g) and (h)
as subsections (h) and (i) and by inserting the following after
subsection (f):
``(g) Sentencing Upon Remand.--A district court to which a case is
remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a
defendant in accordance with section 3553 and with such instructions as
may have been given by the court of appeals, except that--
``(1) In determining the range referred to in subsection
3553(a)(4), the court shall apply the guidelines issued by the
Sentencing Commission pursuant to section 994(a)(1) of title 28,
United States Code, and that were in effect on the date of the
previous sentencing of the defendant prior to the appeal,
together with any amendments thereto by any act of Congress that
was in effect on such date; and
``(2) The court shall not impose a sentence outside the
applicable guidelines range except upon a ground that--
``(A) was specifically and affirmatively included in
the written statement of reasons required by section
3553(c) in connection with the previous sentencing of
the defendant prior to the appeal; and
``(B) was held by the court of appeals, in remanding
the case, to be a permissible ground of departure.''.
(f) Definitions.--Section 3742 of title 18, United States Code, as
amended by subsection (e), is further amended by adding at the end the
following:
``(j) Definitions.--For purposes of this section--
``(1) a factor is a `permissible' ground of departure if
it--
``(A) advances the objectives set forth in section
3553(a)(2); and
``(B) is authorized under section 3553(b); and
``(C) is justified by the facts of the case; and
``(2) a factor is an `impermissible' ground of departure if
it is not a permissible factor within the meaning of subsection
(j)(1).''.
(g) Reform <<NOTE: 28 USC 994 note.>> of Guidelines Governing
Acceptance of Responsibility.--Subject to subsection (j), the Guidelines
Manual promulgated by the Sentencing Commission pursuant to section
994(a) of title 28, United States Code, is amended--
(1) in section 3E1.1(b)--
(A) by inserting ``upon motion of the government
stating that'' immediately before ``the defendant has
assisted authorities''; and
(B) by striking ``taking one or more'' and all that
follows through and including ``additional level'' and
insert ``timely notifying authorities of his intention
to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting
the government and the court to allocate their resources
efficiently, decrease the offense level by 1 additional
level'';
(2) in the Application Notes to the Commentary to section
3E1.1, by amending Application Note 6--
(A) by striking ``one or both of''; and
[[Page 117 STAT. 672]]
(B) by adding the following new sentence at the end:
``Because the Government is in the best position to
determine whether the defendant has assisted authorities
in a manner that avoids preparing for trial, an
adjustment under subsection (b) may only be granted upon
a formal motion by the Government at the time of
sentencing.''; and
(3) in the Background to section 3E1.1, by striking ``one or
more of''.
(h) Improved Data Collection.--Section 994(w) of title 28, United
States Code, is amended to read as follows:
``(w)(1) <<NOTE: Deadline. Reports.>> The Chief Judge of each
district court shall ensure that, within 30 days following entry of
judgment in every criminal case, the sentencing court submits to the
Commission a written report of the sentence, the offense for which it is
imposed, the age, race, sex of the offender, and information regarding
factors made relevant by the guidelines. The report shall also include--
``(A) the judgment and commitment order;
``(B) the statement of reasons for the sentence imposed
(which shall include the reason for any departure from the
otherwise applicable guideline range);
``(C) any plea agreement;
``(D) the indictment or other charging document;
``(E) the presentence report; and
``(F) any other information as the Commission finds
appropriate.
``(2) The Commission shall, upon request, make available to
the House and Senate Committees on the Judiciary, the written
reports and all underlying records accompanying those reports
described in this section, as well as other records received
from courts.
``(3) The Commission shall submit to Congress at least
annually an analysis of these documents, any recommendations for
legislation that the Commission concludes is warranted by that
analysis, and an accounting of those districts that the
Commission believes have not submitted the appropriate
information and documents required by this section.
``(4) The Commission shall make available to the Attorney
General, upon request, such data files as the Commission may
assemble or maintain in electronic form that include any
information submitted under paragraph (1). Such data files shall
be made available in electronic form and shall include all data
fields requested, including the identity of the sentencing
judge.''.
