Child Protection,                                                   Exploitation, and                                     ...
Prosecuting Web-based ObscenityCasesBenjamin Vernia                                                       Internet is used...
most frequently visited Web sites, they perm it                    it illegal to use a misleading domain name toadvertiser...
Adobe Acrobat. Both programs can create a copy                       those typically availab le at homes and smallof the W...
server is operating. Notably, Web sites selling                         Despite the challenges of searching the Webobscene...
issue a valid ind ictment based solely on an agents                California, where the defendants formed thedescription ...
Although the Supreme Court has yet to weigh                   at 590-91 (Breyer, J., concurring) (stating thatin on the fo...
In addition, in a prosecution for conspiracy to                Therefore, USSG §2G3.1 (Mailing orviolate 18 U.S .C. § § 14...
The Aftermath of Free Speech: A NewDefinition for Child PornographyBrian Slocum                                           ...
The changes brought about by the PROTECT                        image[s]," and "computer-generated image[s]."Act are inten...
combined effect of these changes is to narrow the                  challenge. Prudence dictates that, until thedefinition ...
real minor); Un ited States v. Hall, 312 F.3d 1250,                       Finally, care should be taken to develop a1260 (...
Sex Trafficking of Minors:International Crisis, Federal ResponseSara L. Gottovi                                           ...
servitude), sweatshops, the military (victims                       prostitution as a way to support themselvesutilized as...
"The U.S. government-wide anti-trafficking                   mandated in the TVPA, for international victimsstrategy is on...
venture which has engaged in an act described                   given or received. 18 U .S.C. § 1591(c)(1).    in violatio...
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
Child Porn Prosecution Darren-Chaker
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Child Porn Prosecution Darren-Chaker

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The Department of Justice prosecutes most large scale child porn cases. Darren Chaker uploads this in depth article about the intricate details prosecutors for the US Attorney to seek and obtain convictions and keep children safe.

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Child Porn Prosecution Darren-Chaker

  1. 1. Child Protection, Exploitation, and Obscenity March 2004 Volume 52 Number 2 In This Issue United States Department of Justice Executive Office for United States Attorneys Office of Legal Education Washington, DC Prosecuting W eb-based O bscenity Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 20535 By Benjamin Vernia and David Szuchman Guy A. Lewis Director The Aftermath of Free Speech: A New Definition of Child Pornography . . 8 Contributors’ opinions and By Brian Slocum and W endy Waldron statements should not be considered an endorsement byEOUSA for any policy, program, Sex Trafficking of Minors: International Crisis, Federal Response . . . . . 12 or service. By Sara L. Gottovi The United States Attorneys’ Bulletin is published pursuant to Establishing the Interstate Nexus in Child Porno graphy Cases . . . . . . . . 18 28 CFR § 0.22(b). By Paul Alm anza The United States Attorneys’ Bulletin is published bi-monthlyby the Executive Office for United Ma king a Child Exploitation Case w ith Com puter Forensics . . . . . . . . . . 24 States Attorneys, Office of Legal By James Fottrell and M ichelle M organ-KellyEducation, 1620 Pendleton Street,Columbia, South Carolina 29201. Periodical postage paid at Washington, D.C. Postmaster: Rescuing Victims of Ch ild Porn ograp hy Throu gh Im age Analysis . . . . . . 30 Send address changes to Editor, By D am on K ing, Michelle Collins, and Jennifer LeeUnited States Attorneys’ Bulletin, Office of Legal Education, 1620Pendleton Street, Columbia, South Effective Use of the M edical Expert in Child Porn ograph y Cases . . . . . . 33 Carolina 29201. By Dr. Sharon W. Cooper and Damon King Managing Editor Jim Donovan Technical Editor Nancy Bowman Intern Courtney Kane Internet Address www.usdoj.gov/usao/reading_room/foiamanuals.htmlSend article submissions toManaging Editor, United StatesAtto rneys’ Bulletin,National Advocacy Center,Office of Legal Educat ion,1620 Pendleton Street,Columbia, SC 29201.
  2. 2. Prosecuting Web-based ObscenityCasesBenjamin Vernia Internet is used to commit the offense.Trial Attorney Additionally, existing obscenity laws, onceChild Exploitation and Obscenity Section developed to address brick-and-mortar retailers,Criminal Division apply equally well to retailers in cyberspace. The recen t addition of new legal tools by Congress to specifically target Internet-based offendersDavid Szuchman complement those existing laws nicely.Trial AttorneyChild Exploitation and Obscenity Section II. Overview of the bu sinessCriminal Division Pornographic Web sites can be classified generally by their content and manner ofI. Introduction conducting business. In terms of content, Web The pornography industry has capitalized on sites may offer explicit heterosexual orthe growth and popularity of the Internet, and homosexual conduct, or may specialize in a fetishparticularly the World W ide Web, as have few which appeals to a small segment of theother businesses. Although estimates of the population. These include "scat" (depicting thevolume of Internet pornography are often use of feces or urine in sexual con duct), bestiality,unreliable, a study from one reputable source sadomasochism, necrophilia, and real or simulatedestimates that "adult" online pornography rape. Alth ough child pornography, as that term isgenerates approximately $1 billion per year in defin ed in 18 U.S .C. C hapter 110, is subject toreven ues, an amount which is expected to grow to obscenity laws as well, this article addresses on lybetween $5 and $7 billion by 2007. Y OUTH , "adult" pornographic W eb sites. There is,P ORNOGRAPHY , AND THE INTERNET , 72 Computer how ever, much overlap in the prosecution of childScience and Telecommunications Board, National and adult pornograph y cases.Research C ouncil (Thornbugh and Lin, eds. Fetish-cen tered Web sites are often small2002). One of the factors contributing to the enterprises, run by one or two individuals (theexplosion of pornography on the Internet is the "webm asters"). Typically, the webm asters of theserelative anonymity that the Internet affords to sites deal in third or fourth-hand pirated copies ofproducers and consumers alike. Equally appealing material originally collected for their personal use.to distributors is the ease and low cost of mass Alth ough some non-fetish W eb sites, particularlydistribution afforded by the Internet. online video catalog sites, are also "mom-and- Opposing these forces are concerned parents, pop" operations, they are m ore often part of awith little or no computer savvy, who lack the larger enterprise that includes productiontools to supervise their childrens use of the operations and parallel retail distribution of theirInternet and exposure to pornography and products. These latter organizations are moreobscenity. Often, these same parents are unwilling likely to share the features of a legitimaterecipients of "porn spam" themselves. Indeed, business, such as operation from a locationoffensive m aterial that was once largely separate from the webmasters residence, and theunavailable to average citizens and children is use of a corporate bank account.now largely unavoidable. Finding obscene Web sites also differ widely in the m anner inmaterial on the Internet is as easy as a click of the which they conduct business. A Web site may bemouse, and even persons seeking to avoid the little more than an online catalog, providing usersmaterial find themselves confronted w ith it. It is with a convenient mechanism for orderingthis situation that h as led to the Attorney G enerals magazines or videos which the retailer then mailscall for obscenity enforcement. The Internets or ships to the customer. Conversely, a W eb siteporous borders call for federal prosecution. may offer only online content, pictures, videos, or While the Internet poses m any ch allenges to "chat," and charge by the item or through aobscenity prosecutions, the challenges faced by subscription fee. Some Web sites offer onlyprosecutors in this area are not very different from advertising space to other pornographic W eb sites.the challenges faced in other areas where the Organized as a ranking service of the "best" orM A R C H 2004 U N IT E D S T AT E S A T TO R N E YS B UL LET IN 1
