Sexual
abuse crimes are prosecuted under 18 U.S.C. §§ 2241 through 2248. The age of the victim and whether
force was used are two important facts that help determine
the appropriate statute and punishment. Section 2247
increases the maximum penalties for repeat offenders and
section 2248 mandates
restitution to the victims.
(a)
By force or threat. Whoever, in the special maritime and
territorial jurisdiction of the United States or in a
Federal prison, knowingly causes another person to engage
in a sexual act
(1)
by using force against that other person; or
(2) by threatening or placing that other person in fear
that any person will be subjected to death, serious bodily
injury, or kidnapping; or attempts to do so, shall be
fined under this title, imprisoned for any term of years
or life, or both.
(b)
By other means. Whoever, in the special maritime and territorial
jurisdiction of the United States or in a Federal prison,
knowingly
(1)
renders another person unconscious and thereby engages
in a sexual act with that other person; or
(2) administers to another person by force or threat of
force, or without the knowledge or permission of that
person, a drug, intoxicant, or other similar substance
and thereby
(A)
substantially impairs the ability of that other person
to appraise or control conduct; and
(B) engages in a sexual act with that other person; or
attempts to do so, shall be fined under this title, imprisoned
for any term of years or life, or both.
(c)
With children. Whoever crosses a State line with intent
to engage in a sexual act with a person who has not attained
the age of 12 years, or in the special maritime and territorial
jurisdiction of the United States or in a Federal prison,
knowingly engages in a sexual act with another person
who has not attained the age of 12 years, or knowingly
engages in a sexual act under the circumstances described
in subsections (a) and (b) with another person who has
attained the age of 12 years but has not attained the
age of 16 years (and is at least 4 years younger than
the person so engaging), or attempts to do so, shall be
fined under this title, imprisoned for any term of years
or life, or both. If the defendant has previously been
convicted of another Federal offense under this subsection,
or of a State offense that would have been an offense
under either such provision had the offense occurred in
a Federal prison, unless the death penalty is imposed,
the defendant shall be sentenced to life in prison.
(d) State of mind proof requirement. In a prosecution
under subsection (c) of this section, the Government need
not prove that the defendant knew that the other person
engaging in the sexual act had not attained the age of
12 years.
Whoever,
in the special maritime and territorial jurisdiction of
the United States or in a Federal prison, knowingly
(1) causes another person to engage in a sexual act by
threatening or placing that other person in fear (other
than by threatening or placing that other person in fear
that any person will be subjected to death, serious bodily
injury, or kidnapping); or
(2) engages in a sexual act with another person if that
other person is
(A)
incapable of appraising the nature of the conduct; or
(B) physically incapable of declining participation in,
or communicating unwillingness to engage in, that sexual
act; or attempts to do so, shall be fined under this title,
imprisoned not more than 20 years, or both.
(a)
Of a minor. Whoever, in the special maritime and territorial
jurisdiction of the United States or in a Federal prison,
knowingly engages in a sexual act with another person
who
(1)
has attained the age of 12 years but has not attained
the age of 16 years; and
(2) is at least four years younger than the person so
engaging; or attempts to do so, shall be fined under this
title, imprisoned not more than 15 years, or both.
(b)
Of a ward. Whoever, in the special maritime and territorial
jurisdiction of the United States or in a Federal prison,
knowingly engages in a sexual act with another person
who is
(1)
in official detention; and
(2) under the custodial, supervisory, or disciplinary
authority of the person so engaging; or attempts to do
so, shall be fined under this title, imprisoned not more
than one year, or both.
(
c) Defenses.—
(1)
In a prosecution under subsection (a) of this section,
it is a defense, which the defendant must establish by
a preponderance of the evidence, that the defendant reasonably
believed that the other person had attained the age of
16 years.
(2) In a prosecution under this section, it is a defense,
which the defendant must establish by a preponderance
of the evidence, that the persons engaging in the sexual
act were at that time married to each other.
(d)
State of mind proof requirement. In a prosecution under
subsection (a) of this section, the Government need not
prove that the defendant knew
(1)
the age of the other person engaging in the sexual act;
or
(2) that the requisite age difference existed between
the persons so engaging.
(a)
Sexual conduct in circumstances where sexual acts are
punished by this chapter. Whoever, in the special maritime
and territorial jurisdiction of the United States or in
a Federal prison, knowingly engages in or causes sexual
contact with or by another person, if so to do would violate
(1)
section 2241 of this title had the sexual contact been
a sexual act, shall be fined under this title, imprisoned
not more than ten years, or both;
(2) section 2242 of this title had the sexual contact
been a sexual act, shall be fined under this title, imprisoned
not more than three years, or both;
(3) subsection (a) of section 2243 of this title had the
sexual contact been a sexual act, shall be fined under
this title, imprisoned not more than two years, or both;
or
(4) subsection (b) of section 2243 of this title had the
sexual contact been a sexual act, shall be fined under
this title, imprisoned not more than six months, or both.
(b)
In other circumstances. Whoever, in the special maritime
and territorial jurisdiction of the United States or in
a Federal prison, knowingly engages in sexual contact
with another person without that other person's permission
shall be fined under this title, imprisoned not more than
six months, or both.