(i) Sentencing <<NOTE: 28 USC 994 note.>> Guidelines Amendments.--
(1) Subject to subsection (j), the Guidelines Manual promulgated by the
Sentencing Commission pursuant to section 994(a) of title 28, United
States Code, is amended as follows:
(A) Application Note 4(b)(i) to section 4B1.5 is amended to
read as follows:
``(i) In general.--For purposes of subsection
(b), the defendant engaged in a pattern of
activity involving prohibited sexual conduct if on
at least two separate occasions, the defendant
engaged in prohibited sexual conduct with a
minor.''.
(B) Section 2G2.4(b) is amended by adding at the end the
following:
[[Page 117 STAT. 673]]
``(4) If the offense involved material that portrays
sadistic or masochistic conduct or other depictions of violence,
increase by 4 levels.
``(5) If the offense involved--
``(A) at least 10 images, but fewer than 150,
increase by 2 levels;
``(B) at least 150 images, but fewer than 300,
increase by 3 levels;
``(C) at least 300 images, but fewer than 600,
increase by 4 levels; and
``(D) 600 or more images, increase by 5 levels.''.
(C) Section 2G2.2(b) is amended by adding at the end the
following:
``(6) If the offense involved--
``(A) at least 10 images, but fewer than 150,
increase by 2 levels;
``(B) at least 150 images, but fewer than 300,
increase by 3 levels;
``(C) at least 300 images, but fewer than 600,
increase by 4 levels; and
``(D) 600 or more images, increase by 5 levels.''.
(2) The Sentencing Commission shall amend the Sentencing Guidelines
to ensure that the Guidelines adequately reflect the seriousness of the
offenses under sections 2243(b), 2244(a)(4), and 2244(b) of title 18,
United States Code.
(j) Conforming <<NOTE: 28 USC 994 note.>> Amendments.--
(1) Upon enactment of this Act, the Sentencing Commission
shall forthwith distribute to all courts of the United States
and to the United States Probation System the amendments made by
subsections (b), (g), and (i) of this section to the sentencing
guidelines, policy statements, and official commentary of the
Sentencing Commission. These amendments shall take effect upon
the date of enactment of this Act, in accordance with paragraph
(5).
(2) On <<NOTE: 28 USC 994 note.>> or before May 1, 2005, the
Sentencing Commission shall not promulgate any amendment to the
sentencing guidelines, policy statements, or official commentary
of the Sentencing Commission that is inconsistent with any
amendment made by subsection (b) or that adds any new grounds of
downward departure to Part K of chapter 5.
(3) With <<NOTE: 28 USC 994 note.>> respect to cases covered
by the amendments made by subsection (i) of this section, the
Sentencing Commission may make further amendments to the
sentencing guidelines, policy statements, or official commentary
of the Sentencing Commission, except that the Commission shall
not promulgate any amendments that, with respect to such cases,
would result in sentencing ranges that are lower than those that
would have applied under such subsection.
(4) At <<NOTE: 28 USC 994 note.>> no time may the Commission
promulgate any amendment that would alter or repeal the
amendments made by subsection (g) of this section.
(5) Section 3553(a) of title 18, United States Code, is
amended--
(A) by amending paragraph (4)(A) to read as follows:
``(A) the applicable category of offense committed
by the applicable category of defendant as set forth in
the guidelines--
[[Page 117 STAT. 674]]
``(i) issued by the Sentencing Commission
pursuant to section 994(a)(1) of title 28, United
States Code, subject to any amendments made to
such guidelines by act of Congress (regardless of
whether such amendments have yet to be
incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title
28); and
``(ii) that, except as provided in section
3742(g), are in effect on the date the defendant
is sentenced; or'';
(B) in paragraph (4)(B), by inserting ``, taking
into account any amendments made to such guidelines or
policy statements by act of Congress (regardless of
whether such amendments have yet to be incorporated by
the Sentencing Commission into amendments issued under
section 994(p) of title 28)'' after ``Code'';
(C) by amending paragraph (5) to read as follows:
``(5) any pertinent policy statement--
``(A) issued by the Sentencing Commission pursuant
to section 994(a)(2) of title 28, United States Code,
subject to any amendments made to such policy statement
by act of Congress (regardless of whether such
amendments have yet to be incorporated by the Sentencing
Commission into amendments issued under section 994(p)
of title 28); and
``(B) that, except as provided in section 3742(g),
is in effect on the date the defendant is sentenced.''.
