UNITED STATES COU RT OF APPEALS FOR THE THIRD CrRCUIT DO CKET NO. 92- 7089 UN I TE D STATES OF AMERICA, AppeUet, ,. STE PHEN A KNOX, ApcUanr. SAT BELOW: Uon. Jam" F. Meaun, USDJ without. jury Criminal No. 91·00074 (JFM) On Re mand From the United States S uprrme Cou rt : An Appeal Fr om. Jud gment orthc United States Di5lrict Court for the Middle Dist rict of Pennsylvania BRIEF OF AMICUS TlU : lNSTlTIJTE FOR MEDIA EDUCATION On the Brief: R'IMald D. Ray, Esq. D avid S. Eggert, Es q. Randal M. Shaheen, Esq. , Ronald D. Ray Cou nn ll on. t Law 1012 South Fourth St. Louisville, KY 40203 (502) .5&4-8300 Arnold & Po rt er 1200 New Hampshi re Ave., NW Was hington , DC 20036 (202) 872-6700 Attorneys for Amicus Inst itute for Media Eduution
Transcript
UNITED STATES COURT OF APPEALS FOR THE THIRD CrRCUIT
DOCKET NO. 92-7089
UNITED STATES OF AMERICA,
AppeUet,
,.
STEPHEN A KNOX,
ApcUanr.
SAT BELOW: Uon. Jam" F. Meaun, USDJ
without. jury Criminal No. 91·00074 (JFM)
On Remand From the United States Suprrme Court: An Appeal From. Judgment orthc United States Di5lrict Court for the Middle
Dist rict of Pennsylvania
BRIEF OF AMICUS
TlU: lNSTlTIJTE FOR MEDIA EDUCATION
On the Brief:
R'IMald D. Ray, Esq. David S. Eggert, Esq. Randal M. Shaheen, Esq. ,
Ronald D. Ray Counn llon.t Law 1012 South Fourth St. Louisville, KY 40203 (502) .5&4-8300
Arnold & Porter 1200 New Hampshi re Ave., NW Washington, DC 20036 (202) 872-6700
Attorneys for Amicus Inst itute for Media Eduution
TABLE OF CONTENTS ..
TABLE OF AUTHORITIES ................. .... _ ... ....................................•..•. i
I. INTRODUCTION ................................................. ................................. 1
E"l"'r1 Testimony. K;"s~1! Sa &- f1"f1lld and Oakes v_ Massachusetts ...................... . ............. .
Why Amicus Enu:red the Knox Case .......................... ................ . __________ ........ 4
D. MEA,"iING OF THE STA TUTE .........................................•.................. 5
Cltild Pomograpby VidtcUpe is SeIf·D=rihed ll< [n(ended To Excite l.usttiIl Desin::s ... .. . ........................................... 7
Medi~ Sexualization ot hu.nirnate Objects .......................... . ........................... 9 Teddy.&ars and H'odn ,l!5: ~irinl Cltildren__ _ ................................... 9 Schoolgirl Unifo""" Erocitized and Schoolgirl Panties Sold. .......... ....... __ ........ : .. _ .. __ . __ 10 All Children as EroOc Fodder fur Child POn>Oi""phy... . ...................................... .. I!
With N"", OlIiW Imprinlin, TC<:Moiogy
m. INTERPRETING THE STATUTE SO AS ~TO REQUIRE NUDITY IS CONSISTENT WITH CONGRESSlONAL PURPOSE AND DOES NOT RENDER THE STATUTI UNCONSTlTUTIONALL Y OVERBROAD ................. _ ...•...... _ ..•..... 13
A. Harm to the Children Bting Di5played ...........•....•.................... _ .... t'( P>n:nw Beuayal is Allusc: .. ___________________ ... __ .......... ___ ................................ \4 Testimony of. Lone Child Pomctnphy V..:tim_ ................................ IS
otf-Camera Sexual Allusc: ............................. _-" ............. .. 15 Otr-Camc-ra Emotional Ab<u<: ................ ... _____ __ .. . .......•. IS otf..um.nI. Phy.icaI Ab<u<: ...•...........•..••..•........•.•..•.•........•..•..•... IS Valul=of"lnanimate~Chili! . ..... ____________ .... IS ""NO! F...:dom of Speech. b.It F.."".,;IQm 10 Abuso~ .. _ _ ___ _______ l.'I ~Similar 10 Slav .. aDd Concentration C.tmp ?risoners~.......... . ... 15 Children ~In~" COnltmp( _ __ ..... ..... ... .. _ _ -" __________________ IS To>ric FalIOIII: Child SeIf·Ha(~ Usc of Drup,
B. Effect!! of Child Pornogr2pby on Tbose Who Vit w It .............. _ .... 16 Pornography ... a Moo:l·Alu:ring Drug __ . _ ______ ....... ............... _____________ 16 Podoplilles Vicleotape America', Chil<1r<n for Masnubation and Sale ........... 17 John Rabun: Otfen<Ir:rs COmmQnIy 1'osse<IO .. Posuognphy .... _ .................... 17 Po<nopaphy.Arouscd.Pe&:>phil .. WOtIld Be Child Abusors. ......................... _ 18 0.-. Li.nno::a Smith: ~ Helped Crcau:!he Child Pomognpby
Market aad. Sauallust For Childrl:n .. ............................. ___ il R=arch Findings on Child Imagery in Pt"l'1u!I" PartIoOl!H, Hustkrffo}. .... 19 Children Posed To Mimic Animals "In HC3!" (Estru!) (fit) ............ 19 Cmadian Sup",,,,,, COWl UnanimollSly Bans I'<>mograpby in IW2 ....... 20 S~ FinaJiy1..ooks to Bm CIIUd PomoJraPhy Pos:scssiOll... ...... . ....... .. _ :ro
C. lnterpretin& the Sialute So As NOI To Require Nudity Will Not Render It Unconstilutionally Overbroad ................. 21
The , ................ 12 DeputySoti~itQr u·Specch"(fo) ......... 13 Child Pornography Images ... Th. Fim Amemlimcnl.. .................................. l4
IV. CONCLUSlON ............................................................................ 25
Nudi1)' is No! N=sa:y For Child To Be: Abused ........................................................ 2' All Children Are Harmed by Child Pornography.. ' '' .................................... 25 All Children Are Put Al R;sk by R;sk by All Pornography... .......... ..................... ,-.25 Childnn Cannol Give ~!nformed CO<l$ellt~ to ThrirOwn Abuse orOimlnutioQ .......... 25
V. REPORT OF UNNEA W. SMITH, M.D ............................................ 26 RI. KnOll: Eyal~atl"" by Fntkrlck L. Co ..... n. Ph.D.