(c) Offenses involving young children. If the sexual contact
that violates this section is with an individual who has
not attained the age of 12 years, the maximum term of
imprisonment that may be imposed for the offense shall
be twice that otherwise provided in this section.
A
person who, in the course of an offense under this chapter,
engages in conduct that results in the death of a person,
shall be punished by death or imprisoned for any term
of years or for life.
As
used in this chapter
(1) the term "prison" means a correctional,
detention, or penal facility;
(2) the term "sexual act" means
(A)
contact between the penis and the vulva or the penis and
the anus, and for purposes of this subparagraph contact
involving the penis occurs upon penetration, however,
slight;
(B) contact between the mouth and the penis, the mouth
and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital
opening of another by a hand or finger or by any object,
with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing,
of the genitalia of another person who has not attained
the age of 16 years with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire
of any person;
(3)
the term "sexual contact" means the intentional
touching, either directly or through the clothing, of
the genitalia, anus, groin, breast, inner thigh, or buttocks
of any person with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person;
(4) the term "serious bodily injury" means bodily
injury that involves a substantial risk of death, unconsciousness,
extreme physical pain, protracted and obvious disfigurement,
or protracted loss or impairment of the function of a
bodily member, organ, or mental faculty;
(5) the term "official detention" means
(A)
detention by a Federal officer or employee, or under the
direction of a Federal officer or employee, following
arrest for an offense; following surrender in lieu of
arrest for an offense; following a charge or conviction
of an offense, or an allegation or finding of juvenile
delinquency; following commitment as a material witness;
following civil commitment in lieu of criminal proceedings
or pending resumption of criminal proceedings that are
being held in abeyance, or pending extradition, deportation,
or exclusion; or
(B) custody by a Federal officer or employee, or under
the direction of a Federal officer or employee, for purposes
incident to any detention described in subparagraph (A)
of this paragraph, including transportation, medical diagnosis
or treatment, court appearance, work, and recreation;
but does not include supervision or other control (other
than custody during specified hours or days) after release
on bail, probation, or parole, or after release following
a finding of juvenile delinquency; and
(6
)the term "State" means a State of the United
States, the District of Columbia, and any commonwealth,
possession, or territory of the United States.
(a)
Maximum Term of Imprisonment. - The maximum term of imprisonment
for a violation of this chapter after a prior sex offense
conviction shall be twice the term otherwise provided
by this chapter.
(b) Prior Sex Offense Conviction Defined. - In this section,
the term ''prior sex offense conviction'' has the meaning
given that term in section 2426(b).
(a)
In general. Notwithstanding section 3663 or 3663A, and
in addition to any other civil or criminal penalty authorized
by law, the court shall order restitution for any offense
under this chapter.
(b) Scope and nature of order.
(1)
Directions. The order of restitution under this section
shall direct the defendant to pay to the victim (through
the appropriate court mechanism) the full amount of the
victim's losses as determined by the court pursuant to
paragraph (2).
(2) Enforcement. An order of restitution under this section
shall be issued and enforced in accordance with section
3664 in the same manner as an order under section 3663A.
(3) Definition. For purposes of this subsection, the term
"full amount of the victim's losses" includes
any costs incurred by the victim for
(A)
medical services relating to physical, psychiatric, or
psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child
care expenses;
(D) lost income;
(E) attorneys' fees, plus any costs incurred in obtaining
a civil protection order; and
(F) any other losses suffered by the victim as a proximate
result of the offense.
(4)
Order mandatory.—
(A)
The issuance of a restitution order under this section
is mandatory.
(B) A court may not decline to issue an order under this
section because of
(
i) the economic circumstances of the defendant; or
(ii) the fact that a victim has, or is entitled to, receive
compensation for his or her injuries from the proceeds
of insurance or any other source.
(c)
Definition. For purposes of this section, the term "victim"
means the individual harmed as a result of a commission
of a crime under this chapter, including, in the case
of a victim who is under 18 years of age, incompetent,
incapacitated, or deceased, the legal guardian of the
victim or representative of the victim's estate, another
family member, or any other person appointed as suitable
by the court, but in no event shall the defendant be named
as such representative or guardian.
Prosecutions
involving child pornography and the sexual exploitation
of children are initiated under 18 U.S.C.
§§ 2251through 2260. The substantive statutes
are sections 2251,
2251A, 2252,
2252A and 2260
and the relevant definitions are set forth in section
2256. Section 2253 authorizes criminal forfeiture,
and section
2254 authorizes civil forfeiture,
of the items depicting child pornography, the profits
or proceeds obtained from the commission of the crimes,
and the property used to commit or promote the commission
of the crimes. Section
2255 provides a civil remedy
for victims and section 2259
provides mandatory restitution to victims.
Section 2257
creates record keeping requirements for items depicting
sexually explicit conduct and section 2258
creates a misdemeanor crime for failure to report child
abuse.
