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An error in the Fifth Circuit instructions regarding "child pornography"?

Title 18 §§ 2252 and § 2252A are two statutes that criminalize child pornography. Section 2252, enacted in 1990, prohibits the visual depiction of an actual minor engaging in sexually explicit conduct. Section 2252A, enacted in 1996, prohibits child pornography, which is defined to include not just material that depicts actual minors, but also images that are made to appear to be minors.

The statute defining "child pornography" is 18 U.S.C. § 1956(8). That statute was modified effective April 30, 2003, after the Supreme Court found the previous definition to be constitutionally overbroad in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The 2003 changes were as follows:

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct;

Instruction 2.85C in the 2015 edition of the Fifth Circuit Pattern Jury Instructions for Criminal Cases defines "child pornography" as:

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct.

This omits paragraph (B), with the Note to the instruction indicating that the author(s) simply missed the 2003 legislation.

In Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002), the Supreme Court struck down two definitional terms of “child pornography” contained in 18 U.S.C. § 2256(8) as vague and overbroad. Accordingly, only the definitions listed in 18 U.S.C. §§ 2256(8)(A) and (C) should be utilized.

The Committee updates their instructions from time to time (there is an addendum dated March 28, 2017, but it does not address the child pornography statutes). I'll drop them a note, and see if I get a response.

(01/13/20) (permalink)

 
 
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