(pichlns 0/ sn-aliltd childrtn ud~tkd from pnsenlofiOlf. awnlable liP"" nqrast from Aml~~
VI. VITAE OF LINNEA W. SMITH, M.D.
( . Slillhtly nYU.d and ~ppl.m.n(fd sinew zubm/sslOtJ to tM ct)1Uf OS
an Qid to nad." IfOl familiar ... /II! lit. cau.)
I. INTRODUCTION
Amicus, The Institute tor Media Education
("IME"), is a not-for-profit corporation. Its character
is to study nsex science" and the mass media and to
disseminate relevant data and provide education to the
public in this area. The Institute was established and
is headed by Dr. Judith A. Reisman. Dr. Reisman is a
widely published and recognized expert in the study ot
the effects ot images and ·sex sciencen on individuals
and sociGty. In particular, she has utilized her
background and experience in the field of com=unications
to study extensively the behavioral effects of erotical
pornoqraphy. In the early years of her career, Amicus
was a creative, performance artist tor network and
educational television, including more than a decade ot
work tor CBS TV's award winning children's program,
·Captain Kangaroo. n Amicus' concern for children caused
her to abandon her successful television career tor
academe, seeking answers to the problam of increasing
child abuse.
Her subsequent investigation ot Dr. Alfred Kinsey
and his team at Indiana university brought her into
prominence with her book, Kinsey. $ex and Fraud (1990)1
The British medical journal Tbe vancet, in reviewing the
1 JUdith Reisman and EdWard Eichel, KinseY. Sex and Fragd. (1990).
"
- , -
book, wrote, "Dr. Judith A. Reisman and her co~1.ague.
demolished the foundation ot the [two Kinsey] Reports .• 2
Specifically, the book found Or. Kinsey's work involved
crimes a9alnst children for the purpose ot gathering
info~ation for the team's child sexuality data base in
order to encourage societal acceptance of adult/child , sex.
Dr. Reisman baa provided expert testimony on
matters involving the effect of pornography In a variety
of forums, and her work has been cited in written and
oral arguments on child pornography before the United
States Supreme Court in Oakes v. Massachusetts, 491
U.S. 576 (1989). and again in a brief concerning child
pornography in Osborne v. 2hi2. 495 U.S. 103 (1990), .a
well as in other CO~ proceedings. D~. Reisman a150
p~ovided data on the a/effects ot pornography in
connection with the 1992 unanimous decision ot the
Supreme Court ot Canada in ~ v. Butler which banned
harmtUl pornography in that country.
S.C.R. 452.
(1992) 1
D~. Reisman has p~ovided expert t.stimony in
va~ious courts and civic hearings both nationally and
internatIonally, includIng: the State at Georgia senate
, , The Lancet, Vol. 337, p. 547 (March 2, 1991).
A copy ot D~. Reisman's resume is attached. ,
- , -
Education Subcommittee, Hamilton County, Ohio,
Prosecutor's Ottice; Hichigan state senate Juvenile
Justice Advisory commission to Corrections; Newport
News, Virginia, City counsel; u.s. Attorney General's
commission on Pornography; and the u.s. Attorney
General, Task Force on Domestie Violence.
In addition, Dr. Reisman has provided eXpert
testimony to the Presidential Commission on the
Assignment of Women in the Armed Forces and data to the
Armed Services committees and members of the Joint
Chiefs of Staff concerning the military's policy toward
homosexuality.
Moreover, Dr. Reisman has been a consultant and
researcher tor the u.s. Depar~ent of Health and Human
Services, the U.S. Department of Education, the u.S. Departm~nt ot Justice, Juvenile Justice « Oelinquency
Prevention and has conducted intensive in service
training tor various law entorcement aqencies includinq
the FBI Academy, the center tor Missinq and Exploited
Children, the Missinq Children-Serial Murder Task Force,
and various police associations.
Dr. Reisman has also provided testimony to
numeroue qovernments concerninq the a/effects of
pornography. including Canada; the Ontario Human Rights
Commission; the Australian Senate Select Committee on
- A -
community Standards; the New Zealand Indecency Tribunal
and the New Zealand Pornography Commission.
Amicus is sub~ittin9 this brief to the court
because she believes that the issue presented by this
case is critically important to the satety and well
being ot our children. Appellant and the solicitor
General are seeking to read the prohibitions in the
Child Protection Act in a narrow and cribbed manner
whiCh plainly distorts the clear meaning and intent ot
the statute and leaves children at risk trom the very
behavior that the statute waS intended to prevent. As
discussed below, total nudity is not a prerequisite to
bringing about the "lascivious K response and the harm
that the statute is intended to prevent.