(a)
Any person who employs, uses, persuades, induces, entices,
or coerces any minor to engage in, or who has a minor
assist any other person to engage in, or who transports
any minor in interstate or foreign commerce, or in any
Territory or Possession of the United States, with the
intent that such minor engage in, any sexually explicit
conduct for the purpose of producing any visual depiction
of such conduct, shall be punished as provided under subsection
(e), if such person knows or has reason to know that such
visual depiction will be transported in interstate or
foreign commerce or mailed, if that visual depiction was
produced using materials that have been mailed, shipped,
or transported in interstate or foreign commerce by any
means, including by computer, or if such visual depiction
has actually been transported in interstate or foreign
commerce or mailed.
(b) Any parent, legal guardian, or person having custody
or control of a minor who knowingly permits such minor
to engage in, or to assist any other person to engage
in, sexually explicit conduct for the purpose of producing
any visual depiction of such conduct shall be punished
as provided under subsection (e) of this section, if such
parent, legal guardian, or person knows or has reason
to know that such visual depiction will be transported
in interstate or foreign commerce or mailed, if that visual
depiction was produced using materials that have been
mailed, shipped, or transported in interstate or foreign
commerce by any means, including by computer, or if such
visual depiction has actually been transported in interstate
or foreign commerce or mailed.
(c)
(1)
Any person who, in a circumstance described in paragraph
(2), employs, uses, persuades, induces, entices, or coerces
any minor to engage in, or who has a minor assist any
other person to engage in, any sexually explicit conduct
outside of the United States, its territories or possessions,
for the purpose of producing any visual depiction of such
conduct, shall be punished as provided under subsection
(e).
(2) The circumstance referred to in paragraph (1) is that
(A)
the person intends such visual depiction to be transported
to the United States, its territories or possessions,
by any means, including by computer or mail; or
(B) the person transports such visual depiction to the
United States, its territories or possessions, by any
means, including by computer or mail.
(d)
(1)
Any person who, in a circumstance described in paragraph
(2), knowingly makes, prints, or publishes, or causes
to be made, printed, or published, any notice or advertisement
seeking or offering
(A)
to receive, exchange, buy, produce, display, distribute,
or reproduce, any visual depiction, if the production
of such visual depiction involves the use of a minor engaging
in sexually explicit conduct and such visual depiction
is of such conduct; or
(B) participation in any act of sexually explicit conduct
by or with any minor for the purpose of producing a visual
depiction of such conduct:
shall be punished as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that
(A)
such person knows or has reason to know that such notice
or advertisement will be transported in interstate or
foreign commerce by any means including by computer or
mailed; or
(B) such notice or advertisement is transported in interstate
or foreign commerce by any means including by computer
or mailed.
(e)
Any individual who violates, or attempts or conspires
to violate, this section shall be fined under this title
and imprisoned not less than 15 years nor more than 30
years, but if such person has one prior conviction under
this chapter, chapter 71, chapter 109A, or chapter 117,
or under section 920 of title 10 (article 120 of the Uniform
Code of Military Justice), or under the laws of any State
relating to the sexual exploitation of children, such
person shall be fined under this title and imprisoned
for not less than 25 years nor more than 50 years, but
if such person has 2 or more prior convictions under this
chapter, chapter 71, chapter 109A, or chapter 117, or
under section 920 of title 10 (article 120 of the Uniform
Code of Military Justice), or under the laws of any State
relating to the sexual exploitation of children, such
person shall be fined under this title and imprisoned
not less than 35 years nor more than life. Any organization
that violates, or attempts or conspires to violate, this
section shall be fined under this title. Whoever, in the
course of an offense under this section, engages in conduct
that results in the death of a person, shall be punished
by death or imprisoned for any term of years or for life.
(a)
Any parent, legal guardian, or other person having custody
or control of a minor who sells or otherwise transfers
custody or control of such minor, or offers to sell or
otherwise transfer custody of such minor either
(1)
with knowledge that, as a consequence of the sale or transfer,
the minor will be portrayed in a visual depiction engaging
in, or assisting another person to engage in, sexually
explicit conduct; or
(2) with intent to promote either
(A)
the engaging in of sexually explicit conduct by such minor
for the purpose of producing any visual depiction of such
conduct; or
(B) the rendering of assistance by the minor to any other
person to engage in sexually explicit conduct for the
purpose of producing any visual depiction of such conduct;
shall be punished by imprisonment for not less than 30
years or for life and by a fine under this title, if any
of the circumstances described in subsection (c) of this
section exist.
(b) Whoever purchases or otherwise obtains custody or
control of a minor, or offers to purchase or otherwise
obtain custody or control of a minor either
(1)
with knowledge that, as a consequence of the purchase
or obtaining of custody, the minor will be portrayed in
a visual depiction engaging in, or assisting another person
to engage in, sexually explicit conduct; or
(2) with intent to promote either
(A)
the engaging in of sexually explicit conduct by such minor
for the purpose of producing any visual depiction of such
conduct; or
(B) the rendering of assistance by the minor to any other
person to engage in sexually explicit conduct for the
purpose of producing any visual depiction of such conduct;
shall be punished by imprisonment for not less than 30
years or for life and by a fine under this title, if any
of the circumstances described in subsection (c) of this
section exist.