(k) Compliance With Statute.--Section 994(a) of title 28, United
States Code, is amended by striking ``consistent with all pertinent
provisions of this title and title 18, United States Code,'' and
inserting ``consistent with all pertinent provisions of any Federal
statute''.
(l) Report <<NOTE: 18 USC 3553 note.>> by Attorney General.--
(1) Defined term.--For purposes of this section, the term
``report described in paragraph (3)'' means a report, submitted
by the Attorney General, which states in detail the policies and
procedures that the Department of Justice has adopted subsequent
to the enactment of this Act--
(A) to ensure that Department of Justice attorneys
oppose sentencing adjustments, including downward
departures, that are not supported by the facts and the
law;
(B) to ensure that Department of Justice attorneys
in such cases make a sufficient record so as to permit
the possibility of an appeal;
(C) to delineate objective criteria, specified by
the Attorney General, as to which such cases may warrant
consideration of an appeal, either because of the nature
or magnitude of the sentencing error, its prevalence in
the district, or its prevalence with respect to a
particular judge;
(D) to ensure that Department of Justice attorneys
promptly notify the designated Department of Justice
component in Washington concerning such adverse
sentencing decisions; and
(E) to ensure the vigorous pursuit of appropriate
and meritorious appeals of such adverse decisions.
(2) Report required.--
[[Page 117 STAT. 675]]
(A) In general.--Not <<NOTE: Deadline.>> later than
15 days after a district court's grant of a downward
departure in any case, other than a case involving a
downward departure for substantial assistance to
authorities pursuant to section 5K1.1 of the United
States Sentencing Guidelines, the Attorney General shall
submit a report to the Committees on the Judiciary of
the House of Representatives and the Senate containing
the information described under subparagraph (B).
(B) Contents.--The report submitted pursuant to
subparagraph (A) shall set forth--
(i) the case;
(ii) the facts involved;
(iii) the identity of the district court
judge;
(iv) the district court's stated reasons,
whether or not the court provided the United
States with advance notice of its intention to
depart; and
(v) the position of the parties with respect
to the downward departure, whether or not the
United States has filed, or intends to file, a
motion for reconsideration.
(C) Appeal of the departure.--
Not <<NOTE: Deadline.>> later than 5 days after a
decision by the Solicitor General regarding the
authorization of an appeal of the departure, the
Attorney General shall submit a report to the Committees
on the Judiciary of the House of Representatives and the
Senate that describes the decision of the Solicitor
General and the basis for such decision.
(3) Effective date.--Paragraph (2) shall take effect on the
day that is 91 days after the date of enactment of this Act,
except that such paragraph shall not take effect if not more
than 90 days after the date of enactment of this Act the
Attorney General has submitted to the Judiciary Committees of
the House of Representatives and the Senate the report described
in paragraph (3).
(m) Reform of <<NOTE: 28 USC 994 note. Deadline.>> Existing
Permissible Grounds of Downward Departures.--Not later than 180 days
after the enactment of this Act, the United States Sentencing Commission
shall--
(1) review the grounds of downward departure that are
authorized by the sentencing guidelines, policy statements, and
official commentary of the Sentencing Commission; and
(2) promulgate, pursuant to section 994 of title 28, United
States Code--
(A) appropriate amendments to the sentencing
guidelines, policy statements, and official commentary
to ensure that the incidence of downward departures are
substantially reduced;
(B) a policy statement authorizing a downward
departure of not more than 4 levels if the Government
files a motion for such departure pursuant to an early
disposition program authorized by the Attorney General
and the United States Attorney; and
(C) any other conforming amendments to the
sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission necessitated by
this Act, including a revision of paragraph 4(b) of part
A of chapter 1 and a revision of section 5K2.0.
