pornography cases and would lead to effective methods to curb the flow of child pornography and the continued sexual abuse of children.521

RECOMMENDATION 43:

CONGRESS SHOULD ENACT LEGISLATION TO MAKE THE ACTS OF CHILD SELLING OR CHILD PURCHASING, FOR THE PRODUCTION OF SEXUALLY EXPLICIT VISUAL DEPICTIONS, A FELONY.

Federal prosecutors have been frustrated in their attempts to convict child buyers under the existing laws because purchasing or selling a child is not presently a crime. 522 In one case involving the sale of children for use in the production of pornography the only resort was for the Assistant United States Attorney to prosecute the offender for an immigration

violation.523

Specific legislation would provide additional protection for children and curb the production and distribution of child pornography. Federal prosecutors would have an additional tool available to further the goal of child protection.

521 This data base should be coordinated with the information system recommended to law enforcement agencies.

522

523

Miami Hearing, Vol. II, Joyce Karlin, p. 170.

Id.

B. RECOMMENDATIONS FOR STATE LEGISLATION

RECOMMENDATION 44:

STATE LEGISLATURES SHOULD AMEND, IF NECESSARY, CHILD PORNOGRAPHY

STATUTES TO INCLUDE FORFEITURE PROVISIONS.

For a general discussions of the use of forfeiture provisions, see, Chapter 2 of this Part.

RECOMMENDATION 45:

STATE LEGISLATURES SHOULD AMEND LAWS, WHERE NECESSARY, TO MAKE

THE KNOWING POSSESSION OF CHILD PORNOGRAPHY, A FELONY.

The United States Supreme Court has called child pornography "a serious national problem. "524 In New York v. Ferber, the Court said that child pornography constitutes a permanent record of the children's participation in sexual activity, and the circulation of the pornography exacerbates the harm to the children. If the sexual abuse of children in pornography is to be curtailed the production and distribution network must be eliminated.525

Investigators have identified several uses of child

pornography.

524

The first use by pedophiles is for sexual arousal

New York v. Ferber, 458 U.S. 747, 749(1982).

and gratification.526

While some pedophiles only collect child

pornography and fantasize through it, many have used it as a device to aid in the production of their own child pornography.

Child pornography is often used as part of a method of seducing child victims.527 A child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having "fun" participating in the activity. From a very early

age children are taught to respect and believe material contained in books and will thus have the same beliefs about child pornography.529

A pedophile offender will use child pornography in which the 530 children appear to be having a good time. The offender uses this material to lower the inhibitions of the child and entice him or her into a desired activity. Children who view this material are also subject to a certain amount of peer pressure as they see other children engaged in the activity.

Child pornography is also used to illustrate the activities

526 K. Lanning, Collectors, in Child Pornography and Sex Rings 86(A. Wolbert Burgess ed. 1984).

528 U.S. Department of Justice, Federal Bureau of Investigation, Child Molesting: A Behavorial Analysis for Law Enforcement 61 (1986).

in which the pedophile wishes a child to engage.531 In such instances a pedophile offender shows the child the pornography and asks the child to imitate the pictures.

Pornographic depictions of a child may be used to blackmail the child.532 The pedophile offender will use the pictures to intimidate the child. The pedophile offender will threaten the child with showing the pictures to others if the child does not

cooperate.

Child pornography is also seen as a valuable commodity among pedophiles. Visual depictions may be traded or sold between collectors.533 This subjects a child to repeated victimization by countless numbers of pedophiles and makes the child the object of the pedophile's sexual fantasies.534 Child pornography which may have orginated as a homemade item may eventually be sold to a commercial child pornography publication.535

Child pornography has a life of its own. It is a permanent record of the victimization and sexual abuse of the child.536

531 Child pornography magazines frequently include pictures of children viewing child pornography and replicating the poses or scenes depicted therein. Miami Hearing, Vol. I, R.P. "Toby" Tyler, p. 176A4.

532

Miami Hearing, Vol. II, Paul Der Ohannesian II, p. 51; See also, K. Lanning, Collectors, in Child Pornography and Sex Rings 86(A. Wolbert Burgess ed. 1984).

533 K. Lanning, Collectors, in Child Pornography and Sex Rings 86(A. Wolbert Burgess ed. 1984).

536

Miami Hearing, Vol. I, William Dworin, p. 30.

The depictions are timeless and may be distributed and circulate throughout the world for years after they are initially created Each time the pornography is exchanged the children involved are victimized again.537

The harms to children from child pornography which the Supreme Court outlined in New York v. Ferber occur as a result of the existence of the material itself.538 The enactment of criminal penalties for the possession of child pornography is essential if these harms are to be effectively curtailed.

Several states have recently recognized the inherent harm in child pornography and have enacted legislation prohibiting the possession of such material.539 Only recently has this type of

537

Washington, D.C., Vol. II, John,

p. 47-48.

538

458 U.S. 747(1982).

539

fication knowingly:

See, e.g., "Sexual exploitation of a minor; classıA. A person commits sexual exploitation of a minor by

1.

Recording, filming, photographing, developing or duplicating any visual or print medium in which minors are engaged in sexual conduct.

Distributing, transporting, exhibiting, receiving, selling, purchasing, possessing or exchanging any visual or print medium in which minors are engaged in sexual conduct. B. Sexual exploitation of a minor is a class 2 Ariz. Rev. Stat. Ann. S13-3553(1984);

felony."

"A person who has in possession a photographic representation of sexual conduct which involves a minor, knowing or with reasons to know its content and character and that an actor or photographic subject in it, is guilty of a gross misdemeanor." Minn. Stat. S617.247(1984);

"A person who knowingly and willfully has in his possession any film, photograph or other visual presentation