(c) The circumstances referred to in subsections (a) and
(b) are that
(1)
in the course of the conduct described in such subsections
the minor or the actor traveled in or was transported
in interstate or foreign commerce;
(2) any offer described in such subsections was communicated
or transported in interstate or foreign commerce by any
means including by computer or mail; or
(3) the conduct described in such subsections took place
in any territory or possession of the United States.
§
2252. Certain activities relating to material involving
the sexual exploitation of minors
(a)
Any person who
(1)
knowingly transports or ships in interstate or foreign
commerce by any means including by computer or mails,
any visual depiction, if
(A)
the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(2)
knowingly receives, or distributes, any visual depiction
that has been mailed, or has been shipped or transported
in interstate or foreign commerce, or which contains materials
which have been mailed or so shipped or transported, by
any means including by computer, or knowingly reproduces
any visual depiction for distribution in interstate or
foreign commerce or through the mails, if
(A)
the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(3)
either
(A)
in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by,
leased to, or otherwise used by or under the control of
the Government of the United States, or in the Indian
country as defined in section 1151 of this title, knowingly
sells or possesses with intent to sell any visual depiction;
or
(B) knowingly sells or possesses with intent to sell any
visual depiction that has been mailed, or has been shipped
or transported in interstate or foreign commerce, or which
was produced using materials which have been mailed or
so shipped or transported, by any means, including by
computer, if
(
i) the producing of such visual depiction involves the
use of a minor engaging in sexually explicit conduct;
and
(ii) such visual depiction is of such conduct; or
(4)
either
(A)
in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by,
leased to, or otherwise used by or under the control of
the Government of the United States, or in the Indian
country as defined in section 1151 of this title, knowingly
possesses 1 or more books, magazines, periodicals, films,
video tapes, or other matter which contain any visual
depiction; or
(B) knowingly possesses 1 or more books, magazines, periodicals,
films, video tapes, or other matter which contain any
visual depiction that has been mailed, or has been shipped
or transported in interstate or foreign commerce, or which
was produced using materials which have been mailed or
so shipped or transported, by any means including by computer,
if
(
i) the producing of such visual depiction involves the
use of a minor engaging in sexually explicit conduct;
and
(ii) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this
section.
(b)
(1)
Whoever violates, or attempts or conspires to violate,
paragraphs [FN1] (1), (2), or (3) of subsection (a) shall
be fined under this title and imprisoned not less than
5 years and not more than 20 years, but if such person
has a prior conviction under this chapter, chapter 71,
chapter 109A, chapter 117, or under section 920 of title
10 (article 120 of the Uniform Code of Military Justice),
or under the laws of any State relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward, or the production, possession,
receipt, mailing, sale, distribution, shipment, or transportation
of child pornography, such person shall be fined under
this title and imprisoned for not less than 15 years nor
more than 40 years.
(2) Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this
title or imprisoned not more than 10 years, or both, but
if such person has a prior conviction under this chapter,
chapter 71, chapter 109A, or chapter 117, or under section
920 of Title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward, or the production, possession,
receipt, mailing, sale, distribution, shipment, or transportation
of child pornography, such person shall be fined under
this title and imprisoned for not less than 10 years nor
more than 20 years.
(c)
Affirmative defense. It shall be an affirmative defense
to a charge of violating paragraph (4) of subsection (a)
that the defendant
(1)
possessed less than three matters containing any visual
depiction proscribed by that paragraph; and
(2) promptly and in good faith, and without retaining
or allowing any person, other than a law enforcement agency,
to access any visual depiction or copy thereof
(A)
took reasonable steps to destroy each such visual depiction;
or
(B) reported the matter to a law enforcement agency and
afforded that agency access to each such visual depiction.
§
2252A. Certain activities relating to material constituting
or containing child pornography
(a)
Any person who
(1)
knowingly mails, or transports or ships in interstate
or foreign commerce by any means, including by computer,
any child pornography;
(2) knowingly receives or distributes
(A)
any child pornography that has been mailed, or shipped
or transported in interstate or foreign commerce by any
means, including by computer; or
(B) any material that contains child pornography that
has been mailed, or shipped or transported in interstate
or foreign commerce by any means, including by computer;
(3)
knowingly
(A)
reproduces any child pornography for distribution through
the mails, or in interstate or foreign commerce by any
means, including by computer; or
(B) advertises, promotes, presents, distributes, or solicits
through the mails, or in interstate or foreign commerce
by any means, including by computer, any material or purported
material in a manner that reflects the belief, or that
is intended to cause another to believe, that the material
or purported material is, or contains
(
i) an obscene visual depiction of a minor engaging in
sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in
sexually explicit conduct;
(4)
either
(A)
in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by,
leased to, or otherwise used by or under the control of
the United States Government, or in the Indian country
(as defined in section 1151), knowingly sells or possesses
with the intent to sell any child pornography; or
(B) knowingly sells or possesses with the intent to sell
any child pornography that has been mailed, or shipped
or transported in interstate or foreign commerce by any
means, including by computer, or that was produced using
materials that have been mailed, or shipped or transported
in interstate or foreign commerce by any means, including
by computer;
(5)
either
(A)
in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by,
leased to, or otherwise used by or under the control of
the United States Government, or in the Indian country
(as defined in section 1151), knowingly possesses any
book, magazine, periodical, film, videotape, computer
disk, or any other material that contains an image of
child pornography; or
(B) knowingly possesses any book, magazine, periodical,
film, videotape, computer disk, or any other material
that contains an image of child pornography that has been
mailed, or shipped or transported in interstate or foreign
commerce by any means, including by computer, or that
was produced using materials that have been mailed, or
shipped or transported in interstate or foreign commerce
by any means, including by computer; or
(6)
knowingly distributes, offers, sends, or provides to a
minor any visual depiction, including any photograph,
film, video, picture, or computer generated image or picture,
whether made or produced by electronic, mechanical, or
other means, where such visual depiction is, or appears
to be, of a minor engaging in sexually explicit conduct
(A)
that has been mailed, shipped, or transported in interstate
or foreign commerce by any means, including by computer;
(B) that was produced using materials that have been mailed,
shipped, or transported in interstate or foreign commerce
by any means, including by computer; or
(C) which distribution, offer, sending, or provision is
accomplished using the mails or by transmitting or causing
to be transmitted any wire communication in interstate
or foreign commerce, including by computer, for purposes
of inducing or persuading a minor to participate in any
activity that is illegal.
