TABLE 3

CYCLE

One of the most common questions asked from a public that knows very little about child pornography is: "How does child pornography begin?" This diagram explains one of the most common ways a child is introduced to pornographic activity:

SOURCE:

S. O'Brien, Child Pornography, 89,
(1983).

617

RECOMMENDATION 37:

CONGRESS SHOULD ENACT A STATUTE REQUIRING THE PRODUCERS, RETAILERS OR DISTRIBUTORS OF SEXUALLY EXPLICIT VISUAL DEPICTIONS

TO MAINTAIN RECORDS CONTAINING CONSENT FORMS AND PROOF OF

PERFORMERS' AGES.

Pornographers use minors as performers in films and other 458 visual depictions. The consumer demand for youthful performers has also created a class of pornography referred to as

pseudo child pornography.459

The growth of pseudo child

pornography has made it increasingly difficult for law enforcement officers to ascertain whether an individual in a film or other visual depiction is a minor.

Minors deserve special protection from the risks inherent

458

See, The discussion of performers in Part Four.

459 Pseudo child pornography or "teasers" involve women allegedly over the age of eighteen who are "presented in such a way as to make them appear to be children or youths. Models used in such publications are chosen for their youthful appearence (e.g., in females, slim build and small breasts); and are presented with various accoutrements designed to enhance the illusion of immaturity (e.g., hair in ponytails or ringlets, toys, teddy bears, etc.).

'Pseudo child pornography' is of concern since it may appeal to the same tastes and may evoke responses similar or identical to those elicited by true child pornography. However, it is distinct from, and is not 'genuine' child pornography in the sense that it is older adolescents or adults who are displayed in these sexually explicit depictions. It is not individual children who have been directly exploited in the making of such materials. Committee on Sexual Offences Against Children and Youth, 2 Sexual Offences Against Children, 1192 (1984). [hereinafter cited as Sexual Offences Against Children].

is

in the production of pornographic materials.460 The performers may be subjected to threats and coercion, provided with controlled substances or exposed to a variety of sexually transmitted diseases.461 The Child Protection Act of 1984462 designed to prohibit employing, using, persuading, inducing, enticing, or coercing any minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct. 463

This proposed legislation should afford protection to minors through every level of the pornography industry. The recordkeeping obligation should be imposed on wholesalers, retailers, distributors, producers and any one engaged in the sale or trade of sexually explicit material as described by the Child Protection Act.

The concern to be addressed through this legislation is the safety and well-being of children. The current law contains gaps which allows the exploitation of minors to continue. Legislation should be drafted to close the gaps and afford children full protection in every phase of the production and distribution of sexually explicit materials.

Producers would be required to obtain proof of the age of the performer and record the same on a signed release form if the

460 See, New York v. Ferber, 458 U.S. 758 (1982).

461 See, The discussion of performers, infra.

performer engages in any sexual act which would be in violation 464

of The Child Protection Act.

Despite the umbrella protection provided by the Child Protection Act of 1984, loopholes remain that permit the continued exploitation of children. For example, experts and law enforcement officers have found it difficult to extend this protection because in many instances, ascertaining the real ages of adolescent performers is impossible. By viewing a visual depiction, how does one decide if the performer is fourteen or eighteen, seventeen or twenty-one? The growth of the category of pseudo child pornography has further confused the issue.

The above legislation will assist officials in assuring the safety and well being of children.

The recomended legislation would require producers to 465 obtain release forms from each performer with proof of age. The forms would be filed at a specified location listed in the opening or closing footage of a film, the inside cover of the magazine or standard locations in or on other material containing visual depictions.466

464 Producers may fullfill the proof of age requirement through obtaining a driver's license, birth certificate or other verifiable and acceptable form of age documentation.

465 The release forms should also include the stage names of the performers as well as any other aliases the performer may use, fingerprints to avoid forgery or fraudulent certification and the last known address and telephone number for the purpose of verification.

"I think consent is a very important part of we all want to increase volunteerism and decrease consent whether that be by models or purchasers of

467

The

The name, offical title and location of the responsible person or corporate agent supervising such records would also be listed to avoid use of corporate shields. The release forms should be available for inspection by any duly authorized law enforcement officer upon demand as a regulatory function for the limited purposes of determining consent and proof of age. information contained in these records should not be used as evidence of obscenity or related offenses in a grand jury proceeding or by a petit jury or trier of fact, but should only be used for prosecution of this offense. This exception from use in evidence is necessary to secure compliance by the largest number of persons and avoid Fifth Amendment problems.

A producer should be required to maintain these records for a minimum period of five years.468 Failure to comply with any of these requirements would be punishable as a felony. This legislation would not only protect minors from abuse, but it would also place the burden of ensuring this protection was implemented squarely on the producers of the materials. The proposed legislation would serve a record keeping purpose

magazines."

New York Hearing, Vol. II, Alan Dershowitz, p. 312.

467 This inspection requirement would be similar to the inspection provision included in section 3007 of the Resource Conservation Recovery Act of 1976, as amended in that search warrant would not be necessary for routine examination of records.

468 The five year requirement would commence the date the film was released or the magazine was distributed.