:n . MEANING Of THE STATUTE
The statute at issue in this case is 18 U.S.C.
S 2256 {2) eE). It criminalize6 the -lascivious
exhibition ot the genitals or pubic area." In their
briet, appellants make much ot the detinition ot
"exhibition,· pulling the term completely out at its
context within the statute to support their position.
~icus will readily concsde to appellant's contention
that "exhibition" means to put something up to be seen.
However, appellants' proposed detinition goes much
turther, 6uppoping that a ·pubic area" cannot be
, -
-exhibited," unless actual flesh is visible. Nowhere
does the statute require, nor does common sense suggest ,
that in order tor the pubic are. to be exhibited, it
must be unclothed. Indeed, ware the "director" of one
ot these films to ask a cameraman to locus 1n on tbe
pubic area of a child the cameraman surely would not
have turned to the director in puzzlRment merely because
the child was Wearing panties. In tact, it is difficult
to know how else the instruction might be given.
The key to proper interpretation of the statute
lies not in the meaning of -exhibition" but rather 1n
the meaning ot "lascivious,· (a definition conspicuously
omitted from appellant'. bri.f). According to Webster,
"lascivious" means "characterized by or expressing lust
or lewdness,· or Wtending to excite lusttul desires.· 4
The plain meaning et the statute cri.inali~e. the
oxhibition or the pubic area -- whether p~rtially clad
or not -- that is done in such a way so as to tend to
excite lusttul desires. Interpreting the statute in sny
other way completely undermines and subverts its
purpose, putting children at added riSk.
AS we discuss below, children are displayed in
the ril .. in a lascivious ~nner. Such completely
unnatural displays ot children Whether clothed or
• Webster's New Qniyersal Qnabridged pictignary, p. 1023 {1981~~
- 6 -
not -- leads to significant harm to the child exhibited
as well a. to the children victimized by tho.e lustinq
after nude children in pornoqraphy. To limit the
statute'~ reach only to nude depictions or children
leaves unregulated the largest segment of child
pornography.
Before discussing current scientific learning and
research which fully supports the proposition that the
films possessed by appellant arouse "lustful desires,M
it seems appropriate to first briefly s~arize the
films at the heart of this controversy.
The videotape.' selt-description is itself
revealing:
an enchanting scane showing a darkhaired beauty of 11 lettinq us have a long, slow look up har dr ••• to view her snow-white panties. • . • SCeneS of a thirteen year old in a leotard skin bikini with a magnificent ass that she puts on display for you as she walkS back and forth slowly and teasingly. • • • Just look at what we have in this incredible tape [called Sassy Sylphs]: about fourteen girls between the ages of 11 and 17 showing so much panty and ass you'll get dizzy. There are panties showing under shorts and under dresses and skirts; there are boobs galore and T-back (thong) bathing suits on girls as young •• IS that are so revealing it's almost like ••• ing th.m naked (lome say eyen better.) KnQx v. United States, Bri.f of United States in Opposition to Petition for a Writ of Certiorari at p.3 (March 1993). (emphasis added)
,
- , -
Th. images in the films included e~t.nded 9hot~
focusing on the pubic area, an off -camera voice saying
Nye love it," another child directed to pull a strap
down over her shoulder as the camera focuses on her
exposed nipple. Kn2X v. United States, Brief of Amicus
CUriae National Law Center tor Children and Families ~
Al., Appendix A (1993).5 AS this Court itself concluded
in its earlier Kll2K decision, the videotapes "contained
vignettes of teenage and preteen temales, ~etween the
ages of ten and seventeen, striking provocative poses
tor the camera. The photographer would tOOm in on
the children'S pubic and genital are. and display II.
close-up view tor an extended period of time. The (11.5
themselves • • • clearly were designed to pander to
pedophiles." ~ v. KD2X. 979 F.2d 815, 817 (3d cir.
1992). Moreover, it i. diffiCUlt to imagine for what
othar purpose appallant would have purchasad the tape ••
Thus, Amicus believes it shOUld be beyond question that
the films' focus on the exhibited children'. pubic area
served a "lascivious- purpose.
That these films should have a lascivious ettect,
even absent nudity is not surprising. Those who purvey
, There can be no .erious que.tion that the relevant
standard is whether the exhibition is intended to be ·lascivious· as to one predisposed to a sexual desire for children. Were a reasonable man standard used no exhibition of children might be found unla~ul. '
-,
- . -pornography have round numerous creative ways to
sexualize i~ages that fall short of total nudity.6
Women and children drinking and eatinq are common
pornography sex cues. Pornographers have reddened,
lips to mimic oral sodomy, often pressing one finger
seductively onto the lips or licking a dash of foamy,
white cra.m ott a finger. 7 Photographs Cocus on 010 •• -
ups of white teeth sugge.tively biting into hot doqs,
bananas, strawberries and apples, a visual equivalent of
the double entendre. sippinq from a straw or eating ice
cream con •• and lollipops are standard pornQ9raphy fare
in which the perf orDers' eyes lust tor copulation. One
Hustler cover displays a young ~londe girl'. race, ber
pursed lips hesitantly touching a clear glass tilled
with a sli9htly (oamy, yellow liquid, an allusion to
"golden showers," a "sexual" aetivity whieh involves the
ingestion o( urine. 8
• As di.cu ••• d, supra, the ~ilas depietions a. "al.ost like ••• 1ng even better).·
deseribe the them nak.d (.ome say
, ·Playboy" has also used a vi.ual montage o~
Playmate o( the Month and then pictures o~ her child to •• xu.li~. t.age. o( children .
its nude a. a
• ~ D. Morri., "anwatehing; A field Guide to Human Behayior at 241 (1980) (di.cussing the u •• o~ ·phallieshaped objects approaChing the open mouth, or by the use o~ gently parted lips, aoistened and reddened, in erotic or sexually teasing photographs.")