shall be punished as provided in subsection (b).
(b)
(1)
Whoever violates, or attempts or conspires to violate,
paragraph (1), (2), (3), (4), or (6) of subsection (a)
shall be fined under this title and imprisoned not less
than 5 years and not more than 20 years, but, if such
person has a prior conviction under this chapter, chapter
71, chapter 109A, chapter 117, or under section 920 of
title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward, or the production, possession,
receipt, mailing, sale, distribution, shipment, or transportation
of child pornography, such person shall be fined under
this title and imprisoned for not less than 15 years nor
more than 40 years.
(2) Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or imprisoned
not more than 10 years, or both, but, if such person has
a prior conviction under this chapter, chapter 71, chapter
109A, or chapter 117, or under section 920 of title 10
(article 120 of the Uniform Code of Military Justice),
or under the laws of any State relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward, or the production, possession,
receipt, mailing, sale, distribution, shipment, or transportation
of child pornography, such person shall be fined under
this title and imprisoned for not less than 10 years nor
more than 20 years.
(c)
It shall be an affirmative defense to a charge of violating
paragraph (1), (2), (3 )(A), (4), or (5) of subsection
(a) that
(1)
(A)
the alleged child pornography was produced using an actual
person or persons engaging in sexually explicit conduct;
and
(B) each such person was an adult at the time the material
was produced; or
(2)
the alleged child pornography was not produced using any
actual minor or minors.
No
affirmative defense under subsection (c )(2) shall be
available in any prosecution that involves child pornography
as described in section 2256(8)(C). A defendant may not
assert an affirmative defense to a charge of violating
paragraph (1), (2), (3)(A), (4), or (5) of subsection
(a) unless, within the time provided for filing pretrial
motions or at such time prior to trial as the judge may
direct, but in no event later than 10 days before the
commencement of the trial, the defendant provides the
court and the United States with notice of the intent
to assert such defense and the substance of any expert
or other specialized testimony or evidence upon which
the defendant intends to rely. If the defendant fails
to comply with this subsection, the court shall, absent
a finding of extraordinary circumstances that prevented
timely compliance, prohibit the defendant from asserting
such defense to a charge of violating paragraph (1), (2),
(3 )(>A), (4), or (5) of subsection (a) or presenting
any evidence for which the defendant has failed to provide
proper and timely notice.
(d) Affirmative defense. It shall be an affirmative defense
to a charge of violating subsection (a )(5) that the defendant
(1)
possessed less than three images of child pornography;
and
(2) promptly and in good faith, and without retaining
or allowing any person, other than a law enforcement agency,
to access any image or copy thereof
(A)
took reasonable steps to destroy each such image; or
(B) reported the matter to a law enforcement agency and
afforded that agency access to each such image.
(e)
Admissibility of evidence. On motion of the government,
in any prosecution under this chapter or section 1466A,
except for good cause shown, the name, address, social
security number, or other nonphysical identifying information,
other than the age or approximate age, of any minor who
is depicted in any child pornography shall not be admissible
and may be redacted from any otherwise admissible evidence,
and the jury shall be instructed, upon request of the
United States, that it can draw no inference from the
absence of such evidence in deciding whether the child
pornography depicts an actual minor.
(f) Civil remedies.
(1)
In general. Any person aggrieved by reason of the conduct
prohibited under subsection (a) or (b) or section 1466A
may commence a civil action for the relief set forth in
paragraph
(2) Relief. In any action commenced in accordance with
paragraph (1), the court may award appropriate relief,
including
(A)
temporary, preliminary, or permanent injunctive relief;
(B) compensatory and punitive damages; and
(C) the costs of the civil action and reasonable fees
for attorneys and expert witnesses.
(a)
Whoever, in a circumstance described in subsection (d),
offers, agrees, attempts, or conspires to provide or
sell a visual depiction to another, and who in connection
therewith knowingly advertises, promotes, presents,
or describes the visual depiction with the intent to
cause any person to believe that the material is, or
contains, a visual depiction of a minor engaging in
sexually explicit conduct shall be subject to the penalties
set forth in section 2252A(b)(1), including the penalties
provided for cases involving a prior conviction.