  3. 3. most frequently visited Web sites, they perm it it illegal to use a misleading domain name toadvertisers to display sexually explicit "banner deceive a minor into viewing m aterial that isads" that occupy a small portion of the web page. harmful. (The Child Obscenity and Exploitation Section (CEOS ) has issued guidance for Marketin g and sales practices of pornograph ic Un ited States A ttorneys Offices describing thisWeb sites also differ widely. Many magazines and law and its application, which is available onvideo producers have established Web sites as an US AB ook).adjunct to, and sales vehicle for, their hard copyproducts. Other Web sites attract business through Forfeiture for obscenity cases is coveredthe use of "spam" (unsolicited bulk e-mail), or under 18 U .S.C . § 1467. Criminal forfeiture isthey may trick cu stomers, including children, into authorized under this section, but civil forfeiture isvisiting their sites through the use of common not. The following is subject to forfeiture undermisspellings of otherw ise inn ocuous dom ain § 1467: (1) any obscene material produced,nam es. Frequ ently, W eb sites place terms likely to transported, mailed, shipped, or received; (2) anybe entered into search engines (such as real or personal prop erty constituting or traceableGoogle.com) in "metatags," codes stored in the to gross profits or other proceeds; and (3) any realweb page but invisible to the user. These terms or personal property that facilitates the offense.cause the search engines, which periodically index Facilitating property is subject to forfeiture if theWeb sites, to falsely identify the pornographic court, in its discretion, determines the propertyWeb site as one responsive to the users innocuous should be forfeited, taking into consideration thesearch request. nature, scope, and proportionality of the use of the property in the offense. Id.III. Laws app licable to W eb sites It is critical to consider using seizure warrants Most of the provisions of 18 U.S.C. Chapter and orders to seize bank accounts and funds71, created in response to the brick-and-mortar associated with the illegal enterprise. As in anyobscenity trade, are fully applicable to web-based "white collar" investigation, money that isobscenity cases. Those laws include 18 U.S.C. potentially forfeitable should be seized at the time§§ 1461 (mailing obscene matter), 1462 of indictment or arrest to avoid potential disposal(importation or transportation of obscene m atters), of proceeds of the crime by the target of the1465 (transportation of obscene matters for sale or investigation. In addition, if p roperty was used todistribution), and 1466 (engaging in the business facilitate the crime, it should be seized forof selling or transferring obscene m atter). forfeiture pending conviction so that the target Numerous prosecutions have been brought does not dispose of it. Furthermore, pleaagainst persons distributing obscenity through agreements should address forfeiture wherecomputers. In United States v. Thomas, 74 F.3d possible, including forfeiture of the domain name701 (6th Cir. 1996), a case involving a itself and related ownership interests in andcommercial computer "bulletin board," the Sixth related to the Web site, as well as forfeiture of anyCircuit specifically rejected the defendants and all property and equipment used to facilitatearguments that 18 U.S .C. § 1465 did not apply to the offenses.intangible objects such as compu ter image files, IV. Investigating web-based casesand that C ongress had not intended to regulatecomputer transmissions. Subsequent to this A. T argetsdecision, Congress amended 18 U.S.C. §§ 1462 Obscene W eb sites are referred forand 1465 specifically to prohibit the use of an prosecution from a variety of sources. These"interactive computer service" to distribute include, among others, citizen complaintsobscenity. registered with private groups such as Congress frustration with Web sites with ObscenityCrimes.org and the National Center fornam es calculated to m islead Internet users to Missing and Exploited Children, or those sentpornographic Web sites (such as whitehouse.com) directly to U.S. Attorneys Offices. Leads are alsoled to the passage of 18 U.S.C. § 2252B in the developed by law enforcement and the CriminalPR OT EC T A ct. This provision, enacted on A pril Divisions Child Exploitation and Ob scenity30, 2003, creates two related crimes for the Section, and particularly its High Techmisleading use of a domain name (a W eb sites Investigative U nit."address" that a user enters into a Web browser). It is crucial, early in the investigation, for aThe first criminalizes the knowing use of a law enforcement agent to visit the W eb site inmisleading domain name to deceive any person question and preserve its publicly-accessibleinto viewing obscene material. The second makes content using a tool such as Teleport Pro or2 U N IT E D S T AT E S A T TO R N E YS B UL LET IN M A R C H 2004
  4. 4. Adobe Acrobat. Both programs can create a copy those typically availab le at homes and smallof the Web sites Hypertext Markup Language businesses.(HTML) and graphic files, in essence duplicating As with W eb sites, ISPs provide Internetthe W eb site on a law enforcement computers file connectivity in many different ways. The twosystem. This work should be performed on an primary Web site "hosting" models are serverundercover computer with proper backstopping leasing and collocation. In server leasing, the ISP(including the use of an untraceable Internet owns the server (a computer with specializedProtocol, or IP address), and should be carefully software for receiving and transmitting webdocumented. pages) and leases it, or a portion of the space Identifying the webmaster is the first, and available on it, to the webmaster operating theoften , insurmountable h urdle. The Web sites Web site. The webmaster typically never evenpublic registration information is the first source sees the server but administers the site from ato check, because it is free and does not risk remote location by logging into the machine overnotifying the webmaster of law enforcement the Internet with a password supplied by the ISP.interest. Typically, a W eb site acquires a domain A collocated server is also remotely administered,name or address, such as "usdoj.gov," through but the machine is usually provided by theprivate companies, known as registrars, which webmaster to the ISP which places the server inhave been delegated the authority to register its facility and connects it to power andunique names for a fee. The information provided communication lines.by the webmaster to the registrar can be retrieved Although many ISPs provide web hostingusing an Internet "whois" query available on a services to W eb sites regardless of subject m atter,variety of Web sites, including hexillion.com and others specialize in hosting pornography. Bysamspade.org. visiting the ISPs own W eb site, an investigator Many pornographic webmasters provide may develop a sense for whether the ISP is agenuine information to the domain name large, diverse company, or a specialist. Largeregistrars. More devious webmasters, how ever, firms are likely to have significant experience in,can easily provide false information, because the and stand ard proced ures for, respon ding toonly verification most registrars undertake is of subpoenas and search warrants, and their size andthe credit card used to pay for the service. The diversity makes it unlikely that they would informpractice of providing false or fictitious registration the webmaster if they are contacted by lawinformation is likely to increase in frequency as enforcement. "Adult" hosting companies, on themore webmasters are prosecuted for obscenity. If other hand, should be approached with suspicion,the registrars information on the webmaster is and it should be assumed that even informalfalse or fictitious, additional investigation may be inquiries, as well as compulsory process, willnecessary to make an identification. Despite a result in the subjects becoming aware of thebogus registration, a webmaster may be located by investigation.tracing the webmasters payment method, Title 18 U.S.C. § 2703(f) provides a means bytypically a check, credit card, or wire transfer, to which ISPs can be instructed to preserve theeither the registrar or the Internet service provider contents of web servers for a period of ninety(ISP) for the hosting services. Conversely, an days, pending the issuance of a search warrant. Asidentification may result from tracing the with other contacts, however, care should be takenwebmasters method of receiving payment for in determining whether the ISP receiving thisgoods or services. For example, checks or credit request is likely to notify the subject of thecard accounts used to buy videotapes, DV Ds, or investigation.subscription access to a Web site, can beexamined for information leading to the recipient The information provided in these steps isof the funds. also significant in determining the appropriate venue for prosecuting the webmaster and for When the agent performs the "whois" query to opposing a possible motion to transfer. (Venueidentify the webmaster, he or she should also issues are discussed in more detail below.) Theperform a "traceroute" query (using the publicly- location of the webmaster and the Web sitesavailable resources provided above) to identify the server are two important venues to be considered.owner of the Web sites IP address. Most Identifying the physical location of the server,pornographic Web sites are operated using the however, may require contacting the ISP. Manyfacilities of an ISP and are housed at an ISP, in ISPs operate server facilities in several cities ororder to obtain communication speeds faster than states, and the traceroute information will identify the company, but not the location, where theM A R C H 2004 U N IT E D S T AT E S A T TO R N E YS B UL LET IN 3
