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Child Protection Act Of 2012

Rep. Lamar Smith

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Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 6063) to amend title 18, United States Code, with respect to child pornography and child exploitation offenses.

The Clerk read the title of the bill.

The text of the bill is as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

This Act may be cited as the ``Child Protection Act of

(a) Certain Activities Relating to Material Involving the Sexual Exploitation of Minors.--Section 2252(b)(2) of title 18, United States Code, is amended by inserting after ``but if'' the following: ``any visual depiction involved in the offense involved a prepubescent minor or a minor who had not attained 12 years of age, such person shall be fined under this title and imprisoned for not more than 20 years, or if''. (b) Certain Activities Relating to Material Constituting or Containing Child Pornography.--Section 2252A(b)(2) of title 18, United States Code, is amended by inserting after ``but, if'' the following: ``any image of child pornography involved in the offense involved a prepubescent minor or a minor who had not attained 12 years of age, such person shall be fined under this title and imprisoned for not more than 20 years, or if''.

(a) Civil Action To Restrain Harassment of a Victim or Witness.--Section 1514 of title 18, United States Code, is amended-- (1) in subsection (b)-- (A) in paragraph (1)-- (i) by inserting ``or its own motion,'' after ``attorney for the Government,''; and (ii) by inserting ``or investigation'' after ``Federal criminal case'' each place it appears; (B) by redesignating paragraphs (2), (3), and (4) as paragraphs (3), (4), and (5), respectively; (C) by inserting after paragraph (1) the following: ``(2) In the case of a minor witness or victim, the court shall issue a protective order prohibiting harassment or intimidation of the minor victim or witness if the court finds evidence that the conduct at issue is reasonably likely to adversely affect the willingness of the minor witness or victim to testify or otherwise participate in the Federal criminal case or investigation. Any hearing regarding a protective order under this paragraph shall be conducted in accordance with paragraphs (1) and (3), except that the court may issue an ex parte emergency protective order in advance of a hearing if exigent circumstances are present. If such an ex parte order is applied for or issued, the court shall hold a hearing not later than 14 days after the date such order was applied for or is issued.''; (D) in paragraph (4), as so redesignated, by striking ``(and not by reference to the complaint or other document)''; and (E) in paragraph (5), as so redesignated, in the second sentence, by inserting before the period at the end the following: ``, except that in the case of a minor victim or witness, the court may order that such protective order expires on the later of 3 years after the date of issuance or the date of the eighteenth birthday of that minor victim or witness''; and (2) by striking subsection (c) and inserting the following: ``(c) Whoever knowingly and intentionally violates or attempts to violate an order issued under this section shall be fined under this title, imprisoned not more than 5 years, or both. ``(d)(1) As used in this section-- ``(A) the term `course of conduct' means a series of acts over a period of time, however short, indicating a continuity of purpose; ``(B) the term `harassment' means a serious act or course of conduct directed at a specific person that-- ``(i) causes substantial emotional distress in such person; and ``(ii) serves no legitimate purpose; ``(C) the term `immediate family member' has the meaning given that term in section 115 and includes grandchildren; ``(D) the term `intimidation' means a serious act or course of conduct directed at a specific person that-- ``(i) causes fear or apprehension in such person; and ``(ii) serves no legitimate purpose; ``(E) the term `restricted personal information' has the meaning give that term in section 119; ``(F) the term `serious act' means a single act of threatening, retaliatory, harassing, or violent conduct that is reasonably likely to influence the willingness of a victim or witness to testify or participate in a Federal criminal case or investigation; and ``(G) the term `specific person' means a victim or witness in a Federal criminal case or investigation, and includes an immediate family member of such a victim or witness. ``(2) For purposes of subparagraphs (B)(ii) and (D)(ii) of paragraph (1), a court shall presume, subject to rebuttal by the person, that the distribution or publication using the Internet of a photograph of, or restricted personal information regarding, a specific person serves no legitimate purpose, unless that use is authorized by that specific person, is for news reporting purposes, is designed to locate that specific person (who has been reported to law enforcement as a missing person), or is part of a government- authorized effort to locate a fugitive or person of interest in a criminal, antiterrorism, or national security investigation.''. (b) Sentencing Guidelines.--Pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this section, the United States Sentencing Commission shall review and, if appropriate, amend the Federal sentencing guidelines and policy statements to ensure-- (1) that the guidelines provide an additional penalty increase above the sentence otherwise applicable in Part J of Chapter 2 of the Guidelines Manual if the defendant was convicted of a violation of section 1591 of title 18, United States Code, or chapters 109A, 109B, 110, or 117 of title 18, United States Code; and (2) if the offense described in paragraph (1) involved causing or threatening to cause physical injury to a person under 18 years of age, in order to obstruct the administration of justice, an additional penalty increase above the sentence otherwise applicable in Part J of Chapter 2 of the Guidelines Manual.