"'
- , -
Pornoqrapher~ otten us. inanimate objects to
elicit a sexual response . Teddy bears, hair bow.,
lipstick, un~.rpanti •• , br •• , bobby socks, cace and
pencils have all been eroticized. 9 Handcut's, whiCh
were once associated only with crime and police, have
through their u sa 1n pornoqraphy, become symbolic for
sexual excitement and sadistic aex. The •• ma i. true
tor long, silken ribbons , lon~ ropes , chains, string_
and leather ropes. lO
Especially disturbing i. the u.. by pornographer.
ot schoolgirl unitorms a •• sexual stimuli, proqr.~lnq
child abuse in young consu=ers and borderline and active
pedophiles. II In Japan , vhare achoolqirla vearing navy
blue sailor- style unitorm. and white panti •• ara •• ajor
feature ot pornography, Reuters recently reporte4 that
"Tokyo police found 1200 piece. of schoolqirl.'
, ~ J. Reisman, Soft Porn Plays HArdball , at
pp. 1'2-1'4 (1991) .
" ~ -Pl ayboy" Septeaber 1975 - woman handCUffed for torture; July 198) - gartered, hanging handCUffed woman in a phone booth; January 1978 - imaqes of handcuffed tortured women and a male ridinq atop a smilinq blonde, saddled woman being whipped with a riding crop . H
X and R Rated Senate select Subcommittee
0" Stan4arda Relevant the Supply ot
pp. 11-1) (March Technoloqie., •
"
- 10 -
underwear and un i t orms in the apartment a t a man
arrested tor breaking i nto s chool locker r ooms .
He became aware at the value o! used schoolqirl panti es
tor sale. Schoolgirls can sell their panties tor
around $9 a pair. Pornography vending machines retail
them for several times that much. ,,12
The problem ot sexualiting and abusing children
will only escalate as technology becomes more versatile.
Modern personal computers can now be equipped with
graphics Which pe~it pictures at ch i ldren to be
captured via a pedophile's toom lens and then entered
into the computer. The children can then be digitally
undressed, genitalia enlarged and colored in a nonhuman
way and then used in sex and violence scenes. 13 The
pedophile can insert himself and/or his friends into the
child abuse scenes. As ~virtual reality~ breaks into
the home market and portable systems, a growing number
" Reuters, January 5, 1994. Young male underwear is also advertised tor eale in gay magazines such as "Tbe Advocate.~ ~ ~.g., ~The Advocate,~ April 9, 1991 ("Hot. Sweaty! Jocks, brief •• boxers, worn to qym •••• ")
13 The Washington post recently reported on the use of digital imaging and some at the concerns it raises. ~ "Digital- Imaging Fict ion Leaves No 'Footprints.'" lhI Washjngton POft , Section A, p. 3 (Feb~ary 21, 1994) •
. -,
- 11 -
of pedophiles will have instantaneous access to their
~panty pornography playgrounds.~ 14
In sum, pornography has long given up any sole
reliance on nUdity, and We stand on the threshold ot an
explosion in the proliteration ot pornographic
~aterials.15 It nudity becomes the legal standard , the
growing pedophi le population16 will be tree to acee •• e
vast body ot lawful, sexually arousing child
pornography. As we discuss in the next section this
will serve to put children increasingly at risk for harm
and sexual exploitation.
In. INTERPRETDiC '!"HE STATtI'l'E so AS NOT TO REQtJrRE NUDITY IS CONSISTENT wrrH CONGRESSIONAL PURPOSE AND DOES NOT REHDER THE S'l'A'l'tlTE UKCONSTITUT:IOKALLY OVERBROAD
As this Court has alre.dy recogniz ed, Congress'
purpose in passing the statute was to guard against
legitimate threat. to the phy.ical and psychological
H This future is not so far away. In 1992 Penthouse began to offer ·virtual reality· materials tor sale to it. readers. On February 25, 1994 ·Oprah" discuss.d and described a ·virtual reality· Penthouse pet.
l' Pornography is already a flourishing industry. According to the Attorney Gene ral'. commission on Pornography, it inclUdes more than 450 ditterent magazines, 20,000 adult book stor •• and two million videocassettes and is the third most profitable business segment - - after narcotics and gambling -- for organized crime.
16 .au. Bennett, W., The Index of Leading CUltural Indicators, V~uae 1 at p. 11 (March 1993) •
- 12 -
well-being ot' minors. ~, supra, 977 F.2d at 821. 17
There are two aspects to this harm. First, there is a
signit'icant body ot' evidence that the children directed
to appear in sexual scenes are injured as a result of
the experience. Second, the available evidence also
supports the conclusion that at least some segment of
those who view child pornography for sexual arousal are
likely to respond with acts of sexual violence toward
children. As ~icus demonstrates below, the nature and
extent of this harm is substantial, and there is no
credible evidence to suggest that the resulting harm is
any ditterent whether the children are displayed nude or
partially Clothed.
A. Harm to the Cbildren Being Displayed
As this Court has written previously, children
are incapable of consenting to the diminishment of their
dignity that performing in pornography forces upon them.