  5. 5. server is operating. Notably, Web sites selling Despite the challenges of searching the Webobscene materials are frequently located in foreign sites servers, they are potentially quite useful incountries. If both the Web site and the webmaster investigating and prosecuting online obscenity.are overseas, the case is unlikely to merit further First, the server is likely to provide additionalinvestigation. evidence of both the content alleged to be obscene and the webm asters use of the Internet toB. Evidence gathering distribute it. In addition, File Transfer Protocol With the Web sites content captured, and the (FTP) logs maintained by the web server canregistration and ISP of the Web site identified, provide useful information regarding theinvestigators can proceed to place undercover webmasters remote administration of the Webpurchases through the Web site and preserve the site, and the webmasters transmission ofevidence. A software program su ch as Camtasia obscenity between the business location and thecan preserve the ordering process so that a ju ry server. However, the evidentiary opportunitiescan view the images seen by the agent as they presented by the web server and the otherlisten to the agents description of the ordering computers cannot be exploited without obtainingprocess. the assistance of computer forensic technicians familiar with duplicating and investigating Web The undercover purchases can then be used to sites.gain insight into the subjects banking practicesand finances. Can celled checks or money orders Prosecutions will often require thewill provide the subjects bank and account governm ent to obtain search w arrants innumber, and undercover cred it card statements jurisdictions other than w here the prosecution iscan provide sim ilar information on the ultim ate venued. In these instances, the question will ariserecipient of the funds. Grand jury subpoenas as to which community standard the reviewingdirected at the subjects financial institutions will magistrate should apply in evaluating probableprovide access to the subjects account records. cause. The magistrate may inquire whether he or she should apply the community standards of the The full range of investigative techniques jurisdiction where the business is located andemployed in other criminal cases is also useful in where the search warrant will be executed or ofWeb site obscenity investigations. These include the community where the case will be prosecuted.mail covers, surveillance of businesses andresidences, and interviews of witnesses such as This issue was addressed in United States v.former employees. Althou gh W eb site cases begin Levinson, 991 F.2d 508 (9th Cir. 1993). Thein cyberspace, they mu st, in the end, result in real- district court held that the commu nity standards ofworld investigations of individuals and the the district in w hich the alleged obscene materialsbusinesses they operate. are located, which in this case was Los Angeles, generally govern a probable cause determination.C. Searches However, where the government expresses an The final investigative step typically intent to prosecute in a different jurisdiction, theemployed in a Web site obscenity case is to search community standard s of that district shouldthe business, residence, and computers of the control. Because the governm ent intended towebmasters. As in any case, the investigative prosecute in Las Vegas, the district court foundagent prepares an affidavit describing the that probable cause did not exist because theinvestigation to date and the locations to be governm ent had not proven the communitysearched. When either a computer server, or standard s of that district. The N inth Circuitpersonal computers at the enterprises physical reversed, holding that the district court could havelocation (used for bookkeeping, e-mail, and applied the community standards of Los Angelesremotely managing the Web site) are searched, the because the government could have prosecutedaffidavit should describe the nature of the search the case there. See also Multi-media Distributingand assert that pre-publication materials, if any are Co. v. United States, 836 F. Supp 606 (N.D. Ind.found, will be protected under the Privacy 1993) (district court where alleged obsceneProtection Act, 42 U.S.C. § 2000aa. This Act materials were located could make probable causeforbids a government officer or employee, in determination based on that commun itysconnection with the investigation of a criminal standards).offense, from searching for or seizing any work V. Grand jury practiceproduct or documentary m aterials reasonablybelieved to be intended for dissemination to the Most W eb site indictments are presentedpublic, a newspaper, book, broadcast, or other using a single agent who describes the results ofform of public communication. the investigation. Although the grand jury may4 U N IT E D S T AT E S A T TO R N E YS B UL LET IN M A R C H 2004
  6. 6. issue a valid ind ictment based solely on an agents California, where the defendants formed thedescription of the material alleged to be obscene, conspiracy and performed the overt acts insee, e.g., U nited States v. M anarite, 448 F.2d 583 furtherance of that conspiracy, instead of the(2d Cir. 1971), the grand jury must be provided Northern D istrict of Iow a wh ere the materialsthe opportunity to view the material if it wishes were distributed. The Eighth Circuit stated that theand to do so in its entirety to meet the test for same principles of venue under 18 U.S.C. § 3237obscenity in Miller v. California, 413 U.S. 15 apply to a charge of conspiracy, and "it is w ell(197 3). settled that the offense of conspiracy may be tried not only in the district where the agreement was By presenting at least a portion of the made, but also in the district where an overt actmaterial, the prosecuting attorney will have the was committed." Id. at 1041-42.opportunity to observe the grand jurors reactions,and thereby gain some insight into the community Defendants may also file motions to dismissstandard s that the petit jury will likely employ in the indictment, arguing that the governmentevaluating the material. In practice, booklets of allegedly manufactured jurisdiction or venue. Thephotographs or short clips of videos may be defense will argue that the government lured theprep ared which can be shown to the grand jury in defendant into a pro-government district and thatthe context of the agents description of the the defendant was merely an operator of a Webpurchases. In cases in which the Web site content site located in a distant jurisdiction. Theitself is alleged to be obscene, the captured government can counter that the defendant createdversion of the Web site can be provided on a the interstate nexus by sending the material incomputer to demonstrate the contents to the grand interstate comm erce, or used a facility of interstatejury. commerce or interactive computer service for the purpose of distribution, and thus accepted theVI. Pretrial motions possibility of prosecution in the district to which When defendants are charged in the the material was sent. Several analogous casesjurisdiction to which materials were sent or support the view that in Web site cases, thedownloaded, they may file motions to change government may charge a defendant in the districtvenue to where they reside or where their business from which the materials originated or where theis located. These arguments have been tried and materials were received. See, e.g., United States v.rejected in several cases. In United States v. Bagnell, 679 F.2d 826 (11th Cir. 1982) (interstateEspinoza, 641 F.2d 153 (4th C ir. 1981), a case shipment of obscenity); Reed E nterprises v. Clark,involving the shipment of child pornography 278 F. Su pp. 372 (D.D.C. 1967) (mailing ofunder 18 U .S.C . § 1465, the Fourth Circuit obscenity); see also United States v. Thomas, 74rejected the defendants claim that he had a F.3d 701 (6th C ir. 1996) (Internet bulletin boardconstitutional right to be tried in the jurisdiction with restricted mem bership).of his residence. Similarly, in United States v. VII. Trial issuesSlepicoff, 524 F.2d 1244 (5th Cir. 1975), in aprosecution for mailing obscene materials under A. C om munity standards and the internet18 U.S.C. § 1461, it was held that the multivenue Many of the prosecutions for violations ofprovisions contained in 18 U.S.C. § 3237 allow obscenity statutes will involve crimes committedfor enforcement in selected districts. In view of via the Internet. Wh ile the Miller test established athe contemporary community standards three-part test for obscenity which incorporatesrequirement of the Miller test, the Slepicoff court "the average person applying contemporary adultfound that it was logical to try a defendant in a community standards," this test was devisedjurisdiction to which obscene materials had been before the advent of the Internet. Miller v.mailed. Id. Furthermore, a defendants choice to California, 413 U.S. 15, 24 (1973). Therefore, thedo business throughout the nation limited his right question as to what the community standard is onto be tried in the locality where he lives and bases the Internet has not yet been answered. Is thehis operations. Id. standard that of the community in the jurisdiction The principles of broad venue under 18 where the case is brough t? Shou ld the com munityU.S.C . § 3237 have even been held to apply in standard be that of the district where the materialobscenity conspiracy prosecutions. United States is produced, distributed , or sold? Or should therev. Cohen, 583 F.2d 1030 (8th Cir. 1978). In the be a national community standard because theCohen decision, the Eighth Circuit rejected the Internet is available in each and every jurisdictiondefendants claims that the governm ent sh ould in the country?have been required to introduce evidence of thecommunity standards of the Central District ofM A R C H 2004 U N IT E D S T AT E S A T TO R N E YS B UL LET IN 5