(a) Administrative Subpoenas.-- (1) In general.--Section 3486(a)(1) of title 18, United States Code, is amended-- (A) in subparagraph (A)-- (i) in clause (i), by striking ``or'' at the end; (ii) by redesignating clause (ii) as clause (iii); and (iii) by inserting after clause (i) the following: ``(ii) an unregistered sex offender conducted by the United States Marshals Service, the Director of the United States Marshals Service; or''; and (B) in subparagraph (D)-- (i) by striking ``paragraph, the term'' and inserting the following: ``paragraph-- ``(i) the term''; (ii) by striking the period at the end and inserting ``; and''; and (iii) by adding at the end the following: ``(ii) the term `sex offender' means an individual required to register under the Sex Offender Registration and Notification Act (42 U.S.C. 16901 et seq.).''. (2) Technical and conforming amendments.--Section 3486(a) of title 18, United States Code, is amended-- (A) in paragraph (6)(A), by striking ``United State'' and inserting ``United States''; (B) in paragraph (9), by striking ``(1)(A)(ii)'' and inserting ``(1)(A)(iii)''; and (C) in paragraph (10), by striking ``paragraph (1)(A)(ii)'' and inserting ``paragraph (1)(A)(iii)''. (b) Judicial Subpoenas.--Section 566(e)(1) of title 28, United States Code, is amended-- (1) in subparagraph (A), by striking ``and'' at the end; (2) in subparagraph (B), by striking the period at the end and inserting ``; and''; and (3) by adding at the end the following: ``(C) issue administrative subpoenas in accordance with section 3486 of title 18, solely for the purpose of investigating unregistered sex offenders (as defined in such section 3486).''.

Section 102(b)(4)(B) of the PROTECT Our Children Act of 2008 (42 U.S.C. 17612(b)(4)(B)) is amended by striking ``$2,000,000'' and inserting ``$4,000,000''.

Section 101(d)(1) of the PROTECT Our Children Act of 2008 (42 U.S.C. 17611(d)(1)) is amended-- (1) by striking ``to be responsible'' and inserting the following: ``with experience in investigating or prosecuting child exploitation cases as the National Coordinator for Child Exploitation Prevention and Interdiction who shall be responsible''; and (2) by adding at the end the following: ``The National Coordinator for Child Exploitation Prevention and Interdiction shall be a position in the Senior Executive Service.''

Section 107(a) of the PROTECT Our Children Act of 2008 (42 U.S.C. 17617(a)) is amended-- (1) in paragraph (4), by striking ``and''; (2) in paragraph (5), by striking the period at the end; and (3) by inserting after paragraph (5) the following: ``(6) $60,000,000 for fiscal year 2014; ``(7) $60,000,000 for fiscal year 2015; ``(8) $60,000,000 for fiscal year 2016; ``(9) $60,000,000 for fiscal year 2017; and ``(10) $60,000,000 for fiscal year 2018.''.

Section 105(e)(1)(B)(i) of the PROTECT Our Children Act of 2008 (42 U.S.C. 17615(e)(1)(B)(i)) is amended by striking ``the volume'' and all that follows through ``or other''.

Not later than 90 days after the date of enactment of this Act, the Attorney General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report on the status of the Attorney General's establishment of the National Internet Crimes Against Children Data System required to be established under section 105 of the PROTECT Our Children Act of 2008 (42 U.S.C. 17615).

Pursuant to the rule, the gentleman from Texas (Mr. Smith) and the gentleman from Virginia (Mr. Scott) each will control 20 minutes.