Kn2X, supra, 977 F.2d at 821-22. There are numerous
ways in which children who are exhibited in pornography
are harmed. First, the children have either been
torcibly separated trom their parents or they are
17 See Ala2, Webster, W., Pedophilia, "FBI LaW Entorcement Bulletin," January 1984 ("Public concern over this perverted sssault on children was directly expressed in 1918 when congress passed the Protection ot Children Against Sexual Exploitation Act. • • • The dangers ot sexual exploitation and pornography to its victims are only too evident -- physical and emotional suttering- and -.ruined lives.·)
- 13 -
participating with their parents' or guardian's consent,
and usually their _ncourage~ent or brokering and threats
and abuse. Th_ tormer is obviously debilitating to the
child as is the lattar, involving coaplata parental
betrayal and abdication ot their traditional role as
protector ot the child. FUrther, children who are east
in pornography have otten been incestuously abused
betore and atter the tilming. IS These e~otionally
trauaatized and abandoned youngsters are at greater risk
tram AIDS, other sexually transmitted diseases, drug
use, prostitution, suicides and heterosexual and
homosexual homicide. 19
The impact on children east in sex ti1ms was
chillingly recounted in the testimony at a woman who was
torced to appear as a child in such tilms. Although the
quoted excerpt is lengthy, amicus believes it is worth
quoting in tull.
During the making ot the pornography, I was photographed nude and in costumes, raped by men and a variety ot objects, and subjected to sadism and physical
" Senate Hearing 98-1267 Betore the SubcOmmittee gn Juvenile Justice at the COmmittee on the Judiciary "Ettect ot Pornography on Women and Children," (1984) at p. 169. ("I was not allowed to do "certain things" while tha pictur.s were beinq taken. I could, and in tact had to, do those same certain things when pictures ware not being taken.") 19 ~ ~.g., Lloyd,
AttornlilY General' II c~;;';,l,,; Report (July l P86); Senate
tho
- 14 -
abuse. The emotion~l torture vas even vorse tor me. Watched constantly, I vas denied contact vith other "models" and spoken Qbout in the third person like an inanimate object. My thoughts, feelings and objections vere totally irrelevant. In addition, my tather had threatened physical violence and my life if I told about the pornography and I believed him. This living hell shamed and humiliated me beyond description. Many women and children have experienced worse. To me pornography is not freedom of speech, but freedom to abuse. YoU see, it's not just a simple matter of a picture taken. A real person is being physically and psychologically battered, degraded and beaten down. Similar to the experience of black slaves and concentration camp prisoners, the pornography -model" becomes a non-human, stripped of any and all rights. The utter cont~pt shown children and vomen forced into pornography is interna1i~ed by them, We learn to loathe ourselves, to believe we really are leftover trash until self-worth and dignity sre gone. . •• I deeply resent the stigma and contempt we "models" face from a society that permits pornography to llourish • • • • I am one of the lucky ones -- I survived. Many us us died in the making of pornography and afterwards from drugs, alcohol, prostitution, poverty and self-hate. 20
20 Anonymous, Karch 5, 1985 Testimony Before the
Nebraska Judiciary Co-=ittee Rearing on LB 668 "The Child Pornography Prevention Act,-,
•
- 15 -
B. Effects of Child Po~n09~aphy on Those Who view It
The effects of child pornoq~aphy on those who use
it are nearly as chllllnq.21 Research suggests that
po~n09raphy is a mood-altering drug that leads to
addiction among vulne~able adults and child~en.22 We
discussed above the use of schoolgirl uniforms in child
pornography. In Australia, whe~e schoolgirl uniforms
commonly appear in pornography, "copycat" sexual c~ime$
have occu~~ed. The law enforcement office~ supervising
the search for one such child was quoted in the press as
saying;
"
You've got any amount of males that'll .it outside schools and follow kids. Some men even set up videos in their cars or vans and record young gi~ls waiting for buses. They'll video them as they cross their legs and then they'll take the video home for their own sexual gratification .••• We're staggered by the amount of porn in the
"1~~li~bodY of • and the commission of • sexual crimes • • • • A nUMber of experimental studies of sex offenders, as well as laboratory studies of the general population, have found correlations between the USe of obscene material. and either the actual commission of sex offenses or changes in attitude indicating a greater likelihood of committing sex crimes. • •• 53' of the child molester. surveyed intentionally viewed sexually explicit material as part of their deliberate preoffanse preparation.")
" See O. Reed, "POrnography Addiction and CompUlsive Sexual Behavior,· at pp. 249-267 in Kedia. Child~an and the Family. ed, D. Zillman, J. Bryant, A Huston, (199'1.
•
- 1.6 -
cOllUllunity -- the bestiality, the .adomasochism, the children •••• 1'111 convinced ••. there'. a stro ... q link between p orn and the amount ot sex crimes WII qat. 2l
John Rabun, then deputy director o~ the National
Center tor Missing Childran, .tatlld betore a
congressional hearing on "The Ettllct ot Pornography on
Women and Children"
100 percent ot the arrested pedophiles, child pornographers , pimps, what have you, allot these in IIttect child molesters had in their possession at the time ot arrest, adult pornography ranging trom what is in the literature typically ret erred to as sott pornography, such as Playboy, or up to harder, auch as Hustler, end et cetera • • • ."
Senate Hearing 98 - 1267, supra, at pp. 133-134.
Criminologist Tim Tate has written that U.S.
