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The bill would delete from sections 2421, 2422, and 2424 of Title 18, United States Code, which proscribe interstate transportation for prostitution and similar purposes, references to the feminine gender. It thus will extend the protection of these statutes to males.

Finally, the bill would amend two aspects of the definition of "prohibited sexual conduct" in 18 U.S.C. 2423. Section 2423 prohibits the interstate transportation of minors for prostitution or other commercial sexual activity. As amended, the definition in section 2423 will be identical with that in 18 U.S.C. 2255 after its amendment by this bill. The bill also amends 18 U.S.C. 2423 by broadening its coverage to include those who transport minors in interstate commerce with the intent that the minors engage in sexual conduct which will be recorded and distributed, whether for commercial gain or not.

II.

The Department of Justice supports the proposed creation of an offense for the mailing or interstate shipment of advertisements for child pornography. Section 2252 makes illegal the mailing or interstate transportation of child pornography, and it would be entirely consistent with the overall statutory scheme of the child pornography laws to make criminal the mailing of advertisements for such material. Indeed, such a provision would be consistent with 18 U.S.C. 1461, which makes criminal the mailing of advertisements for obscene material as well as the mailing of the obscene material itself.

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The Department also endorses proscribing the mailing or

interstate shipment of proposals to engage in sexual conduct with a minor. Sexual abuse of children is a matter that traditionally has been dealt with by local child abuse or sex offense statutes. However, there is ample statutory precedent for federal involvement in essentially local criminal conduct where the mails or facilities of interstate commerce are used. For instance, 18 U.S.C. 875 makes criminal the interstate communication of a kidnapping threat, and 18 U.S.C. 1084 makes it a criminal offense to use a wire communication facility for the transmission in interstate or foreign commerce of wagering information. It is the interstate commerce aspect that provides the basis for federal jurisdiction in these statutes, and that same basis would be available here, as well as use of the mails. It is as appropriate for the Federal Government to assert jurisdiction over facilitation of acts of child molestation by use of the mails or facilities of interstate commerce as it is for the Federal Government to assert jurisdiction over facilitation of the crimes which underlie existing statutes.

III.

While we support S. 2398, we believe that several minor modifications would improve it from the standpoint of future prosecutions. First, we recommend that proposed 18 U.S.c. $ 2251 (c) be amended to distinguish clearly between the two alternative bases for jurisdiction: 1) knowledge or reason to know, on the part of the violator, that the advertisements will be shipped in interstate or foreign commerce or mailed, and

2) actual shipment or mailing. As currently drafted, subparagraph (B) may be misconstrued to require a showing that the defendant knew or had reason to know that the advertisement had actually moved interstate or been mailed. This part of the bill should be restructured to assure that the knowledge requirement applies only to future transportation or mailing of Such an amendment would be consistent with

the advertisment.

present section 2251.

We also recommend revision of another aspect of the bill's knowledge requirement in proposed section 2251 (c). The bill requires that the violator know or have reason to know that the advertisement is for material which, in fact, depicts sexual conduct involving a minor or offers participation in sexual activity with a minor. A court could interpret this to mean that the government must prove the violator knew the age of an involved minor or that the material was violative of the statute. This burden of proof would be extremely difficult to carry. This difficulty could be cured by deleting proposed subparagraph (c) (2) (A), ̄ inserting "knowingly" before the word "makes" in the first line of proposed subsection (c), and stating in the legislative history that "knowingly" only requires the government to show that the violator was aware of the general nature and character of the material and specifically does not require the government to prove the violator knew the age of the minor involved. This issue arose in connection with the original child pornography legislation that was enacted in 1978, and such a

clarification would be consistent with the legislative history of

that statute.

We also suggest that the words "which involved or would involve in its production" be substituted for "involving" in subparagraph (c)(1). This would make it clear that the provision is aimed at actual child abuse and would parallel the language of present 18 U.S.C. 2251 and 2252. As drafted, the language could support an interpretation that advertisements for drawings or paintings of imaginary children are banned. Such an overbroad, though unintended, interpretation would, in our opinion, render the statute constitutionally vulnerable. See New York v. Ferber, 458 U.S. 747, 764-65 (1982).

One further amendment of proposed section 2251(c) we recommend concerns advertisements "offering participation in any act of sexually explicit conduct with any minor." We believe the word "participation . . . with" may be misinterpreted to exclude forms of "sexually explicit conduct" as defined in section 2255, which do not involve the actual partcipation of any person other than the minor. Thus, we recommend amending proposed section 2251 (c) (2) to read: "seeking a minor to engage in sexually explicit conduct."

The Department also resommends a modification of section 5 of S. 2398, amending 18 U.S.C. 2423. Specifically, while we support broadening section 2423 to cover the noncommercial activities of visual recording and distributing as proposed, we would go further. We have little doubt that much transporation

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if such through "by any Those who transport children sexual pleasure should be

of children across state lines for sexual activity is for personal gratification and not commercial gain. We believe the commercial restrictions presently in 18 U.S.C. 2423 should be entirely eliminated, by deleting person" in 18 U.S.C. 2423 (a) (2) . across state lines for their own prosecutable, whether they film the activities or not. The Department recommended that section 2423 cover noncommercial transportation of children for sexual purposes when this statute was under consideration in 1977 and when it was subsequently amended by Public Law 95-225 (February 6, 1978). We continue to adhere to the views we expressed then.

The Department has no objection to making sections 2421, 2422, and 2424 of Title 18 gender neutral. We would point out that section 2423, which is already gender neutral, would cover, if amended as we propose, the kinds of sexual activity involving children sought to be covered by these other statutes. The latter statute is directed specifically at minors, while the other three, if amended as proposed, would cover all persons. I am grateful for the opportunity to present the Department's views on this important piece of legislation.

DOJ-1986-08