TESTIMONY OF BRENT D. WARD, UNITED STATES ATTORNEY, DISTRICT OF UTAH, AND H. ROBERT SHOWERS, EXECUTIVE DIRECTOR, NATIONAL OBSCENITY ENFORCEMENT UNIT, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE Mr. WARD. Yes, I do. Mr. HUGHES. Without objection, that will be made a part of the record. You may proceed as you see fit, Mr. Ward. Mr. WARD. Thank you. On behalf of Mr. Showers, I would like to apologize for the lateness of the statement. Mr. Chairman, my name is Brent Ward and I am the United States Attorney for the District of Utah. I am also Chairman of a subcommittee of U.S. Attorneys dealing with the subjects of child pornography, obscenity and organized crime which permeates this industry. I am here today at your invitation, and pleased to be here to speak in support of H.R. 3889, which the President proposed last November under the heading of the "Child Protection and Obsceni ty Enforcement Act of 1987.' Historically, Federal prosecutions of both adult obscenity and child pornography have been sporadic and infrequent. In fact, until 1984 Federal prosecutions for child pornography were almost nonexistent. Meanwhile, in July 1986, the Attorney General's Commis sion on Pornography reported that very few prosecutions of adult obscenity were taking place at the Federal level. Lately, I am happy to report, U.S. Attorneys have been more active in this area. I am happy to report that in the past 2 years alone, every one of the 93 U.S. Attorneys has been involved in child pornography prosecutions. At the same time, prosecutions for adult obscenity have gone up. At least 45 U.S. Attorneys-that's about half the total-are now actively pursuing adult obscenity prosecutions. As we have entered this arena, we have learned Mr. MAZZOLI. Mr. Chairman, could I ask the gentleman to go back? Mr. HUGHES. Yes. Mr. MAZZOLI. You said that there were prosecutions in 93 of the districts. Is that the entire country? Are there are only 93? Mr. WARD. Yes. Mr. MAZZOLI. Which suggests that this is that broad reach? Mr. WARD. Yes, there's no question about it. This material is being mailed, for example, into every district on a regular basis. Mr. Mazzoli. Thank you very much. I thought I might have misread that. That's pretty remarkable stuff. Mr. WARD. We have learned a couple of lessons as we have gotten into this area-for the first time at the Federal level, in many years, if not period. One thing is that pornography has become a $7 to $10 billion a year industry in the United States. And as market power in the public marketplace for sexually-oriented material has gravitatedas it has over the past 20 years-into the hands of a relatively few number of enterprises, the pornography industry has become less and less responsive to local and State law enforcement. This has made Federal obscenity enforcement not only unavoidable, but in my opinion, absolutely necessary. The second thing we have learned is that in recent years the means of distributing pornography have changed dramatically. Driven by avarice the purveyors of pornography are seizing upon and utilizing every new development in communications technology to distribute more material that is more graphic and violent to more people for more money. Whereas, yesterday obscenity was confined largely to the seedy theater and bookstore, today it's as close as the VCR, or the television, or the personal computer, or the telephone. And whereas yesterday, children were protected in some meaningful sense by the caution "Adults Only, no one under 18 permitted," today they are exceedingly vulnerable and no warning is going to help. Meanwhile, Federal obscenity laws, most of which trace their roots to the late 19th century, have become obsolete. That's one reason why passage of this bill is important—to put us on an equal footing with the businesses engaged in the dissemination of criminally obscene material. With this background let me just address a few provisions of the bill which are of great importance to U.S. Attorneys. I can assure you that if these provisions pass the Congress, they will be pressed into service immediately by U.S. Attorneys across the country. There is a recordkeeping requirement for producers of obscenity, which would require them to keep records of the actual age and identity of performers used in the production of the materials. Distributors would be required to display the location where those records are found as part of the material that is distributed. This recordkeeping requirement would be an added burden but only for producers of material which by its very nature poses a serious risk of harm to children. If I could digress for just a moment, I have on my mind the crimes of a person by the name of Arthur Gary Bishop, who was executed in Salt Lake City last Friday-and whose crimes are among the most despicable crimes, the most ugly crimes I have ever heard of. He molested and killed five young boys and was convicted of the murder of those children. It has since been discovered that he molested between 80 and 100 boys, and that he utilized pornography in the commission of those crimes. I would like to quote briefly from a letter Mr. Bishop wrote not long before he was executed. He said, "I am a