(n) Composition of Sentencing Commission.--
[[Page 117 STAT. 676]]
(1) In general.--Section 991(a) of title 28, United States
Code, is amended by striking ``At least three'' and inserting
``Not more than 3''.
(2) Applicability.--The <<NOTE: 28 USC 991 note.>> amendment
made under paragraph (1) shall not apply to any person who is
serving, or who has been nominated to serve, as a member of the
Sentencing Commission on the date of enactment of this Act.
TITLE V--OBSCENITY AND PORNOGRAPHY
Subtitle A--Child Obscenity and Pornography Prevention
SEC. 501. <<NOTE: 18 USC 2251 note.>> FINDINGS.
Congress finds the following:
(1) Obscenity and child pornography are not entitled to
protection under the First Amendment under Miller v. California,
413 U.S. 15 (1973) (obscenity), or New York v. Ferber, 458 U.S.
747 (1982) (child pornography) and thus may be prohibited.
(2) The Government has a compelling state interest in
protecting children from those who sexually exploit them,
including both child molesters and child pornographers. ``The
prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance,''
New York v. Ferber, 458 U.S. 747, 757 (1982), and this interest
extends to stamping out the vice of child pornography at all
levels in the distribution chain. Osborne v. Ohio, 495 U.S. 103,
110 (1990).
(3) The Government thus has a compelling interest in
ensuring that the criminal prohibitions against child
pornography remain enforceable and effective. ``The most
expeditious if not the only practical method of law enforcement
may be to dry up the market for this material by imposing severe
criminal penalties on persons selling, advertising, or otherwise
promoting the product.'' Ferber, 458 U.S. at 760.
(4) In 1982, when the Supreme Court decided Ferber, the
technology did not exist to--
(A) computer generate depictions of children that
are indistinguishable from depictions of real children;
(B) use parts of images of real children to create a
composite image that is unidentifiable as a particular
child and in a way that prevents even an expert from
concluding that parts of images of real children were
used; or
(C) disguise pictures of real children being abused
by making the image look computer-generated.
(5) Evidence submitted to the Congress, including from the
National Center for Missing and Exploited Children, demonstrates
that technology already exists to disguise depictions of real
children to make them unidentifiable and to make depictions of
real children appear computer-generated. The technology will
soon exist, if it does not already, to computer generate
realistic images of children.
[[Page 117 STAT. 677]]
(6) The vast majority of child pornography prosecutions
today involve images contained on computer hard drives, computer
disks, and/or related media.
(7) There is no substantial evidence that any of the child
pornography images being trafficked today were made other than
by the abuse of real children. Nevertheless, technological
advances since Ferber have led many criminal defendants to
suggest that the images of child pornography they possess are
not those of real children, insisting that the government prove
beyond a reasonable doubt that the images are not computer-
generated. Such challenges increased significantly after the
decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234
(2002).
(8) Child pornography circulating on the Internet has, by
definition, been digitally uploaded or scanned into computers
and has been transferred over the Internet, often in different
file formats, from trafficker to trafficker. An image seized
from a collector of child pornography is rarely a first-
generation product, and the retransmission of images can alter
the image so as to make it difficult for even an expert
conclusively to opine that a particular image depicts a real
child. If the original image has been scanned from a paper
version into a digital format, this task can be even harder
since proper forensic assessment may depend on the quality of
the image scanned and the tools used to scan it.