  7. 7. Although the Supreme Court has yet to weigh at 590-91 (Breyer, J., concurring) (stating thatin on the forum shopping issue in the context of legislative history of Child Online Protection ActInternet obscenity, its recent analysis regarding made clear that Congress intended a nationalthe constitutionality of applying local community standard). This point has not been lost on at leaststandards to material distributed on the Internet one lower court considering the overbreadth ofsuggests at least some agreement with the notion other Internet-related statutes. See Nitke v.that the commu nity standards of the district of Ash croft, 253 F. Supp. 2d 587, 603-05 (S.D.N.Y.receipt should be applied. In Ashcroft v. American 2003) (in discussing appropriate comm unityCivil Liberties Union, 535 U.S. 564 (2002), a standard for Internet, court distinguished Hamlingplurality held that the Child Online Protection and Sable, stating that "because the InternetActs (COPA s) reliance on community standards content providers cannot con trol the geograph icto determine what was "harmful to minors" over distribution of their materials, Internet obscenitythe Internet did not, by itself, render COPA statutes restrict protected speech"). Id. at 604.unconstitutionally overbroad. The plurality stated: This emerging view that distributors on the If a publisher chooses to send its material into Internet are helpless to control the vast extent of a particular commun ity, this C ourts distribution could precipitate an unfavorable jurisprud ence teaches that it is the pub lishers judicial attitude toward the governments selection responsibility to abide by that com mun itys of venue in ju dicially conservative districts. W hile standards. The publishers burden does not a national community standard has not yet been change simp ly because it decid es to distribute created, it appears from the opinions discussed its material to every community in the Nation. above that it is at least being considered by some members of the judiciary. Following this type ofId. at 583. In reaching this conclusion, the reasoning, a lower court could try to impose aplurality relied on Ham ling v. United States, 418 national standard, which could greatly impact anyU.S. 87 (1974), in which the Court upheld the obscenity prosecution. For example, that nationalapplication of varying community standard s to standard could be that of a restrictive commu nity,obscenity in an obscenity mail distribution case, a permissive community, or something inand Sable Communications v. FCC, 492 U.S. 115 between. This concern will be mitigated where the(1989), in which it held that the application of distributor exercises increased control overlocal community standards to "dial-a-porn" distribution, such as by m ailing into a district. Intelephon e com munications was constitutional. any event, the appropriate community standard isAsh croft, 535 U.S. at 580-81. Ash crofts language an issue that requires thought and preparation inalso im plies that the Court would view venue in advance of trial.any district a necessary consequence of choosingto distribute obscenity over a far-reaching medium B. Scienterlike the Internet. When prosecuting obscenity cases, many All of this is not to suggest that the broad defendants will claim lack of knowledge that thedistribution aspect of the Internet has not caused material they were distributing was obscene.apprehension am ong some courts, with regard to However, a defendant does not need to know thatboth venue and the appropriate comm unity the m aterial is obscene to sustain a guilty verdict.standards to be applied. Recent rumblings in the For example, under 18 U.S.C. § 1461, theSupreme Court and elsewhere suggest that the knowledge requirement has been deemed satisfiedbreadth of the Internets reach is elevating if the defendant "knew the character and nature ofconcerns about broad venue and the concomitant the materials," so that the government does notapplicability of varying comm unity standards. have to prove that the defendant knew that theDespite the pluralitys holding in Ash croft, the materials were legally obscene. Ham ling v.concurring opinions suggest that Hamling and United States, 418 U.S. 87, 123 (1974 ). Rather,Sable might not be applicable to the Internet proving scienter only requires a showing ofbecause it is a broader medium with necessarily "general kn owledge that the m aterial is sexuallyunlimited distribution, unlike the mail or the oriented." United States v. Linestsky, 533 F.2dtelephone. Id. at 587 (OConnor, J. concurring) 192, 204 (5th Cir. 1976). One court has held that("adoption of a national standard is necessary in books, magazines, and other films seized from themy view for any reasonable regulation of Internet defend ant can be used to prove the defendantsobscenity"); Id. at 594-97 (Kennedy, J. knowledge of the nature of the films that are theconcurring, joined b y Souter and Ginsburg, JJ.) subject of the prosecution. Un ited States v. Hurt,(recognizing the burden on Internet speech based 795 F.2d 765 (9th C ir. 1986).on the varying national community standard s); Id.6 U N IT E D S T AT E S A T TO R N E YS B UL LET IN M A R C H 2004
  8. 8. In addition, in a prosecution for conspiracy to Therefore, USSG §2G3.1 (Mailing orviolate 18 U.S .C. § § 1461 and 1462, it was held Transporting Obscene Matter) is utilized forthat scienter was established where, among other violations of this statute.things, the record contained evidence that the Based on USSG § 3D1 .1(a), Procedure fordefendants attempted to conceal their personal Determining Offense Level on M ultiple Counts,involvement in the scheme by evasive tactics, when a defendant has been convicted of more thanincluding the use of fictitious corporate names, one count, the court shall group the countschanges of address filed by persons using aliases, resulting in conviction into distinct Groups ofand the use of various locations as mail drops for Closely Related Counts by applying the rulesreturn mail consisting of orders and payments specified in USSG § 3D1.2. Based on USSGfrom cu stomers. United States v. Cohen, 583 F.2d § 3D1 .2(a), offenses are grouped when coun ts1030 (8th C ir. 1978). In another conspiracy case, involve the same victim and the same act orthe court held that know ledge that materials were transaction. In addition, USSG § 3D1.2(b)sexually explicit was the only scienter provides that offenses are grouped when coun tsrequirement under 18 U.S.C. § 1462, and involve the same victim and two or more acts ortherefore, the defendants could be convicted of transactions connected by a common criminalconspiring to violate the statute even if they did objective or constituting part of a common plan ornot know that the videos in question would be scheme. Fin ally, although not sp ecificallydistributed to a comm unity in which they would enumerated, USSG § 3D 1.2(d) also provides forbe deemed obscene. United States v. Investment the possibility of grouping. Therefore, based onEnterprises, Inc., 10 F .3d 263 (5th Cir. 1994). the foregoing sections, it is likely that theseVIII. Sentencing offenses will group based on the fact that the same victim, i.e., society, is harmed by commission of Offenses committed under 18 U.S.C. §§ 1461, these offenses which are based on a common1462, and 1 465 fall under the purview of scheme or plan. The offenses are of the same type,United States Sentencing Guideline (USSG) and therefore, all counts likely will group§ 2G 3.1, M ailing or Transporting O bscene Matter. together, forming one group. Pursuant to USSG §The base offense level is 10 for this violation and 3D1.4, there would be no increase in the offenseincludes enhancements based on the content of the level.material (sadistic and m asochistic conduct),whether or not a computer was involved in the IX. Conclusioncommission of the crime, and whether the Although web-based obscenity prosecutionsdistribution was for pecuniary gain. If the present unique challenges, they are a vitaldistribution was for pecun iary gain, then the loss compon ent of an overall federal strategy totable located in USSG § 2B 1.1 is utilized, address an increasingly degradative pornographycorresponding to the retail value of the material. industry. In addition, effective enforcement ofThe enhancement increases the offense level b y a obscenity law on the Internet is critical tominimum of 5, and may increase it more, based reclaiming this important medium as an arenaon the total loss value. which, while permitting the expression of First There will also be cases where the general Am endment-protected sp eech, is reasonably safeconspiracy statute is charged pursuant to 18 for children and adults to explore.˜U.S.C. § 371, most often in the context of a ABOUT THE AUTHORSconspiracy to use the mails for the mailing ofobscene matters and to use an interactive ‘Benjamin V ernia is a Trial Attorney in thecomputer service for the purpose of the sale and Child Exploitation and Ob scenity Section. P rior todistribution of obscene matters, in violation of 18 joining C EO S in 2002, he w as a Trial Attorney inU.S.C. §§ 1461 and 14 65. This crime carries a the Fraud Section of the Civil Division for eightmaximum sentence of five years and no specific years.guideline covers this offense. Therefore,prosecutors are directed to USSG § 2X1.1, ‘David Szuchman joined the Child ExploitationAttempt, Solicitation, or Conspiracy Not Covered & Obscenity Section as a Trial Attorney in 2002.by a Specific Offense Guideline. This section Mr. Szuchm an was previously employed as astates that the base level to be used is the base Legislative Attorney for the N ew York Cityoffense level from the guideline for the Council and also served for four years as ansubstantive offense, plus any adjustments from Assistant District Attorney for the Manhattansuch guideline for any intended offense conduct District Attorneys Office in New York. athat can be established with reasonable certainty.M A R C H 2004 U N IT E D S T AT E S A T TO R N E YS B UL LET IN 7