homosexual pedophile convicted of murder, and pornography was a determining factor in my downfall. Seeing pornography was like lighting a fuse on a stick of dynamite. I became stimulated and had to gratify my urges or explode. The day came when I invited a small neighborhood boy to my apartment, molested him, and then killed him in fear of being caught. Pornography wasn't the only negative influence in my life but its effect on me was devastating." I think that's indicative of why we need to strengthen our child pornography laws. There are some syndicate buster amendments in this bill, Mr. Chairman, which are intended to plug certain loopholes in existing law which unnecessarily tilt the scales in favor of defendants in Federal prosecutions of adult obscenity. For example, under present law, prosecutors are required to prove that obscene material actually travelled in interstate commerce in order to satisfy the jurisdictional requirement essential for Federal prosecution. It may be necessary in some cases-and I know this from my experience to show exactly when, how, and where the material crossed a State line in order to satisfy this jurisdictional requirement under existing law. One provision of this bill would make it possible to prove this interstate nexus by showing merely that the material was produced or manufactured in one State and was later purchased in another State. That would give rise to a rebuttable presumption that this interstate commerce requirement was satisfied. This is just good common sense. And if this presumption were not rebutted, then we wouldn't have to go to the further extent of offering detailed evidence as to how, when, and where the material travelled across a State line. In fact, it has been our experience, Mr. Chairman, as U.S. Attorneys, that the present requirement of specific proof of that kind is a weakness in the law which is being systematically exploited by pornography companies. By using a variety of commercial carriers, for example, by transporting the material by private conveyance, by falsifying, destroying or failing to keep records of transportation, they are able to obstruct and evade prosecution under existing law. The bill would also authorize both criminal and civil forfeitures in obscenity cases, and Mr. Showers will address this more in detail. But it's safe to say that this kind of remedy in drug cases is proving to be the biggest boost of Federal drug law enforcement in recent years and the same would be true in the obscenity area. These criminal enterprises have simply grown so large that the removal of current management from any given organization or enterprise engaged in the distribution of criminally obscene material-and that's what we are talking about here-often has no real effect on the operation of the business. It's business as usual-new people take the management positions and business goes on. We are just not likely to have any lasting influence in this area without the ability to seize and forfeit assets under carefully regulated and constitutionally permissible conditions. In effect, the bill proposes procedures for seizure and forfeiture which are virtually identical with those that are part of our drug statutes today. Finally, this bill contains some new technology provisions, which I think would be helpful. I would like to draw your special attention to the dial-a-porn provisions. I speak to you now as the only U.S. Attorney to ever prosecute a dial-a-porn case, and to gain a conviction. The fact that I have been alone in bringing these prosecutions is not so much a sign of disinterest by the Department of Justice, because I have talked with many fellow U.S. Attorneys who would like to pursue cases-but it is an indication instead that the law heretofore has been inadequate. The courts have said as much. A recent attempt was made by the Congress to cure that problem by passage of the Helms-Bliley bill, recently signed into law by President Reagan. However, even this bill is seriously deficient, in my opinion, in one important respect. Under this law obscene diala-porn messages would be punishable only as misdemeanors. When the bill was before the Congress, the Department of Justice strongly urged that obscene messages be made punishable as a felony. This would bring the penalty for this obscenity offense into line with the penalties for all other Federal obscenity offenses. Our experience demonstrates that misdemeanor treatment, even when accompanied by substantial fines, simply lacks the necessary deterrent effect in this lucrative dial-a-porn area. Furthermore, I know that U.S. Attorneys would be more apt to prosecute dial-a-porn if they know that the substantial effort required to do so will result in felony convictions and an increased likelihood of deterrence. So we would urge that House bill 3889 be modified to make obscene dial-a-porn a felony offense. I appreciate this opportunity to present testimony. I am convinced that passage of this bill, Mr. Chairman, will place into the hands of U.S. Attorneys the tools to be more effective in the enforcement of obscenity laws. If you give us the tools, I promise you we will put them to work. Thank you. Mr. HUGHES. Thank you, Mr. Ward. |