(9) The impact of the Free Speech Coalition decision on the
Government's ability to prosecute child pornography offenders is
already evident. The Ninth Circuit has seen a significant
adverse effect on prosecutions since the 1999 Ninth Circuit
Court of Appeals decision in Free Speech Coalition. After that
decision, prosecutions generally have been brought in the Ninth
Circuit only in the most clear-cut cases in which the government
can specifically identify the child in the depiction or
otherwise identify the origin of the image. This is a fraction
of meritorious child pornography cases. The National Center for
Missing and Exploited Children testified that, in light of the
Supreme Court's affirmation of the Ninth Circuit decision,
prosecutors in various parts of the country have expressed
concern about the continued viability of previously indicted
cases as well as declined potentially meritorious prosecutions.
(10) Since the Supreme Court's decision in Free Speech
Coalition, defendants in child pornography cases have almost
universally raised the contention that the images in question
could be virtual, thereby requiring the government, in nearly
every child pornography prosecution, to find proof that the
child is real. Some of these defense efforts have already been
successful. In addition, the number of prosecutions being
brought has been significantly and adversely affected as the
resources required to be dedicated to each child pornography
case now are significantly higher than ever before.
(11) Leading experts agree that, to the extent that the
technology exists to computer generate realistic images of child
pornography, the cost in terms of time, money, and expertise
is--and for the foreseeable future will remain--prohibitively
expensive. As a result, for the foreseeable future, it will be
more cost-effective to produce child pornography using real
[[Page 117 STAT. 678]]
children. It will not, however, be difficult or expensive to use
readily available technology to disguise those depictions of
real children to make them unidentifiable or to make them appear
computer-generated.
(12) Child pornography results from the abuse of real
children by sex offenders; the production of child pornography
is a byproduct of, and not the primary reason for, the sexual
abuse of children. There is no evidence that the future
development of easy and inexpensive means of computer generating
realistic images of children would stop or even reduce the
sexual abuse of real children or the practice of visually
recording that abuse.
(13) In the absence of congressional action, the
difficulties in enforcing the child pornography laws will
continue to grow increasingly worse. The mere prospect that the
technology exists to create composite or computer-generated
depictions that are indistinguishable from depictions of real
children will allow defendants who possess images of real
children to escape prosecution; for it threatens to create a
reasonable doubt in every case of computer images even when a
real child was abused. This threatens to render child
pornography laws that protect real children unenforceable.
Moreover, imposing an additional requirement that the Government
prove beyond a reasonable doubt that the defendant knew that the
image was in fact a real child--as some courts have done--
threatens to result in the de facto legalization of the
possession, receipt, and distribution of child pornography for
all except the original producers of the material.
(14) To avoid this grave threat to the Government's
unquestioned compelling interest in effective enforcement of the
child pornography laws that protect real children, a statute
must be adopted that prohibits a narrowly-defined subcategory of
images.
(15) The Supreme Court's 1982 Ferber v. New York decision
holding that child pornography was not protected drove child
pornography off the shelves of adult bookstores. Congressional
action is necessary now to ensure that open and notorious
trafficking in such materials does not reappear, and even
increase, on the Internet.
SEC. 502. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD
PORNOGRAPHY.
(a) Section 2256(8) of title 18, United States Code, is amended--
(1) so that subparagraph (B) reads as follows:
``(B) such visual depiction is a digital image,
computer image, or computer-generated image that is, or
is indistinguishable from, that of a minor engaging in
sexually explicit conduct; or'';
(2) by striking ``; or'' at the end of subparagraph (C) and
inserting a period; and
(3) by striking subparagraph (D).
(b) Section 2256(2) of title 18, United States Code, is amended to
read as follows:
``(2)(A) Except as provided in subparagraph (B), `sexually
explicit conduct' means actual or simulated--
[[Page 117 STAT. 679]]
``(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;
``(B) For purposes of subsection 8(B) of this section,
`sexually explicit conduct' means--
``(i) graphic sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex, or
lascivious simulated sexual intercourse where the
genitals, breast, or pubic area of any person is
exhibited;
``(ii) graphic or lascivious simulated;
``(I) bestiality;
``(II) masturbation; or
``(III) sadistic or masochistic abuse; or
``(iii) graphic or simulated lascivious exhibition
of the genitals or pubic area of any person;''.
