Should the Intent Requirement for Child Pornography Crimes be Eliminated? (H.R. 1761)

What is H.R. 1761?

(Updated November 14, 2020)

This bill would broaden the coverage of current laws related to the sexual exploitation of minors related to the production of child pornography, effectively allowing the government pursue cases that otherwise wouldn’t have been prosecutable. It closes a loophole created by a federal appeals court decision in U.S. v. Palomino-Coronado that allowed a defendant to escape conviction for sexually abusing a child and taking pictures of the act because he didn’t engage in sexual activity with the victim in order to take the pictures, so there was no intent to produce the child pornography.

Argument in favor

Congress needs to close a loophole created by a federal court decision that let a predator sexually abuse a child, take pictures, and admit it but avoid conviction for child pornography because they didn’t engage in the act in order to create the images.

Argument opposed

This bill means well, but by allowing more individuals (potentially “sexting” teenagers) to be prosecuted for producing child pornography more convicts would be subjected to mandatory minimums, which are wrong under all circumstances.

Impact

Those accused of producing child pornography and their victims; law enforcement; and the court system.

Cost of H.R. 1761

The CBO estimates that enacting this bill would have an insignificant impact on the federal budget because of the small number of offenders who’d be affected.

Additional Info

In-Depth: Sponsoring Rep. Mike Johnson (R-LA) introduced this bill to close the loophole in existing law that was created by a federal appeals court ruling in U.S. v. Palomino-Coronado that reversed the conviction of a child sexual assault because the court couldn’t find intent to produce child pornography:

“When I arrived to Congress, I was surprised to learn of a court-created loophole in our federal law that allows a predator to ADMIT to sexually assaulting a child in many circumstances and still evade punishment. Today, I filed legislation to fix that. The Protection Against Child Exploitation Act will ensure any future perpetrators receive the justice they so rightly deserve.”

Several Democrats on the House Judiciary Committee expressed their opposition to this bill on the grounds that it would subject more convicts to mandatory minimum sentences of 15 years, including potentially “sexting” teenagers:

“Although well-intentioned, the bill’s resulting expansion of section 2251 would subject more individuals, including young people prosecuted for “sexting,” to substantial mandatory minimum prison sentences. We have long-opposed the imposition of mandatory minimum sentences because they are unjust, cause prison overcrowding, waste taxpayer money, and defy common sense.”

This legislation passed the House Judiciary Committee on a voice vote and has the support of six cosponsors, all of whom are Republicans.

Media:

• Sponsoring Rep. Mike Johnson (R-LA) Press Release
  
• CBO Cost Estimate
  
• CNN (Op-Ed In Favor)