By Patrick A. Trueman, Legal Counsel AFA, Washington, D.C.
November-December 1993 – The Justice Department has moved to weaken the federal child pornography law. In a case before the U.S. Supreme Court, Knox v. U.S., in which a twice-convicted child pornographer seeks review of his latest conviction, the Department sets out its interpretation of the law—one that is a marked departure from that of previous administrations. The Depart-ment’s actions have set off a firestorm in Congress and threaten to be a major embarrassment to Attorney General Janet Reno, who has made sexual abuse of children a top priority of the Justice Department.
In its brief before the high court the Department argues that to be illegal child pornography: 1) the material must depict a child lasciviously engaged in sexual conduct; and 2) the body parts of the child must be nude or visible.
AFA has led efforts to get Attorney General Reno to back off this new interpretation. In a letter to every Congressman on September 28, 1993, we pointed out that on these two points the Department contradicts its own position in this very case in the lower courts. The Department, by its actions, writes a recipe for “legal” child pornography—that which it will not prosecute during the Clinton Administration.
In our letter we also pointed out that the federal child pornography law is very clear: whether a photo or videotape is “lascivious” (which is a requirement of the statute) refers to whether the material is intended to elicit a sexual response from the viewer, rather than to the actions of the child. Under the Department’s view, for example, sexually explicit photos of a sleeping child would be legal because the child did not act lasciviously. Much, if not most, of the child pornography prosecuted in the past could no longer be prosecuted under this interpretation.
A “nudity” requirement was considered but rejected by Congress in drafting the law, AFA pointed out in its letter to Congress, citing the legislative history of the child pornography law. The videos in the Knox case involved sexually explicit, but not completely nude depictions of children. Knox himself acknowledged in the case that the videos were “lascivious” but argued that because the children were not nude no violation of the law occurred. The Department of Justice now seems to agree.
Congress has been eager to respond to AFA’s request. On October 19, a bipartisan letter was sent to Attorney General Reno signed by 126 members of the U.S. House of Representatives. In it, the members demanded that Reno abandon the position taken by the Department in the high court. A press conference was held on the same day at the Capitol led by Representatives John Doolittle (R-CA) and Chris Smith (R-NJ) to announce the letter to Attorney General Reno.
Others in Congress, such as Representatives Henry Hyde (R-IL) and Robert Dornan (R-CA), sent individual letters to Attorney General Reno soon after receiving the AFA letter. U.S. Senator Charles Grassley (R-IA) spoke on the floor of the United States Senate. He is also having a brief to the Supreme Court written on behalf of himself and numerous members of Congress, arguing a strong position in defense of the federal child pornography law. Congressmen John Doolittle and Gerald Solomon (R-NY) spoke against the actions of the Department on the floor of the House of Representatives. A “Sense of the House of Representatives” resolution will be proposed as an amendment to the crime bill setting forth the position of supporters of the resolution that the Justice Department is wrong and urging vigorous prosecution of child pornography.
Those wishing to express their views on this matter should contact their Congressman or Senators and also contact Attorney General Janet Reno by letter or phone. Her address is U.S. Department of Justice, 10th and Constitution N.W., Washington, D.C. 20530. Her phone number at the Department of Justice is 202-544-2001. 
Editor’s Note: Mr. Trueman is the former head of the Justice Department’s Child Exploitation and Obscenity Section.