  9. 9. The Aftermath of Free Speech: A NewDefinition for Child PornographyBrian Slocum provision that covers highly-realistic computer-Trial Attorney generated images, it is difficult to meet the burdenChild Exploitation and Obscenity Section of proof when images are of real, but unidentified,Criminal Division children. This problem has the potential to grow increasingly worse as trials devolve into confusing battles between experts arguing over the methodWendy Waldron of generating im ages that look like, and prob ablyTrial Attorney are, real children. Even in cases involvingChild Exploitation and Obscenity Section identified victims of ch ild pornography, it is veryCriminal Division difficult for prosecutors to arrange for one of the few law enforcement witnesses who have met theI. Introduction child to be available for any given child In 2002, a U nited States Supreme Court pornography trial.decision struck a serious blow to federal child II. The need for a "Free Speech fix"pornography prosecutions. In Ashcroft v. FreeSpeech Coalition, 535 U.S. 234 (2002), the Congress sought to remedy these concernsSupreme Court found two of the four then- with the enactment of the Prosecutorial Remediesexisting definitions of child pornography to be and Other Tools to end the Exploitation ofunconstitutional. The first of these was 18 U.S.C. Children T oday A ct of 2003 (P RO TECT Act),§ 2256(8 )(B), which defined "child pornography" Pub. L. No. 108-066, 117 Stat. 650, on April 30,to include visual depictions that "appear[] to be" 2003. The PRO TEC T Act greatly enhancesof minors engaging in sexually explicit conduct. federal child pornography law by, among otherThis definition, often referred to as the "virtual things, replacing with a new provision the priorchild pornography" definition, included com puter- definition of "child pornography" in 18 U.S.C.generated images or images of adults who § 2256(8)(B) that was struck by the Free Speechappeared to be minors. The C ourt foun d this court. Title V, Subsection A of the PROTEC T Actprovision to be unconstitutionally overbroad. In directly responded to the Free Speech decision by creating a new provision in § 2256(8)(B) thatparticular, the Court concluded that the definition defines child pornography to include computer-extended beyond the traditional reach of obscenityas described in Miller v. California, 413 U.S. 15 based depictions that are indistinguishable from(1973), that the Courts decision in New Y ork v. those involving real children. The PROTECT ActFerber, 458 U.S. 747 (1982) could not be also expands the affirmative defense applicable toextended to support a complete ban on virtual cases brou ght under § 2256(8)(B) in respon se tochild pornograph y, and that the governments the Supreme Courts criticism of the prior law.argum ents in favor of the prohibition were The PROTEC T Act child pornographyinsufficient under the First Amendment. Ashcroft, provisions more narrowly focus federal childat 246-52, 256. The aftermath of this portion of pornography law on the governments corethe Courts decision is the focus of this article. interest: preserving its ability to enforce laws By invalidating these important features of the proscribing child pornography produced usingChild Pornography Prevention Act of 1996, real children. To further this interest, thecodified at 18 U.S.C. §§ 225 1-22 60 , the Courts PR OT EC T A ct makes fundam ental changes withdecision left the government in an unsatisfactory respect to the "virtual" child pornography ban inposition that warranted a prompt legislative § 2256(8)(B), and the corresponding affirmativeresponse. As a result of the Free Speech decision, defense in 18 U.S.C. § 2252A(c). Thus, thedefendants frequ ently contend that there is PR OT EC T A ct includes in the definition of child"reasonable dou bt" as to whether charged images, pornography images that, to an ordinary observer,particularly digital images on a com puter, w ere could pass for the real thing. At the same time, theproduced with an actual child, or as a result of PROTE CT Act provision gives a defendant thesome other process. Occasionally, there are ability to escape conviction under the childexperts who are willing to testify to the same pornography statutes if he can establish that theeffect on the defend ants behalf. Withou t a image was not produced using a real child.8 U N IT E D S T AT E S A T TO R N E YS B UL LET IN M A R C H 2004
  10. 10. The changes brought about by the PROTECT image[s]," and "computer-generated image[s]."Act are inten ded to add ress the Sup reme Courts This limitation implicitly acknowledges the powerconcerns that legitimate expression might of computer imaging technology both to alterimproperly fall within the scope of the child actual child pornography and to generatepornography laws. T he provision is therefore simulated child pornography. Because the use ofnarrowly tailored in four ways to advance the computers and digital technology to traffic imagesgovernments compelling interest, without casting of child pornography implicates the core of thea broad net over protected speech. First, the governments practical concern aboutproscription of virtual images is limited to digital, enforceability, "drawings, cartoons, sculptures, orcomputer or computer-generated images. Second, paintings," which cannot pass for the real thing,the images must genuinely look like they depict are specifically excluded from the scope ofreal children. Third, the sexual content must be § 2256(8 )(B).particularly explicit. Fourth, the defendant can Along w ith narrow ing the definition of childescape conviction through an affirmative defense pornography, the PROTEC T Act limits the scopeby establishing that the images were produced of sexual conduct depicted that is actionable forwithout the use of a real child. As set forth in virtual child pornography under § 2256(8)(B ).more detail below, the new provision provides an (Note that this new definition does not affectimportant response to the Sup reme Courts prosecutions u nder either § 2256 (8)(A) or (C)).concerns in Ashcroft v. Free Speech Coalition. Thus, a new provision, § 2256(2)(B), contains aIII. The details of the new child pornography defin ition of sexually ex plicit cond uct sp ecific toprovisions § 2256(8 )(B): The centerpiece of the PROTECT Acts (B) For purposes of subsection 8(B) of thisresponse to the Free Speech decision was to section, sexually explicit conduct means–amend § 22 56(8)(B) to read as follows: (i) graphic sexual intercourse, including such visual depiction is a digital image, genital-genital, oral-genital, anal-genital, or computer image, or computer-generated oral-anal, whether between persons of the image that is, or is indistinguishable from, same or opposite sex, or lascivious simulated that of a minor engaging in sexually sexual intercou rse, where the genitals, breast, explicit conduct; or pubic area of any person is exhibited;18 U .S.C. § 2256(8 )(B) (2003 ). (ii) graphic or lascivious simulated;Among other changes, the new definition (I) bestiality;substitutes the phrase "indistinguishable from [] (II) masturbation; orthat" of a minor for the "appears to be" phrasestruck down by the Court in Free Speech. A new (III) sadistic or masochistic abuse; orprovision, § 2256(11), explains the meaning of (iii) graphic or simulated lascivious exhibition"indistinguishable" as follows: of the genitals or pubic area of any person; the term "indistinguishable," used with respect 18 U .S.C. § 2256(2 )(B) (2003 ). to a depiction, m eans virtually indistinguishable, in that the depiction is such This provision, in turn, relies upon a new that an ordinary person viewing the depiction definition in 18 U.S.C. § 22 56(10), which defines would conclude that the depiction is of an "graphic": actual minor engaged in sexually ex plicit graphic, when used w ith respect to a conduct. This definition does not apply to depiction of sexually explicit conduct, means drawings, cartoons, sculptures or paintings that a viewer can observe any part of the depicting minors or adults. genital area of any depicted person or animal18 U .S.C. § 2256(1 1) (2003). during any part of the time that the sexually explicit conduct is being depicted[.]The definition thus clarifies that only the mostconvincing depictions of ch ild pornography, Notably, the new provision requires awhich are indistinguishable from those depicting simu lated image to be lascivious to constitutereal children, are proscribed. child pornography under § 2256(8)(B). Thus, child porn ography that sim ulates sexually ex plicit Further narrowing the scope of the virtual conduct (as opposed to depicting actual sexuallychild pornography definition, § 2256(8)(B) is now explicit conduct) must be lascivious, as well asexplicitly limited to "digital image[s]," "computer meet the other requirement of the definition. TheM A R C H 2004 U N IT E D S T AT E S A T TO R N E YS B UL LET IN 9