(b) Whoever, in a circumstance described in subsection
(d), offers, agrees, attempts, or conspires to receive
or purchase from another a visual depiction that he
believes to be, or to contain, a visual depiction of
a minor engaging in sexually explicit conduct shall
be subject to the penalties set forth in section 2252A(b)(1),
including the penalties provided for cases involving
a prior conviction.
(c) It is not a required element of any offense under
this section that any person actually provide, sell,
receive, purchase, possess, or produce any visual depiction.
(d) The circumstance referred to in subsection (a) and
(b) is that--
(1)
any communication involved in or made in furtherance
of the offense is communicated or transported by the
mail, or in interstate or foreign commerce by any
means, including by computer, or any means or instrumentality
of interstate or foreign commerce is otherwise used
in committing or in furtherance of the commission
of the offense;
(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction by the mail, or in interstate
or foreign commerce by any means, including by computer;
(3) any person travels or is transported in interstate
or foreign commerce in the course of the commission
or in furtherance of the commission of the offense;
(4) any visual depiction involved in the offense has
been mailed, or has been shipped or transported in
interstate or foreign commerce by any means, including
by computer, or was produced using materials that
have been mailed, or that have been shipped or transported
in interstate or foreign commerce by any means, including
by computer; or
(5) the offense is committed in the special maritime
and territorial jurisdiction of the United States
or in any territory or possession of the United States.
(a)
Property subject to criminal forfeiture. A person who
is convicted of an offense under this chapter involving
a visual depiction described in section 2251, 2251A, 2252,
2252A, or 2260 of this chapter, or who is convicted of
an offense under section 2421, 2422, or 2423 of chapter
117, shall forfeit to the United States such person's
interest in
(1)
any visual depiction described in section 2251, 2251A,
or 2252 of this chapter, or any book, magazine, periodical,
film, videotape, or other matter which contains any such
visual depiction, which was produced, transported, mailed,
shipped or received in violation of this chapter;
(2) any property, real or personal, constituting or traceable
to gross profits or other proceeds obtained from such
offense; and
(3) any property, real or personal, used or intended to
be used to commit or to promote the commission of such
offense.
(b)
Third party transfers. All right, title, and interest
in property described in subsection (a) of this section
vests in the United States upon the commission of the
act giving rise to forfeiture under this section. Any
such property that is subsequently transferred to a person
other than the defendant may be the subject of a special
verdict of forfeiture and thereafter shall be ordered
forfeited to the United States, unless the transferee
establishes in a hearing pursuant to subsection (m) of
this section that he is a bona fide purchaser for value
of such property who at the time of purchase was reasonably
without cause to believe that the property was subject
to forfeiture under this section.
(c) Protective orders.—
(1)
Upon application of the United States, the court may enter
a restraining order or injunction, require the execution
of a satisfactory performance bond, or take any other
action to preserve the availability of property described
in subsection (a) of this section for forfeiture under
this section
(A)
upon the filing of an indictment or information charging
a violation of this chapter for which criminal forfeiture
may be ordered under this section and alleging that the
property with respect to which the order is sought would,
in the event of conviction, be subject to forfeiture under
this section; or
(B) prior to the filing of such an indictment or information,
if, after notice to persons appearing to have an interest
in the property and opportunity for a hearing, the court
determines that
(
i) there is a substantial probability that the United
States will prevail on the issue of forfeiture and that
failure to enter the order will result in the property
being destroyed, removed from the jurisdiction of the
court, or otherwise made unavailable for forfeiture; and
(ii) the need to preserve the availability of the property
through the entry of the requested order outweighs the
hardship on any party against whom the order is to be
entered; except that an order entered pursuant to subparagraph
(B) shall be effective for not more than 90 days, unless
extended by the court for good cause shown or unless an
indictment or information described in subparagraph (A)
has been filed.
(2)
A temporary restraining order under this subsection may
be entered upon application of the United States without
notice or opportunity for a hearing when an information
or indictment has not yet been filed with respect to the
property, if the United States demonstrates that there
is probable cause to believe that the property with respect
to which the order is sought would, in the event of conviction,
be subject to forfeiture under this section and that provision
of notice will jeopardize the availability of the property
for forfeiture. Such a temporary order shall expire not
more than 10 days after the date on which it is entered,
unless extended for good cause shown or unless the party
against whom it is entered consents to an extension for
a longer period. A hearing requested concerning an order
entered under this paragraph shall be held at the earliest
possible time and prior to the expiration of the temporary
order.
(3) The court may receive and consider, at a hearing held
pursuant to this subsection, evidence and information
that would be inadmissible under the Federal Rules of
Evidence.
(d)
Warrant of seizure. The Government may request the issuance
of a warrant authorizing the seizure of property subject
to forfeiture under this section in the same manner as
provided for a search warrant. If the court determines
that there is probable cause to believe that the property
to be seized would, in the event of conviction, be subject
to forfeiture and that an order under subsection (c) of
this section may not be sufficient to assure the availability
of the property for forfeiture, the court shall issue
a warrant authorizing the seizure of such property.