The Chair recognizes the gentleman from Texas.

Rep. Lamar Smith

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Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous materials on H.R. 6063, the bill currently under consideration.

Is there objection to the request of the gentleman from Texas?

There was no objection.

Rep. Lamar Smith

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Mr. Speaker, I yield myself such time as I may consume.

Internet child pornography may be the fastest-growing crime in America, increasing by an average of 150 percent per year. Every day, online criminals prey on America's children with virtual anonymity, and according to recent estimates there are as many as 100,000 fugitive sex offenders in the U.S. Congress has taken important steps to combat child exploitation, including the passage of the Adam Walsh Act in 2006 and the PROTECT Our Children Act in 2008.

But our work is not yet done.

That is why Representative Debbie Wasserman Schultz and I introduced H.R. 6063, the Child Protection Act of 2012, that provides law enforcement officials with important tools and additional resources to combat the growing threat of child pornography and exploitation. This bipartisan legislation increases penalties for child pornography offenses that involve young children and strengthens protections for child witnesses and victims.

The bill allows a Federal court to issue a protective order if it determines that a child victim or witness is being harassed or intimidated and imposes criminal penalties for a violation of that protective order. The Child Protection Act ensures that paperwork does not stand in the way of the apprehension of dangerous criminals. This bill gives the U.S. marshals limited subpoena authority to locate and apprehend fugitive sex offenders.

Unlike the other 300 Federal administrative subpoena powers, which are used at the beginning of a criminal investigation, a marshal's use of subpoena authority under this bill will occur only after, and only after, these actions occur:

The fugitive is arrested pursuant to a judge-issued warrant, indicted for committing a sex offense, convicted by proof beyond a reasonable doubt, and sentenced in a court of law;

The fugitive is required to register as a sex offender;

The fugitive pleas or otherwise violates their registration requirements; and

A State or Federal arrest warrant is issued for violation of the registration requirements.

This narrow subpoena authority is critical to help take convicted sex offenders off the streets.

H.R. 6063 also reauthorizes, for 5 years, the Internet Crimes Against Children task forces. The ICAC task forces were launched in 1998 and officially authorized by Congress in the PROTECT Our Children Act of

The ICAC Task Force Program is a national network of 61 coordinated task forces that represent over 3,000 Federal, State, and local law enforcement and prosecutorial agencies dedicated to child exploitation investigations. Since 1998, the ICAC task forces have reviewed more than 280,000 complaints of alleged child sexual abuse and arrested more than 30,000 individuals. The Child Protection Act increases the cap on grant funds for ICAC training programs and makes several clarifications to provisions enacted as a part of the PROTECT Our Children Act.

Finally, the bill requests a report from the Justice Department on implementation of a national Internet crimes against children data system. Yesterday, Senator Blumenthal and Senator Cornyn introduced the companion bill in the Senate. This bipartisan, bicameral bill is supported by a number of outside organizations, which include the National Center for Missing and Exploited Children, the Major City Chiefs of Police, Futures Without Violence, the Fraternal Order of Police, the International Association of Chiefs of Police, the National Alliance to End Sexual Violence, the National District Attorneys Association, the National White Collar Crime Center, the National Sheriffs' Association, the Surviving Parents Coalition, the Rape Abuse Incest National Network, the National Alliance to End Sexual Violence, and the National Association to Protect Children.

Once again, Mr. Speaker, I want to thank Congresswoman Debbie Wasserman Schultz for her great work on this issue, and I urge my colleagues to join me in support of this important legislation to protect America's children.

I reserve the balance of my time.

Rep. Robert C. Scott

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Mr. Speaker, I yield myself such time as I may consume.

I rise in opposition to H.R. 6063. While I can appreciate the apparent attempt in the bill to better protect children who are victims of sexual abuse, it not only fails to achieve that objective, but it also presents serious constitutional concerns and other problematic provisions.