  11. 11. combined effect of these changes is to narrow the challenge. Prudence dictates that, until thedefinition of sexually explicit conduct in cases challenges are finally resolved by the Supremeinvolving virtual child pornography under Court, prosecutors should carefully evaluate and§ 2256(8)(B). In such cases, sexually exp licit scrutinize their use of the new provisions, andconduct must be graph ic or, if simulated, also include "safe harbor" or back-up charges in theirlascivious. indictm ents to the extent such charges are available. The PROTEC T Act also significantly amendsthe affirmative defen se in 18 U.S.C. § 2252A(c). Several aspects of the images should bePreviously, the affirmative defense was available considered before a charging decision is made.in cases involving transportation, distribution, The images should be of good quality, ap pear toreceipt, and reproduction of child pornography if show real children , and depict sexually ex plicitthe defendant could prove that the alleged child conduct, if possible. In addition, given thepornograph y was prod uced using an actual adult, Supreme Courts emphasis on the potential literaryand was not pandered in such a manner as to and artistic merit of materials exploring teenageconvey the impression that it was child sexuality, images of prepubescent children shou ldpornography. In Free Speech, the Court criticized be given preference over those of older children.the affirmative defense on the grounds that it In all cases, prosecutors and law enforcementincompletely protected defendants First should continue their efforts to identify childrenAm endment rights. Specifically, the Court depicted in the images. The identification ofobserved that the affirmative defense was not known victims is essential in determining whichavailable to a defendant who could prove that real victims of child pornography have not yet beenchildren were not involved in the production of identified and protected from further harm.the images, but who had pandered the material as Prosecutions under § 2256(8)(B) will also be in achild pornography. 535 U.S. at 256. The Court stronger position against any constitutionalwas also concerned that the defense did not extend challenge if some of the charged images depictto possession offen ses. Id. known victims. In cases brought under the old The new affirmative defense eliminates both child pornography statutes, the identification ofof the problems identified by the Court. First, the known victims is useful even if it is not feasible toaffirmative defense now includes possession introduce evidence regarding the childs identity atoffenses. Second, while prior law only granted an trial. The identification of known victims canaffirmative defense for productions involving often lead to plea agreements or to stipulationsyouthful-looking adults, and only allowed the that charged images depict actual minors engageddefense if the defendant did not pander the in sexu ally explicit conduct.material as child pornography, a defendant can Prosecutors considering charging under thenow prevail simply by showing that no children pre-existing child pornography provisions, ratherwere used in the production of the materials. In than the new § 2256(8)(B), should keep in mindother words, a defendant can now prevail by that the identification of known victims is by noestablishing that the images do not depict actual means the only way to meet the governm entschildren. The defendant must, however, provide burden of proving that charged images depict realnotice to the govern ment of an intention to assert children engaging in sexually ex plicit cond uct.the affirmative defense no later than ten days Indeed, there is support for the position thatbefore trial. simply entering the images into evidence can meetIV. Application of the new provisions and the governments burden.alternative charges The three circuits that have addressed the Since the enactment of the PRO TE CT Act, issue in light of the Free Speech decision haveprosecutors have several options to consider in concluded that the jury can make its decision bychild pornography cases. The Department of simply viewing the images themselves. SeeJustice (Department) expects that the "virtual United States v. Kimler, 335 F.3d 1132, 1142porn" provision of the PROTEC T Act will face (10th Cir. 2003) (holding that juries are capable ofconstitutional challenges. Because it is possible distinguishing between "real and virtual images"that those challenges will ultimately be heard by and that neither expert testimony nor evidence ofthe Supreme Cou rt, Assistant United States victim identity is required by the Free SpeechAttorneys (AUSA s) considering charges under the decision); United States v. Deaton, 328 F.3d 454,new child pornography definition in § 2256(8)(B) 455 (8th Cir. 2003) (per curiam) (holding thatshould be m indful that their cases are just as likely images alone were sufficient to prove thatas any other to serve as the vehicle for a production of charged images involved u se of a10 U N IT E D S T AT E S A T TO R N E YS B UL LET IN M A R C H 2004
  12. 12. real minor); Un ited States v. Hall, 312 F.3d 1250, Finally, care should be taken to develop a1260 (11th Cir. 2002) (holding that desp ite strong record when accepting pleas to ch ildunconstitutional jury instruction, examination of pornography charges. First, to the extent thecharged images showed that no reasonable jury record supports it and the defendant agrees, thecould have found that images depicted virtual plea colloquy should unequivocally reflect that thechildren as opposed to actual children). defendant is pleading to child pornographyProsecutors in child pornography cases may also involving real minors. If the government haswant to support their proof that images depict real evidence suggesting that one or more of thechildren by presen ting the testimony of a charged images depicts an identified minor, thephysician that characteristics such as the fact that such evidence exists should be part of theproportions, body fat distribution, and skin tone of colloquy.the children depicted are consistent with those of V. Conclusionreal children. See United States v. Bender, 290F.3d 1279 (11th Cir. 2002). The situation before the enactment of the PROTE CT Act was unacceptable, as many In cases that proceed under the new 18 U.S.C. meritorious cases involving child pornography§ 2256(8)(B), charging some images under one of were not being brought, or were creating anthe obscenity provisions, 18 U .S.C . §§ 1460-70, is unnecessarily heavy drain on law enforcement andalso an effective way to ensure that convictions prosecutorial resources. T he Su preme Courtswill stand in the event that § 2256(8)(B) is struck decision in Free Speech made enforcement of thedow n as u nconstitutional. The new obscenity child pornography laws substantially morestatute enacted as part of the PROT EC T A ct, difficult and threatened to reinvigorate this§ 1466A , is one of the possible backup charges. pern icious traffic and harm more children . WhileThis statute is directed to the obscene visual the D epartment was disapp ointed with the Courtsrepresen tation of the sexual abuse of children. See decision, any legislation must necessarily respect18 U.S.C. § 1466A (2003). When p ossession, as it and endeavor, in good faith, to resolve theopp osed to receipt or distribution, of the im ages is constitutional deficiencies in the prior law thatall that can be shown, the new § 1466A(b) is the were identified by the Court. The Departmentonly available federal obscenity provision because believes that the PROT EC T A ct has succeeded init is the only one that includes possession within doing so.˜its prohibitions. When receipt or distribution canbe shown, however, obscenity provisions other ABOUT THE AUTHORSthan § 1466A can be used. In addition, while§ 1466A(a)(1) is likely to be a safe charge, ‘Brian Slocum is a Trial Attorney in the Child§ 1466A (a)(2) should be used with caution as a Exploitation and Obscenity Section (CEOS). Priorbackup charge due to the likelihood that it will be to joining CEOS in 20 02, Mr. Slocum was hiredchallenged. through the Honors Program as an attorney in the Civil Division in 2000. ‘Wendy W aldron joined the Child Exploitation and Obscenity Section throu gh the Honors Program as a Trial Attorney in 2001. Ms. Waldron spent six months on detail in the United States Attorneys Office for the District of Columbia, specializing in child sexual and physical abuse cases.aM A R C H 2004 U N IT E D S T AT E S A T TO R N E YS B UL LET IN 11