Postal Service statistics show:
"
that at lea.t 80 percent ot tho.e it identities as purchasers ot child pornography are active abuserll • . It a man buys child pornography he does so tor one reason and one reason alone, accordinq to Ray wyre, who runs Britain's only tul1-time clinic treatinq pedophiles. 'The reason is
The Sunday TasminiaD, February 28, 1993 at p. 19. The impact ot pornography can also be .een in the ca.e ot Oakes v. Massachusetts, 491 U.S. 576 (1989). The Commonwllalth alleqed that the detendant took photos ot his stepdauqhter "in increasinqly revealing .tate. ot undress including clothes trom Frederick'. ot Hollywood.. Ultimately, he took photographs ot the victim nude, talling her that he wanted to "make her big tor Playboy." Briet ot the Commonwealth ot MaSsachusetts at p.8.
"
- 17 -
that he wants to have sex with children.' The t act that he may not have done so is more likely to ~e a question o t availa~ility or the tear ot getting caught. 24
Moreover, sex of fender treatment literature regularly
discusses that tho.e who mastur~ate to child imaqe s are
commonly inVOlved in child abuse. 25 Dr. Linnea Smith, a
psychiatrist specializing in medi a research, has written
that "Playboy'S persistent and long-running use of
i=age5 of children has not just ted the demand f or
seX\lal access to children but has "help[ed ] to create
it:. N26
" Tate, T. Liberties, ;~h:~ (1992) •
p.207,
25 ~ Reed, supra, at 263; v. Cline, "Pornography Effects! Empirical and Clinical Evidence," in MediA. Children and the Family, ed. Zillman, Bryant and Huston (1994) (finding that those who masturbate to child i mages are highly likely to sexually assault chi ldren . ) .
rn sharp contrast to this evidence stands the psychological report of Appellant by Dr. Frederick Covan that Appellant does not pose a threat to the community. As the attached statement of Dr. Linnea Smith discusses, there are substantial weaknesses in Dr. Cavan's report.
" Dr. Linnea Smith, "It's Not Child's Play," 1994. A 1989 study of pictoriAl representations in "Playboy" trom 1954-1964 found, among other things, that
o 1,675 child image. were associated with nudity o 1,225 child imag8s were associated with
genital activity o 989 child images were associated with Adults o 792 adults were portrayed as pseudo-children o 592 child imaqes were associated with torce o 267 child images were associated with .ex with
. .., [ Footnote continued on next page )
- 18 -
One particularly et!ective way in which child
pornosraphy leads to sexual abuse lies in the
dehumanizing view and treatment of the chi ldren
exhibited. By placing the children in unnaturally
seductive poses, the children are directed to mimic
ani~als in heat or estrus. 27 Dehumanizing children in
this way makes it easier for the pedophile to justify
sexual abuse.
As the evidence begins to mount that pornography
is ~ore than just a pleasant diVersion, steps have begUn
to be taken to mitigate its harmfUl impact. In February
1992 the Canadian Supreme court. efter reviewing the
extensive research in this area, unanimously outlawed
pornography. 28 The Justices concluded that any
[Tootnote continued from previous page] ani~ls or objects
o 51' of the child cartoons and 46' of tha child photographs showed children age 3-11.
Almost all depictions of child •• xual abuse portrayed the child as unharmed or benefited by the activity. J. Reis_n. Executiye Summary, supra, at 10.
" ~, s..JiI •• Australian Senator MarIana Goldsmith, "Pornography and SexUal Violence,- Quadrant, p. 29 (November 1993) (-even many apparently nonviolent images a! naked women show them presenting as i! in oestrus -as if already aroused and frequently in poses reminiscent of animal seXUality."); Morris, supra, at p. 239 (~Th'" ancient rump-display or the sexually active famale is rarely used in the human .pecies. Exceptions are !ou.nd in . certain (po:rnoo;rraphic) advertisements.")
" B.... v. Butler, [1992] 1 S.C.R. 452.
",
- 19 -
wo=en" and which "could cause har." should be banned.
In 1992 the Au~tralian parlia=ent restricted X-rated
cable TV and is now looking into restrictions on R-rated
materials. Recently Reuters reported that Sweden, which
has become a "hub tor international trade • • • in child
pornography" is considering banning it. possession.
Deputy Justice Hinister Reidunn Lauren was described as
having been "deeply shocked by the graphic scenes. n29
C. Interpretinq the Statute so As Not to Requfre Nudity Will Not Render It unconstitutionally Overbroad
Appellant has suggested that interpreting the
statute so as not to require nudity renders it overly
broad in that it will no longer be directed to the "hard
core o! child pornography." Appellant's Brie! at 34. 30
" Reute rs wire story, January 18, 1994.
30 In making his overbreadth argument, appellant asserts that it the statute is not read to apply only to nudity, a parade ot horribles viII occur and parents will quake with tear lest innocent pictures taken o! their children in ballet class or at the beach will be branded criminal. These tears are completely untounded. Further, it is not the parents ot ballet students who are raising these sensationalized tears or seeking to overturn the result in this case. Rather, it is, among others, "Playboy" which has written extensively about this case and amicus Aperture Foundation, Inc. which publishes "Aperture" magazine a publisher ot child pornography "art." Even appellant's counsel, Lawrence A. Stanley i. listed as a ~anuscript editor tor "Paidika: The Journal ot Paedophilia" and has been reported by the Columbia Journalism Review as the publisher ot the magazine "Uncommon Desires," which
[Footnote continued on next page]
- lO -
E~~v~r, as tne supr~:e court ha l r~co9nited and al t hil
because of the government's I trcnq interest in tha
phYlical and =antal ~ell-bei~ ot ohildren. 31 As ~~
acc.pt Appoollent's ergu~.nt would nsrrpy t he statute ~c
luch an extent thet it ~culd be larqely ineffective in
carryinq out itl c~ngTeasl~nally intend-ed, and
con.UtuUcnally andor"ed, pJ.rpos •.