(c) Section 2256 is amended by inserting at the end the following
new paragraphs:
``(10) `graphic', when used with respect to a depiction of
sexually explicit conduct, means that a viewer can observe any
part of the genitals or pubic area of any depicted person or
animal during any part of the time that the sexually explicit
conduct is being depicted; and
``(11) the term `indistinguishable' used with respect to a
depiction, means virtually indistinguishable, in that the
depiction is such that an ordinary person viewing the depiction
would conclude that the depiction is of an actual minor engaged
in sexually explicit conduct. This definition does not apply to
depictions that are drawings, cartoons, sculptures, or paintings
depicting minors or adults.''.
(d) Section 2252A(c) of title 18, United States Code, is amended to
read as follows:
``(c) It shall be an affirmative defense to a charge of violating
paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) that--
``(1)(A) the alleged child pornography was produced using an
actual person or persons engaging in sexually explicit conduct;
and
``(B) each such person was an adult at the time the material
was produced; or
``(2) the alleged child pornography was not produced using
any actual minor or minors.
No affirmative defense under subsection (c)(2) shall be available in any
prosecution that involves child pornography as described in section
2256(8)(C). <<NOTE: Deadline.>> A defendant may not assert an
affirmative defense to a charge of violating paragraph (1), (2), (3)(A),
(4), or (5) of subsection (a) unless, within the time provided for
filing pretrial motions or at such time prior to trial as the judge may
direct, but in no event later than 10 days before the commencement of
the trial, the defendant provides the court and the United States with
notice of the intent to assert such defense and the substance of any
expert or other specialized testimony or evidence upon which the
defendant intends to rely. If the defendant fails to comply
[[Page 117 STAT. 680]]
with this subsection, the court shall, absent a finding of extraordinary
circumstances that prevented timely compliance, prohibit the defendant
from asserting such defense to a charge of violating paragraph (1), (2),
(3)(A), (4), or (5) of subsection (a) or presenting any evidence for
which the defendant has failed to provide proper and timely notice.''.
SEC. 503. CERTAIN ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR
CONTAINING CHILD PORNOGRAPHY.
Section 2252A of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by striking paragraph (3) and inserting the
following:
``(3) knowingly--
``(A) reproduces any child pornography for
distribution through the mails, or in interstate or
foreign commerce by any means, including by computer; or
``(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;'';
(B) in paragraph (4), by striking ``or'' at the end;
(C) in paragraph (5), by striking the comma at the
end and inserting ``; or''; and
(D) by adding after paragraph (5) the following:
``(6) knowingly distributes, offers, sends, or provides to a
minor any visual depiction, including any photograph, film,
video, picture, or computer generated image or picture, whether
made or produced by electronic, mechanical, or other means,
where such visual depiction is, or appears to be, of a minor
engaging in sexually explicit conduct--
``(A) that has been mailed, shipped, or transported
in interstate or foreign commerce by any means,
including by computer;
``(B) that was produced using materials that have
been mailed, shipped, or transported in interstate or
foreign commerce by any means, including by computer; or
``(C) which distribution, offer, sending, or
provision is accomplished using the mails or by
transmitting or causing to be transmitted any wire
communication in interstate or foreign commerce,
including by computer,
for purposes of inducing or persuading a minor to participate in
any activity that is illegal.''; and
(2) in subsection (b)(1), by striking ``paragraphs (1), (2),
(3), or (4)'' and inserting ``paragraph (1), (2), (3), (4), or
(6)''.
SEC. 504. OBSCENE CHILD PORNOGRAPHY.