  13. 13. Sex Trafficking of Minors:International Crisis, Federal ResponseSara L. Gottovi The human trafficking business is a lucrativeTrial Attorney one, generating approximately $7-10 billionChild Exploitation Obscenity Section annually for traffickers. Id. at 9. Trafficking is aCriminal Division particularly alluring crime because many nations punish trafficking victims more harshly than the For most A mericans, the word "slavery" traffickers, thus allowing a high level of income toinvokes thoughts of shameful practices abolished be gen erated with a low level of risk. Kara C. R yf,long ago. Unfortunately, however, modern day Note, The First Modern Anti-Slavery Law: Theslavery not only exists, but is a thriving industry Trafficking Victims Protection Act of 2000, 34in countries throughout the world. U.S. C ASE W. R ES . J. INT L L. 45, 48 (2002). BecauseDepartment of State, Trafficking in Persons "there is less overhead cost than in the drug andReport, 2003, available at arms smuggling industries, and humans are ahttp://www.state.gov/g/tip/rls/tiprpt/2003 reusable commodity that can be sold and[hereinafter TIP Report]. The business of human resold. . . . large and well-established organizedtrafficking is a problem of global proportions, crime rings" including the Russian Mafia, havewith potentially devastating consequences not become involved in the market of humanonly for the individu al victims, but for entire trafficking. Id. at 50.nations as well. Id. at 10-11. This article examines Although United States citizens are notthe United States approach to the crime of human immune from the crime of trafficking, residents oftrafficking, with a focus on sex trafficking of nations plagued by poverty, war, or other politicalchildren . unrest, are particularly vulnerable. Th eseI. Introduction conditions fuel the residents desire to migrate. Tal Reviv, Interna tional Trafficking in Persons: A Although there is no worldwide consensus on Focus on Women and Children—The Currentthe appropriate definition for "trafficking in Situation and the Recent International Legalpersons," Francis T. Miko & G race Park, Response, 9 C ARDOZO W OMEN S L.J. 659, 661Trafficking in Women and Children: The U.S. and (2003). In some cases, victims are sold by theirInternational Respon se, at 2 (Updated July 10, families. Kara C. R yf, Note, supra at 49. In200 3), at others, tantalizing promises of lucrativehttp://ww w.usembassy.it/pdf/other/RL305 45.pdf, employm ent or marriage into an afflu ent familyUnited States legislation defines "severe forms of may be used to lure victims. TIP R eport, supra, attrafficking in persons" as: 7. It is also a com mon scenario for traffickers to sex trafficking in which a commercial sex act use threats, force, violen ce, or even kidnapping, to is induced by force, fraud, or coercion , or in procure victims. Id. at 6-7. which the person induced to perform such an International traffickers generally transport act has not attained 18 years of age; or victims to foreign and unfamiliar countries to the recruitment, harboring, transportation, increase their vulnerability and susceptibility to provision, or obtaining of a person for labor manipulation. Id. at 6. A fter reaching their or services, through the use of force, fraud or intended destination, traffickers may strip the coercion for the purpose of subjection to victim of all identification and other documents involuntary servitude, peonage, debt bondage, needed for travel. Id. Traffickers may also charge or slavery. grossly inflated fees for their "immigration services," which can result in a lifetime of debtTIP R eport, supra at 12. bondage. Miko supra, at 4. Using that definition, the United States Victims of trafficking are then used to provideDepartm ent of State estimates that approximately cheap labor for a variety of industries. Some of800,000-900,000 people are trafficked annually. the most common sites of "employment" include,Id. at 7. App roximately 18,000-20,000 of those but are not limited to: houses of prostitution orvictims are trafficked into the United States. Id. other forms of sexual exploitation, farms, residences (victims forced into domestic12 U N IT E D S T AT E S A T TO R N E YS B UL LET IN M A R C H 2004
  14. 14. servitude), sweatshops, the military (victims prostitution as a way to support themselvesutilized as ch ild soldiers or in other military financially or to get the things they want or need.positions), and the streets (victims forced to beg Id. at 3.or steal). TIP Report, supra, at 9, 26, 38, 45, 59, Oth er young people are recruited into97. In the Un ited States, ap proximately one-half prostitution through forced abduction, pressureof all trafficking victim s are forced into from parents, or through deceptive agreementsprostitution and the sex industry. Miko, supra, at between parents and traffickers. M iko, supra, at 7.7. On ce these ch ildren become involved in All genders, races, and ages are subject to prostitution, they are often forced to travel farhuman trafficking. The majority of trafficking from their homes and, as a result, are isolatedvictims, however, are women "under the age of from their friends an d family. Id. Few children in25, many in [their] mid to late teens." Id. at 4 this situation are able to develop new relationships(noting that "[t]he fear of infection with HIV and with peers or adults other than the person who isAID S am ong customers has driven traffickers to victimizing them. Id. The lifestyle of suchrecruit younger women and girls, some as young children revolves around violence, forced drugas seven, erroneously perceived by customers to use, and constant threats. Id.be too young to have been infected."). Id. Am ong children and teens living on the streetsInternationally, the majority of trafficking victims in the United States, involvement in commercialare believed to come from South an d Southeast sex activity is a problem of epidemic proportions.Asia, while the former Soviet Union "may be the Ap proximately 55 % of street girls engage inlargest new source of trafficking for prostitution formal prostitution. Estes Report at 7. O f the girlsand the sex industry." Id. at 2. After being engaged in formal prostitution, about 75% workedtrafficked, "most of the victims are sent to Asia, for a pimp. Id. Pimp-controlled commercial sexualthe M iddle East, Western Europe, and N orth exploitation of children is linked to escort andAm erica. They usually end up in large cities, massage services, private dancing, drinking andvacation and tourist areas, or near military bases, photographic clubs, major sporting andwhere demand is highest." Id. Victims who come recreational events, major cultural events,to the United States "most often end up in the conventions, and tourist destinations. Id. Aboutlarger cities of N ew York, Florida, North one-fifth of these ch ildren become entangled inCarolina, California, and Hawaii . . . [although] nationally organized crime networks and arethe problem is also migrating to smaller cities and trafficked nationally. Id. at 8. They are transportedsuburbs." Id. at 7. around the United States by a variety of means, In addition to addressing the influx of including cars, buses, vans, trucks or planes, Id.,international victims of sex trafficking, the and are often provided coun terfeit identification toUnited States has its own homegrown problem of use in the event of arrest. Id. The average age atinterstate sex trafficking of minors. Although which girls first becom e victim s of prostitution iscomprehensive research to document the number twelve to fourteen. Id. at 92. It is not only the girlsof children engaged in prostitution in the on the streets that are affected; for boys andUnited States is lacking, it is estimated that about transgender youth, the average age of entry into293,000 American youth are currently at risk of prostitution is eleven to thirteen. Id.becoming victims of commercial sexual II. Recent U.S initiatives to curb sex traffickingexploitation. Richard J. Estes & Neil Alan of m inorsWeiner, Comm ercial Sexual Exploitation ofChildren in the U.S, Canada and Mexico, The Un ited States has declared its firmU NIVERSITY OF P EN NS YL VA NIA , E XECUTIVE commitment to combat the scourge of traffickingS UMMARY at 11-12 (2001) (available at in persons and to protect the "victims w ho fallhttp://caster.ssw.upenn.edu/~restes/CSEC.htm) prey to traffickers." T IP Report, supra, at 169.[hereinafter Estes Report]; see also Mia Numerous policy directives and statutorySpangenberg, Prostituted Youth in New York City: enactments, both international and domestic inAn O verview (available at scope, have resulted from this comm itment tohttp://www.ecpatusa.org/child_prosti_us.asp). The eradicate human trafficking. Miko & P ark, supramajority of American victims of commercial at 8-19. These initiatives are designed to targetsexual exploitation tend to be runaway or thrown various aspects of the trafficking epidemic andaway youth who live on the streets. Estes Report, rely on a cooperative approach by, among others,at 11-12. These ch ildren come from homes where the Departments of Justice, Labor, State,they have been abused, or from families that have Homeland Security, and the Federal Bureau ofabandoned them, and often become involved in Investigation. Id. at 8-10.M A R C H 2004 U N IT E D S T AT E S A T TO R N E YS B UL LET IN 13