First, the bill creates a rebuttable presumption in 18 U.S.C. section 1514 that, if an individual posts a photograph or personal identifying information about a person subject to a protective order, it ``serves no legitimate purpose,'' which is an essentiable element of the offense of harassment and intimidation. This rebuttable presumption would shift the burden of proof in these cases from the accuser to the accused by requiring the accused to prove that posting of the photograph or information about the person served a legitimate purpose. Therefore, under current law and the fundamental principles of the Constitution, the burden is on the accuser to prove beyond a reasonable doubt this element of the offense, not the obligation of the accused to prove his innocence. This provision violates the constitutional rights of defendants who may be innocent of the underlying charge and who are entitled to be presumed innocent.

The coincidental inclusion of a protected person in a family photo posted over Facebook or an email, which may be unintentional and coincidental, should not be presumed to be a crime.

What's wrong with the normal process by which the accuser has to show that the posting was for harassment or intimidation? To make an innocent person prove his innocence is not only unnecessary and unfair, but unconstitutional.

In Francis v. Franklin, a 1985 Supreme Court case, the government argued that the constitutional issue regarding the rebuttable presumption there was overcome by the defendant's ability to rebut the presumption. The Supreme Court, however, found that argument unpersuasive. The Court said that a mandatory presumption instructs the jury that it must infer the presumed fact if the State presumes certain predicate facts. Such a presumption can be conclusive or rebuttable. The key is whether it is mandatory, that is, whether the jury must make a presumption, possibly subject to rebuttal, if the State proves certain facts.

In light of the fact that section 3(d)(2) of H.R. 6063 explicitly mandates the court shall presume there was no legitimate purpose, this provision is exactly the kind of mandatory rebuttable presumption that the Court repudiated in the Francis decision.

Another problem with the bill is it adds a new criminal offense of violating a protective order. Minor activities that are not intended to cause harm or distress, such as a phone call or an email, can result in a Federal criminal charge, not as a violation of Federal law protecting a witness from harassment or intimidation--there are already laws against that--but as a technical violation of a civil order.

Judges already have plenty of laws and authority to protect victims and witnesses. There's already a comprehensive statutory scheme in place to assist judges and law enforcement in protecting witnesses in Federal criminal proceedings. In addition to Federal criminal provisions with heavy penalties and the authority for judges to enter protective orders for the protection of all witnesses, including children, the judges have immense contempt and other powers to accomplish this goal. Thus, the additional criminal offense is unnecessary and unproductive. We should stop adding unnecessary criminal laws to the criminal code.

In the previous Congress, we held hearings regarding the general problem of over-criminalization of conduct and the over-federalization of criminal law. Members of both parties then expressed concern over this. We already have over 4,000 Federal criminal offenses in the code, along with an estimated 300,000 Federal regulations that impose criminal penalties, often without clearly setting out what will be subject to criminal liability.

This bill is yet another example of adding more unnecessary crimes and penalties to the Federal code. Moreover, such a provision moves the protection responsibility from the judge in the case to a prosecutor who decides when there is a violation and when to bring charges for the violations. Given the fact that many proceedings involving child witnesses also involve family members of the child witness in emotionally charged situations, the addition of more criminal provisions to this mix is not helpful.

This provision allows the imposition of a Federal felony up to 5 years in prison for a violation. It is unnecessary, overbroad, and harsh, especially given a restraining order can be violated by simply making an innocent phone call.

A further problem with H.R. 6063 is that it would give U.S. marshals the authority to issue administrative subpoenas to investigate unregistered sex offenders. I'm not convinced that extending this extraordinary ex parte judicial authority is appropriate.

Research has clearly shown that registered sex offenders who may not be compliant with the law are actually no more apt to commit a criminal offense than those who are compliant. So there is no compelling reason to create a special authority for U.S. marshals in the case of registered or unregistered sex offenders. There's no urgent or imminent threat context in rounding up alleged noncompliant sex offenders which, as we said, are no more likely to commit a crime than those who are compliant with all of the technicalities of the law.

The existing statutory scheme for administrative subpoenas for law enforcement focuses on extreme situations, such as the Presidential threat protection administrative subpoena. We approved that power a few years ago to assist in the protection of the President when the director of the Secret Service has determined that an imminent threat is posed against the life of the President of the United States, and he has to certify the same to the Secretary of the Treasury. And the Attorney General has the same kind of power in child exploitation cases. Both are Cabinet-level officials.