S.uoond, beeau,. .. tha statut. un" illa9"" and not
vorda, any a"alysia ot- its ocnstitutlonality ... ust tAke
into account tn. gr.-t.r i~ct ot i.aq.. On tn. brain
and the r.sultlnq QT •• ter i ntluenc. on b&havior. Ther.
can be little douot that i __ gel are .ore powerfUl
cOlllDllnicaton than worob.
AI wal statad to t~ United Stats" Supr ••• court
1n a 1989 amicus brief:
continUed It •• If iU
H!!, lark v. "
Fubpr, 458 U.S. 747, 756 (1982).
- 21 -
V15u~1 d~ta, ~h.th&r 900d or bAd, true or tal.e, is processed as ~rea18 i~diately, forcefully and ~lth pernsn.nce, while c02potlnq pr i nt! ~peeen is proc.ss.d ta.bly, o r i n 502. c a seS not .t .11 . .• Th.r. i o: • gro~inq body o f acia ntitlc nGuroche~ic.l r ••• arch wh ich Shovs t h a t picture" are proc •••• d .nd r e tained by the cr.in i n a differe nt ~anner than t he written word. 3Z
thill vi .. w.
" ,. "
Taxen tro~ tno Mation " l ~rchiv811, ·powsrs of p.r.ua. i o n ,- II nev exhibit ot ~orld War I I post.r art, qrapples provocativ"ly .. ith. • the manipulative IaVic in villual symbol.. • HOW do iaaqss evo);;e emotion. • glr.cting the Office o f W~ Infor.atlon. • was the colol:>rated poet-, Archibald "'sOLaioh _ Ttl. aan under"tood l ... ~ .. q. "nd iaaq .... " C.v bureaucr .. t s hav .. s i nce . They depict .,uscul .. r -.n <U>d- deteraine<l WOIIlan, forthright citizens and imperilod childron, roaring blast furn .. =aa .nd t..mlnq ••• ..ely lIn.. iIOnd .. n anqry Statu. or Liboorty lind Uncle 5&11. 33 -
Brier of v. ~,
Concarned WODen of Aaerica. .. 9~ U.S. 1.0 l (1990).
sectio n
",;.blngtgo ppst. ,
- 22 -
In .u~, the u.e Of se~SI p ictures o~ children, rather
than the wri tten de~cription of sex yith children, is
likely to b4ve a ear Eore pOYerrul and digturbini
.rtect.
It is no accidlnt that pedophiLes rlverl th~ picture ~r. than the Yord. The plcturl. ot Golesration ~tiGulate thn on a deeper and IItronqor 10"8l, be it neurochemic.I or p.ychological. Tn • • ~loitation of • child in a phot oQroph, lo"il or VidlO 11 cl.ar, de""'"tatin'l, al'lCl it retains ita .Ipra"ed pot.ncy tor thoa. that possess Ind vie .... i t . . •. tt 15 til:e to stell the tid. of this t erribl e bolocau.t which ol.lma thoul.nds o~ innoc.nt ohildren .e ltl victiAS. p OI •••• ion ot pictori.l child pornography c.nnot b. ~lven th. SAme First ~endD.nt prot.ct ion as written dep i ction. I ntuition tollow. the old sdaQe that "a picture I , worth a thou.and worde,· Unfortunately, • sin91. photoqraph ot a lole,ted child .polk. vOlual' .bout the tragady that ha. bet.11ln that child. J4
There can be noth ing constitutionally lnfl~ ln rOlding
tbi~ ItltUtl 10 al to prot,ct the innoc.nc. of ~hild~en.
rv. C9!fCLJlSJo.
k~icus re,plctt~lly 5u~ite th.t thil Court
shoul~ rejeet .ny notion that the Child ~oteetlon Act
was intended to cover only the use ot nude children in
child pcrno9rlphy. AS discuslad lbo"e, nudity 11 not
necessary, and ill most otten not u~, to leru!lly
J. AIIoic~ 8rle: Of Concerned WODen of Al:lerica, :lII$l3I, at pp. n - H.
- 2l -
addition, the ha~ that ehild pornography pregent$, both
to the thil~ren eomproAlsed by their par.nts a nd
displayed in th. ~at~riAls and to those vho v ould u ••
child "perrormer" bel"", "xhlblt.d is being p ....... itted to
ve.ar panties or not.
Reap"ctfully auloaittac:l,
~on.ld D .. Ray, £~q. ~onald D .. Ray cDuns"IIDrs at LBv 1012 South Pourtil St. ~iavl11., ~y 40l0J (502 f 584-1300
C.vid S. Eqq.rt, Esq. "n~al M. Shaheen, Esq. Arnold' p"rt.r 1200 New Hampshire Ave., NW Vas llillqton, J;)C 20036 ·:lC2) S72 - HOC
Co"n ... l to .... ieu .. curiae ~. Instit"t. tor M.die Edue _tlon
RIDDtt Df Llnnoa W. SDitb . M.D
The rollowing cO£Centa are In response to a
reque~t by AKICUS, In~tituto for Madi a Educati on, tor an
ev~luAtlon of t ha p~y~boloqi~.l raport on St.pb~n Xnox
sublllittltd by Pl'ed.aricl< L. cavan, Ph.D., and d ... ted
I am • psychiatrist speCializing In issues of
pediatric tral1mi'l and ",aB~ .... ,Ua ~cnt .. nt. II copy ot IlY
re~uDC is attached.
