NCJ Number
137097
Journal
Colombia Law Review Volume: 90 Issue: 6 Dated: (October 1990) Pages: 1779- 1803
Date Published
1990
Length
25 pages
Annotation
The 1977 Protection of Children Against Sexual Exploitation Act prohibits the production and distribution in interstate commerce of pornographic materials involving minors. A 1984 amendment to the Act restricts the distribution of non-obscene child pornography.
Abstract
The Act raises constitutional questions because it fails to require that the government prove any level of criminal intent regarding the age of the minor involved or to provide a mistake of age defense. Thus, producers and distributors of non-obscene adult pornography might be afraid of mistakenly hiring minors and thus refrain from producing sexually explicit, but constitutionally legal material. The article overviews the Act's legislative history and examines the rulings of Federal and State courts that have considered the lack of a criminal intent requirement. The Act is then examined using an overbreadth analysis, and the factors that are relevant in applying the overbreadth test to the issue of age in the Act are considered. The author then applies a multifactor test to analyze the constitutionality of the Act's failure to require proof of scienter or to provide a mistake of age defense. He concludes that the first amendment requires a mistake of age defense for distributors of such materials, but permits producers of pornographic materials to be held strictly liable. 172 references