I offered an amendment to remove the provisions extending this type of judicial authority to the U.S. Marshals Service. Upon the failure of that amendment, I then offered an amendment to continue limiting the authority to issue administrative subpoenas to Cabinet officials to ensure that this extraordinary judicial power is used discreetly and only in circumstances where it is absolutely warranted. Those amendments were defeated; and, therefore, this bill gives more power to the Marshals Service in cases where there is no proven need for the power, more power than the Secret Service has when faced with an imminent threat to the President of the United States.

Despite serious constitutional issues and these other problems, this bill was introduced on June 29 and was marked up in committee 12 days later, on July 10, which was the very next day that Congress was in session. Clearly these provisions need more consideration. For these reasons, I urge that we defeat H.R. 6063.

I reserve the balance of my time.

Rep. Lamar Smith

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Mr. Speaker, I have no further requests for time on this side and reserve the balance of my time.

Rep. Robert C. Scott

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Mr. Speaker, I yield such time as she may consume to the gentlelady from Florida (Ms. Wasserman Schultz), a cosponsor of the bill.

Rep. Debbie Wasserman Schultz

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Mr. Speaker, I rise today in support of the Child Protection Act of 2012, which I am honored to cosponsor with my good friend from Texas, Chairman Lamar Smith. Chairman Smith and I are proof-positive of what bipartisan working relationships can accomplish, especially because we both agree that protecting the safety and well-being of our Nation's children is our highest priority. That's why I am so pleased that this bill, which was reported favorably out of committee on voice vote, is before us today. This is an opportunity to make a real difference in the lives of children nationwide, thousands of whom are plagued by abuse, terror, and assaults that we cannot even imagine.

In 2008, I was honored to sponsor the PROTECT Our Children Act of 2008, which provides the safety net and resources the law enforcement agents who fight child sexual predators so desperately need. This commonsense bill builds on the progress that we started in PROTECT to ensure that law enforcement can combat one of the fastest-growing crimes in the United States, child pornography.

We must ensure that investigators have every available resource to track down predators and protect our children. This bill ensures that paperwork does not stand in the way of protecting our kids.

Mr. Speaker, I have learned far too much about the world of child pornography since I first took on this cause 4 years ago. There are many aspects of it that are disturbing beyond words to describe, like the fact that in a survey of convicted offenders, more than 83 percent of them had images of children younger than 12 years old, and almost 20 percent of them had images of babies and toddlers who were less than 3 years old. And let's remember that these aren't just images of naked children. These are crime scene photographs and videos taken of children being beaten, raped, and abused beyond our worst nightmares for the sexual pleasure of the person looking at the photo or video.

Let's also remember that these are children who are often being victimized by someone in their circle of trust, someone who was supposed to protect them, and someone who, instead, chose to do them harm. These children only have the law to protect them because their protectors failed them and caused them harm.

While it's not often that we have an opportunity to pass a bill here that quite literally means the difference between life or death, this is one of those times. That's why, as a Member of Congress, I know that I, as well as Chairman Smith and the Members of Congress here today fighting to protect the children of this country, will stand strong and continue to press forward on their behalf.

I am proud and honored to be the lead Democratic sponsor of this bill, and I am thankful to my friend Chairman Smith for his continued leadership and support on this crucial cause.

While the chairman listed some of the organizations that are supporting this bill, I will add some others. This bill is supported by the Rape, Abuse, and Incest National Network; the National Council of Jewish Women; Men Can Stop Rape; and the Florida Council Against Sexual Violence, among the other worthy and proud organizations that Chairman Smith listed.

We are grateful to all of these organizations for their endorsement of this bill and for their continued support for all victims of sexual assault and abuse. I urge all of my colleagues to join us in supporting this critical legislation.

Rep. Robert C. Scott

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Mr. Speaker, I yield back the balance of my time.

Rep. Lamar Smith

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Mr. Speaker, I yield back the balance of my time as well.

The question is on the motion offered by the gentleman from Texas (Mr. Smith) that the House suspend the rules and pass the bill, H.R. 6063.

The question was taken.

In the opinion of the Chair, two-thirds being in the affirmative, the ayes have it.

Rep. Lamar Smith

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Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

Pursuant to clause 8 of rule XX, further proceedings on this question will be postponed.

The point of no quorum is considered withdrawn.