(e) Order of forfeiture. The court shall order forfeiture
of property referred to in subsection (a) if the trier
of fact determines, beyond a reasonable doubt, that such
property is subject to forfeiture.
(f) Execution. Upon entry of an order of forfeiture under
this section, the court shall authorize the Attorney General
to seize all property ordered forfeited upon such terms
and conditions as the court shall deem proper.
Following entry of an order declaring the property forfeited,
the court may, upon application of the United States,
enter such appropriate restraining orders or injunctions,
require the execution of satisfactory performance bonds,
appoint receivers, conservators, appraisers, accountants,
or trustees, or take any other action to protect the interest
of the United States in the property ordered forfeited.
Any income accruing to or derived from property ordered
forfeited under this section may be used to offset ordinary
and necessary expenses to the property which are required
by law, or which are necessary to protect the interests
of the United States or third parties.
(g) Disposition of property. Following the seizure of
property ordered forfeited under this section, the Attorney
General shall destroy or retain for official use any article
described in paragraph (1) of subsection (a), and shall
retain for official use or direct the disposition of any
property described in paragraph (2) or (3) of subsection
(a) by sale or any other commercially feasible means,
making due provision for the rights of any innocent persons.
Any property right or interest not exercisable by, or
transferable for value to, the United States shall expire
and shall not revert to the defendant, nor shall the defendant
or any person acting in concert with him or on his behalf
be eligible to purchase forfeited property at any sale
held by the United States. Upon application of a person,
other than the defendant or person acting in concert with
him or on his behalf, the court may restrain or stay the
sale or disposition of the property pending the conclusion
of any appeal of the criminal case giving rise to the
forfeiture, if the applicant demonstrates that proceeding
with the sale or disposition of the property will result
in irreparable injury, harm, or loss to him.
(h) Authority of attorney general. With respect to property
ordered forfeited under this section, the Attorney General
is authorized to
(1)
grant petitions for mitigation or remission of forfeiture,
restore forfeited property to victims of a violation of
this chapter, or take any other action to protect the
rights of innocent persons which is in the interest of
justice and which is not inconsistent with the provisions
of this section;
(2) compromise claims arising under this section;
(3) award compensation to persons providing information
resulting in a forfeiture under this section;
(4) direct the disposition by the United States, under
section 616 of the Tariff Act of 1930, of all property
ordered forfeited under this section by public sale or
any other commercially feasible means, making due provision
for the rights of innocent persons; and
(5) take appropriate measures necessary to safeguard and
maintain property ordered forfeited under this section
pending its disposition.
(
i) Applicability of civil forfeiture provisions. Except
to the extent that they are inconsistent with the provisions
of this section, the provisions of section 2254(d) of
this title (18 U.S.C. 2254(d)) shall apply to a criminal
forfeiture under this section.
(j) Bar on intervention. Except as provided in subsection
(m) of this section, no party claiming an interest in
property subject to forfeiture under this section may
(1)
intervene in a trial or appeal of a criminal case involving
the forfeiture of such property under this section; or
(2) commence an action at law or equity against the United
States concerning the validity of his alleged interest
in the property subsequent to the filing of an indictment
or information alleging that the property is subject to
forfeiture under this section.
(k)
Jurisdiction to enter orders. The district courts of the
United States shall have jurisdiction to enter orders
as provided in this section without regard to the location
of any property which may be subject to forfeiture under
this section or which has been ordered forfeited under
this section.
(l) Depositions. In order to facilitate the identification
and location of property declared forfeited and to facilitate
the disposition of petitions for remission or mitigation
of forfeiture, after the entry of an order declaring property
forfeited to the United States, the court may, upon application
of the United States, order that the testimony of any
witness relating to the property forfeited be taken by
deposition and that any designated book, paper, document,
record, recording, or other material not privileged be
produced at the same time and place, in the same manner
as provided for the taking of depositions under rule 15
of the Federal Rules of Criminal Procedure.
(m) Third party interests.—
(1)
Following the entry of an order of forfeiture under this
section, the United States shall publish notice of the
order and of its intent to dispose of the property in
such manner as the Attorney General may direct. The Government
may also, to the extent practicable, provide direct written
notice to any person known to have alleged an interest
in the property that is the subject of the order of forfeiture
as a substitute for published notice as to those persons
so notified.
(2) Any person, other than the defendant, asserting a
legal interest in property which has been ordered forfeited
to the United States pursuant to this section may, within
30 days of the final publication of notice or his receipt
of notice under paragraph (1), whichever is earlier, petition
the court for a hearing to adjudicate the validity of
his alleged interest in the property. The hearing shall
be held before the court alone, without a jury.
(3) The petition shall be signed by the petitioner under
penalty of perjury and shall set forth the nature and
extent of the petitioner's right, title, or interest in
the property, the time and circumstances of the petitioner's
acquisition of the right, title, or interest in the property,
any additional facts supporting the petitioner's claim,
and the relief sought.
(4) The hearing on the petition shall, to the extent practicable
and consistent with the interests of justice, be held
within 30 days of the filing of the petition. The court
may consolidate the hearing on the petition with a hearing
on any other petition filed by a person other than the
defendant under this subsection.
