Level of Scienter Required for Child Pornography Distributors: The Supreme Court's Interpretation of "Knowingly" in 18 U.S.C. 2252

• NCJ Number: 165867
• Journal: Journal of Criminal Law and Criminology Volume: 86 Issue: 4 Dated: (Summer 1996) Pages: 1341-1382
• Author(s): C Egan
• Date Published: 1996
• Length: 42 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This note critiques the U. S. Supreme Court's decision in United States v. X-Citement Video, Inc., 115 S. Ct. 464 (1994), in which the Court held that 18 U.S.C. Section 2252, a statute that criminalizes the distribution of child pornography, requires the government to prove that a distributor had knowledge of the sexually explicit nature of the materials and the age of the performers.

Abstract

The dissent disagreed with the majority's interpretation of that statute, arguing that the grammatical structure of the provision precluded reading the statute to require scienter. Without a scienter requirement, a distributor would be held strictly liable for distribution of child pornography regardless of his knowledge of the contents of the materials he distributed. The Court reversed the ruling of the Ninth Circuit Court of Appeals, agreeing with the defendant, and holding that Section 2252 is constitutional because the word "knowingly" extends to both the sexually explicit nature of the materials and to the age of the performers. This note supports the majority's decision; however, the majority's analysis was not entirely correct. The majority assumed that the statute required knowledge as the applicable level of scienter. It failed to evaluate alternative levels of scienter. The majority should have considered recklessness as an applicable scienter level. 266 footnotes