  15. 15. "The U.S. government-wide anti-trafficking mandated in the TVPA, for international victimsstrategy is one of (1) prevention, (2) protection of trafficking in the United States who cooperateand support for victims, and (3) prosecution of with law enforcement officials. In addition totraffickers." Id. at 8. Numerous initiatives have providing the non-immigrant "T" visa for thoseemerged from this strategy. A W orkers individuals recently victimized by traffickers, theExploitation T ask Force w as created to investigate Attorney G eneral made clear that individu als inand prosecute human trafficking and exploitation "T" status would have an opportunity to seekcases. Id. at 9. Internationally, "[t]he Department permanent residency after three years in "T"of State funded the creation of a database on U.S. status, and that their spouses and children living inand international legislation on trafficking." Id. the United States could apply for non-immigrantAn Interagency Council on Women w as created to visa status.increase awareness of the problem and to develop In early 2003, the FBI announced O perationstrategies for solutions. The United States urged Innocence Lost, a nationwide initiative focusingother countries to take strong action to address the on child victims of interstate sex trafficking in theproblem of human trafficking, including passage United States. The FBI initiative first identifiedof necessary legislation and cooperation with non- several urban areas that are known to be hubs forgovernm ental organizations (NGO s) dedicated to interstate sex trafficking of minors. Federal anderadicating trafficking. Id. state prosecutors and investigators, along with As a result of this initiative, the U.S. Congress FBI special agents from these geographic areas,passed the Victims of Trafficking and Violence have been targeted for special training at theProtection Act in 2000. Pub. L. 106-386, 114 Stat. National Center for Missing and Exploited1466 (Oct. 28, 2002) [hereinafter TVPA]. Among Children on issues related to identifying,its key provisions, the TVPA directs the investigating, and prosecuting cases involvingDepartment of State to submit an annual report child victims of prostitution. S tarting in 2004, thisidentifying coun tries that do and do not com ply training program will be expanded to includewith minimum standards for the elimination of individu als from areas not initially targeted intrafficking. The report must also provide, on a Operation Innocence Lost. In addition, as part ofcountry-by-country basis, a description of the Operation Innocence Lost, the FBI has committednature and extent of severe form s of trafficking in additional investigative resources to work cases ofpersons in each country, and an assessment of the child prostitution in the targeted field offices.efforts by governments to combat trafficking. See Overall, Operation Innocence Lost is committed22 U .S.C. § 2151n (f). Another important aspect of to a task force approach, joining local, state, andthe T VP A w as the authorization to grant up to federal resources to solve these horrific crimes5,000 non-immigrant visas per year to victims of against children.severe forms of trafficking who are in the III. Federal statutory tools for prosecutorsUnited States, who have been in the United States com bating sex trafficking of m inorsfor at least three years, who agree to assist in atrafficking investigation and/or prosecution, and The federal prosecutors tool kit in cases ofwho wou ld face a significant possibility of sex trafficking of minors con tains four primaryretribution or other harm if they were removed statutes: 18 U.S.C. § 1591 and 18 U.S.C. §§ 2421-from the Un ited States. See 8 U.S.C. §§ 1101, 2423. Most are familiar only with 18 U.S.C.1184; 22 U.S.C. § 7105. The TVPA also amended §§ 2421–2423, which have their origins in thethe federal criminal sex trafficking provisions, Mann Act of 1910. Prosecutors are less familiardiscussed in detail below in Section III, to with 18 U.S.C. § 1591, which was amended byenhance prosecutors abilities to bring sex the TV PA in 2000, and on ly since that time hastraffickers to justice. See 18 U .S.C. § 1591. become a truly effective tool to address cases of child sex trafficking. The strong anti-traffickin g initiative begun inthe last adm inistration has carried through w ith Title 18, United States Code, Section 1591, asequal force to the current administration. Miko, amended in 2000 by the TVPA, provides:supra, at 10. In March 2001, the Department of (a) W hoever knowingly –Justice (D epartment) annou nced that the effort tocombat trafficking would be a top priority for the (1) in or affecting interstate commerce,administration and that U.S. law enforcement recruits, entices, harbors, transports, provides,agencies would coop erate closely to upgrade their or obtains by any means a person; orefforts to combat trafficking. Id. at 9. On January (2) benefits financially or by receiving24, 2002, the Attorney General announced the anything of value, from participation in aimplementation of the special "T" visa program,14 U N IT E D S T AT E S A T TO R N E YS B UL LET IN M A R C H 2004
  16. 16. venture which has engaged in an act described given or received. 18 U .S.C. § 1591(c)(1). in violation of paragraph (1), knowing that "Coercion" is defined as: force, fraud or coercion . . . will be used to 1) actual threats of harm ; cause the person to engage in a commercial sex act, or that the person has not attained the 2) any scheme intended to cause the victim to age of 18 years and will be caused to engage believe harm would result; or in a commercial sex act, shall be punished as 3) threats of legal repercussions against the provided in subsection (b). victim. (b) The punishment for an offense under 18 U.S.C. § 1591(c)(2). Statutory penalties for subsection (a) is – violating § 1591 are quite severe. In instances (1) if the offense was effected by force, where no force, fraud, or coercion is used , and in fraud or coercion or if the person transported which the victim is between fourteen and eighteen had not attained the age of 14 years at the years of age, the statutory maxim um penalty is time of such offense, by fine under this title or forty years imprisonment. If the victim has not imprisonment for any term or years or for life, attained the age of fourteen, or in instances when or both; or force, fraud, or coercion can be proved, the statutory maximum penalty is any term of years or (2) if the offense was not so effected, and life imprisonment. It is important to note that 18 the person transported had attained the age of U.S.C. § 1591 includes an attempt provision. 14 years but had not attained the age of 18 years at the time of such offense, by a fine A prosecutor with a case of international or und er this title or imprisonment for not more interstate sex trafficking of minors may also than 40 years, or both. charge violations of 18 U.S.C. §§ 2421-2423. Each of the statutes requires that the government In summ ary, the statute makes it illegal to show actual travel in interstate commerce, or arecruit, entice, obtain, provide, m ove, or harbor a specific use of the channels of interstateperson, or to benefit from such activities, knowing com merce for illegal sexual activity.that the person will be caused to engage incommercial sex acts where the person is under Although these statutes have been refinedeighteen or where force, fraud, or coercion exists. over the years, they have their origins in the 1910As written, this statute can be applied to both the Mann Act. In this case, age has some advantagespimp, who recruits or provides the minor, and to as there is extensive case law interpreting thethe customer who obtains the m inor for sex. This Mann Act and working out any Constitutionalstatute does not require that either the defendant kinks. See, for example, Hoke v. United States,or the victim actually travel. The federal 227 U .S. 308 (1913) (holding Mann Actjurisdictional hook in the statute uses the language constitutional under com merce power); Camin etti"in or affecting interstate commerce." T his v. United States, 242 U.S. 470 (1917) (holdingprovision makes the jurisdictional reach of this that Congress authority under the Commercestatute broader than the older Mann Act derived Clause to keep the channels of interstatestatutes described below, which require actual commerce free from imm oral or injurious uses istravel. Although there is no case law interpreting unq uestioned).the appropriate reach of the jurisdictional hook in Passage of the PROTEC T Act has madethe specific context of 18 U.S.C. § 1591, significant changes designed to enhance theanalogous provisions are included in 18 U.S.C. effectiveness of 18 U.S.C. §§ 2422 and 2423.§ 922(g) (criminalizing, inter alia, possession of a Title 18, Section 2421 of the United States Codefirearm "in or affecting interstate commerce"); 18 provides:U.S.C. § 84 4(i) (criminalizing use of fire orexplosives to damage or destroy any building, Whoever knowingly transports anyvehicle or other property used in, or affecting, individual in interstate or foreign commerce,interstate or foreign commerce); and 18 U.S.C. or in any Territory or Possession of the§ 1951(a) (The Hobb s Act) (crim inalizing acts United States, with the intent that suchwhich "in any way or degree obstruct[], delay[] or individual engage in prostitution, or in anyaffect[] commerce…"). These statutes have a sexual activity for which any person can besignificant volume of case law interpreting the charged with a criminal offense, or attempts tojurisdictional language. do so, shall be fined under this title or imprisoned not more than 10 years, or both. The statute defines "Commercial Sex Act" asany sexual act for which something of value isM A R C H 2004 U N IT E D S T AT E S A T TO R N E YS B UL LET IN 15

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