(5) At the hearing, the petitioner may testify and present
evidence and witnesses on his own behalf, and cross -
examine witnesses who appear at the hearing. The United
States may present evidence and witnesses in rebuttal
and in defense of its claim to the property and cross
- examine witnesses who appear at the hearing. In addition
to testimony and evidence presented at the hearing, the
court shall consider the relevant portions of the record
of the criminal case which resulted in the order of forfeiture.
(6) If, after the hearing, the court determines that the
petitioner has established by a preponderance of the evidence
that
(A)
the petitioner has a legal right, title, or interest in
the property, and such right, title, or interest renders
the order of forfeiture invalid in whole or in part because
the right, title, or interest was vested in the petitioner
rather than the defendant or was superior to any right,
title, or interest of the defendant at the time of the
commission of the acts which gave rise to the forfeiture
of the property under this section; or
(B) the petitioner is a bona fide purchaser for value
of the right, title, or interest in the property and was
at the time of purchase reasonably without cause to believe
that the property was subject to forfeiture under this
section;
the court shall amend the order of forfeiture in accordance
with its determination.
(7) Following the court's disposition of all petitions
filed under this subsection, or if no such petitions are
filed following the expiration of the period provided
in paragraph (2) for the filing of such petitions, the
United States shall have clear title to property that
is the subject of the order of forfeiture and may warrant
good title to any subsequent purchaser or transferee.
(n)
Construction. This section shall be liberally construed
to effectuate its remedial purposes.
(o) Substitute assets. If any of the property described
in subsection (a), as a result of any act or omission
of the defendant
(1)
cannot be located upon the exercise of due diligence;
(2) has been transferred or sold to, or deposited with,
a third party;
(3) has been placed beyond the jurisdiction of the court;
(4) has been substantially diminished in value; or
(5) has been commingled with other property which cannot
be divided without difficulty;
the court shall order the forfeiture of any other property
of the defendant up to the value of any property described
in paragraphs (1) through (5).
(a)
Property subject to civil forfeiture. The following property
shall be subject to forfeiture by the United States:
(1)
Any visual depiction described in section 2251, 2251A,
or 2252 of this chapter, or any book, magazine, periodical,
film, videotape or other matter which contains any such
visual depiction, which was produced, transported, mailed,
shipped, or received in violation of this chapter.
(2) Any property, real or personal, used or intended to
be used to commit or to promote the commission of an offense
under this chapter involving a visual depiction described
in section 2251, 2251A, 2252, 2252A, or 2260 of this chapter,
or used or intended to be used to commit or to promote
the commission of an offense under section 2421, 2422,
or 2423 or chapter 117.
(3) Any property, real or personal, constituting or traceable
to gross profits or other proceeds obtained from a violation
of this chapter involving a visual depiction described
in section 2251, 2251A, 2252, 2252A, or 2260 of this chapter,
or obtained from a violation of section 2421, 2422, or
2423 of chapter 117.
(b)
Seizure pursuant to Supplemental Rules for Certain Admiralty
and Maritime Claims. Any property subject to forfeiture
to the United States under this section may be seized
by the Attorney General, the Secretary of the Treasury,
or the United States Postal Service upon process issued
pursuant to the Supplemental Rules for Certain Admiralty
and Maritime Claims by any district court of the United
States having jurisdiction over the property, except that
seizure without such process may be made when the seizure
is pursuant to a search under a search warrant or incident
to an arrest. The Government may request the issuance
of a warrant authorizing the seizure of property subject
to forfeiture under this section in the same manner as
provided for a search warrant under the Federal Rules
of Criminal Procedure.
(c) Custody of federal official. Property taken or detained
under this section shall not be repleviable, but shall
be deemed to be in the custody of the Attorney General,
Secretary of the Treasury, or the United States Postal
Service subject only to the orders and decrees of the
court or the official having jurisdiction thereof. Whenever
property is seized under any of the provisions of this
subchapter, the Attorney General, Secretary of the Treasury,
or the United States Postal Service may
(1)
place the property under seal;
(2) remove the property to a place designated by the official
or agency; or
(3) require that the General Services Administration take
custody of the property and remove it, if practicable,
to an appropriate location for disposition in accordance
with law.
(d)
Other Laws and Proceedings Applicable. All provisions
of the customs laws relating to the seizure, summary and
judicial forfeiture, and condemnation of property for
violation of the customs laws, the disposition of such
property or the proceeds from the sale thereof, the remission
or mitigation of such forfeitures, and the compromise
of claims, shall apply to seizures and forfeitures incurred,
or alleged to have been incurred, under this section,
insofar as applicable and not inconsistent with the provisions
of this section, except that such duties as are imposed
upon the customs officer or any other person with respect
to the seizure and forfeiture of property under the customs
laws shall be performed with respect to seizures and forfeitures
of property under this section by such officers, agents,
or other persons as may be authorized or designated for
that purpose by the Attorney General, the Secretary of
the Treasury, or the Postal Service, except to the extent
that such duties arise from seizures and forfeitures affected
by any customs officer.