'l'!Ia raport as ""itun aoemed li.mite<l. In .tope
wlUl a lla joci t y ot tluo history and evaluation based. on
tha surt ... ce level content ot Mr. ~nox's selt-di.~loau~
lo1Iich wall accepted uncritically. Sex offenders in
genera l and padophilaE in particular ..... ctrongly
d@tanded, utill~ing t o a gr .. ate~ extent tne det*MS.
_chanilDlS ot danial, rationalization, and . ini.iz"tion.
det.or:aination or • d.vhnt .r ...... ll Il.iararchy.
,
- , -
It would be pertinent to have mora Info~tlon
about the 90a1a and f ocus of Xr. Kno~'. praviou.
Fhy.c~otn.r.py , tna .~.ri.nc. ot tnarapiata in tha
specialty .~ •• o f •• x-offanea .. tr_c .. nc , Kr. ~OX'.
coll;oli""ca ..- i tl> tr.a>:DBnt. and. it hi. t r •• t ... nt "'UO"
00\100 "rda .. a d.
experience of • •• t url>llti ng to Playboy- 11k. ".gul" ..
while tant •• lz1nq to same-a,. f ... l" pcu-a. I n the
urly 11170' . th .. tre<fUIOIICY Of ClI!ld i ... , .. in P l ayboy '
the .'.,ad .... i_g •• and h1 .. fant •• y cont"nt ccll.ld
include childr .n •• v l abla •• xual te r g"t • .
At on .. point, be "' •• or1&o4 fant •• ie. ot 13 end
14 year-old 9 1rla 1n which n .. " ould "make-out- but n.~r
-1I.&k1nc; - ouc- .. an and in itad!, In ... lIWll !antud •• 11
h19h1y unuSUAl and .oca cOEDOnly •• rvel a. .. precursor
to additiona l s.xu .. l behavior •.
At another poine In tn" .. aport, th .. • ••• xu.l'
•• ph ... l a-.l. Ttli. 11 unuAl1lIl alI4 .or .. d i rUcult t o
.ccept in light of hi . hi.tory of eo~id.rable ri.k
I:.kin<] 1:0 obt.in Child IJexuoi .... t .. rt.l , (tluore h roo
de.~ripl:lon of th .. content of the .. ~t .. rJ.l i n que.l:l en
in Mr. ~nox·. fl r.t conviction of receipt e nd po . .... ion ,
-. -o~ child pornography). The r ole of pornography in
fanta sy production 05 ~.ll as a ~o.turbatory crutch doss
not support t~e c l a i m of "ase~al· fantasies.
Hi& f anta.iGs of uncrl~ie.l accapt.nc. and
cooplsto adoration by littl_ g irl& i • • comnon component
ot t ho fa nta.i@s of p@dophiles and doesn't decre.se tha
likelihood of 8eKUol1~ed tant • • t... R •••• rcn has shown
that deviant fant •• i.. l .a. to deviant cot i nq out and
h;onda - on sexual off .. ns.... The vast lOa:!or ity of ~ild
porno9Tophy consumers molost children .
~. Knax'. firet oar •• r choice involved t • • cni~
at •• ~ool og@ laval of h is •• ~1 object inter •• t ,
hi gh- risk situati on. His history i ncluded the
conviction for r ece ipt sn4 pee •••• i on of child
pornography on two ~c •• ion.. Hi. first conviction
resulted in d isruption ot his li t e, loss ot career,
placement on prObation, an~ 1nvolve~t in
Pl'l'chotnerapy, y.t h. t<><>l< _.ur.o. to obtain chil~
porn"9T8phl' on 8notn.u- occ8"ion d.t .u-.inecl by ti>. 1.9a1
"yate.. Thi" is co~llinq evidence ot the severely
co.pul_lv. asp."t ot hi. behavior. Th. majorit y of •• ~
otfender_ sre obs •• aivaly involva~ wi t h pornoqraphy. It
i. diffiCUlt to understand the basis of Dr. Coven's
"o",ton; in predictlnq tha.t Stephan Jl:no~ 'a futu .. e
bahavior will not preaflnt a .. 1&k to chl1drfln or tne
c:ol3lUJ\ity. -,
•
- , -
• .•. ' If •• an buys ~hl1~ porn09r.~~y h. dolt •• 0 to~ ona ..... .an .nd ..... r_.en . lona,' accordinq t o ~ay Vy~ •• who run. 8rita~n ' . o',IV tu.ll - tl •• ellnie treating padopI!11... 'D ....... on t. t hat ha .. anta to 1I.v. ... v ith ch ild ... n. ~. r.=t that n. aay not h.". <I""" .., i • .ora ILkaly t o t.. '" qua.clon ot availabill ty or th. rIO ... ot gattinq c auqht than ... vul.! .. n at t he ... ry concept .'·
"Ita (the U.S. Po.tal 'arvl .. . ) _clItiat! .. ," "nOV t/lac '" l ••• t 10 par cant of those it 14.h01tl •••• pun=hil&ara at child p<>J'l\O'JI"aphy ar. actl"a abu...... ' The ... at .1thoor h ••• n' t had the opportunity to .bu •• or 80r. probably bav.n' t ~.n c.~ghc rat ,' e'" poet_l aervice ,peelal a.ant ".rnMl." (I t :l1n . p . l Oll.
• • ... Chl ld pornographT Can n.va .. be '" ... r.ty-valva both becau •• th. chl 1dr-n 111 it lOra beln; u.uaad. and Mcau •• the pedopnl1 •• v •• it to ",Illdat. th.ir r •• 11ng&, to .aka thea r •• l tilay Ira no~ l. I n that way it h.w .... their inhibition. about going out .nd abuaing childran rathar than pr ••• nting t ham fro.. dOin'i ao. n (It,iII, p. 211)