(a) In General.--Chapter 71 of title 18, United States Code, is
amended by inserting after section 1466 the following:
[[Page 117 STAT. 681]]
``Sec. 1466A. Obscene visual representations of the sexual abuse
of children
``(a) In General.--Any person who, in a circumstance described in
subsection (d), knowingly produces, distributes, receives, or possesses
with intent to distribute, a visual depiction of any kind, including a
drawing, cartoon, sculpture, or painting, that--
``(1)(A) depicts a minor engaging in sexually explicit
conduct; and
``(B) is obscene; or
``(2)(A) depicts an image that is, or appears to be, of a
minor engaging in graphic bestiality, sadistic or masochistic
abuse, or sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between persons of
the same or opposite sex; and
``(B) lacks serious literary, artistic, political, or
scientific value;
or attempts or conspires to do so, shall be subject to the penalties
provided in section 2252A(b)(1), including the penalties provided for
cases involving a prior conviction.
``(b) Additional Offenses.--Any person who, in a circumstance
described in subsection (d), knowingly possesses a visual depiction of
any kind, including a drawing, cartoon, sculpture, or painting, that--
``(1)(A) depicts a minor engaging in sexually explicit
conduct; and
``(B) is obscene; or
``(2)(A) depicts an image that is, or appears to be, of a
minor engaging in graphic bestiality, sadistic or masochistic
abuse, or sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between persons of
the same or opposite sex; and
``(B) lacks serious literary, artistic, political, or
scientific value;
or attempts or conspires to do so, shall be subject to the penalties
provided in section 2252A(b)(2), including the penalties provided for
cases involving a prior conviction.
``(c) Nonrequired Element of Offense.--It is not a required element
of any offense under this section that the minor depicted actually
exist.
``(d) Circumstances.--The circumstance referred to in subsections
(a) and (b) is that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or in
interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction by the mail, or in interstate or foreign
commerce by any means, including by computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or
[[Page 117 STAT. 682]]
was produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce by
any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.
``(e) Affirmative Defense.--It shall be an affirmative defense to a
charge of violating subsection (b) that the defendant--
``(1) possessed less than 3 such visual depictions; and
``(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any such visual depiction--
``(A) took reasonable steps to destroy each such
visual depiction; or
``(B) reported the matter to a law enforcement
agency and afforded that agency access to each such
visual depiction.
``(f) Definitions.--For purposes of this section--
``(1) the term `visual depiction' includes undeveloped film
and videotape, and data stored on a computer disk or by
electronic means which is capable of conversion into a visual
image, and also includes any photograph, film, video, picture,
digital image or picture, computer image or picture, or computer
generated image or picture, whether made or produced by
electronic, mechanical, or other means;
``(2) the term `sexually explicit conduct' has the meaning
given the term in section 2256(2)(A) or 2256(2)(B); and
``(3) the term `graphic', when used with respect to a
depiction of sexually explicit conduct, means that a viewer can
observe any part of the genitals or pubic area of any depicted
person or animal during any part of the time that the sexually
explicit conduct is being depicted.''.
(b) Technical and Conforming Amendment.--The table of sections at
the beginning of such chapter is amended by inserting after the item
relating to section 1466 the following new item:
``1466A. Obscene visual representations of the sexual abuse of
children.''.
(c) Sentencing <<NOTE: 18 USC 1466A note.>> Guidelines.--
(1) Category.--Except as provided in paragraph (2), the
applicable category of offense to be used in determining the
sentencing range referred to in section 3553(a)(4) of title 18,
United States Code, with respect to any person convicted under
section 1466A of such title, shall be the category of offenses
described in section 2G2.2 of the Sentencing Guidelines.
(2) Ranges.--The <<NOTE: 28 USC 994 note.>> Sentencing
Commission may promulgate guidelines specifically governing
offenses under section 1466A of title 18, United States Code, if
such guidelines do not result in sentencing ranges that are
lower than those that would have applied under paragraph (1).
SEC. 505. ADMISSIBILITY OF EVIDENCE.
Section 2252A of title 18, United States Code, is amended by adding
at the end the following:
``(e) Admissibility of Evidence.--On motion of the government, in
any prosecution under this chapter or section 1466A, except for good
cause shown, the name, address, social security number, or other
nonphysical identifying information, other than the age or approximate
age, of any minor who is depicted in any
[[Page 117 STAT. 683]]
child pornography shall not be admissible and may be redacted from a |