The Protecting Children From Sexual Exploitation Act of 2005     7/10/2006
By Jan LaRue and Melanie Mitroff

Sens. Orrin Hatch (R-Utah) and Sam Brownback (R-Kansas) have introduced S. 2140, The Protecting Children from Sexual Exploitation Act of 2005. Sens. Allard, Burns, Coburn, Cornyn, DeMint, DeWine, Graham, Grassley, Isakson, Kyl, Landrieu, Lieberman and Sessions are co-sponsors. It will strengthen the federal law requiring producers of sexually explicit material to keep and permit inspection of records regarding the ages of those who perform in the material.

Current Law

Federal law (18 U.S.C. §2251) prohibits producing visual depictions of either actual or simulated sexually explicit conduct that includes minors. Federal law (18 U.S.C. §2257) supplements the child porn law by requiring producers of sexually explicit material to keep records regarding the age of performers, make those records available for inspection, and affix to their products a statement describing the location of those records. Enforcing the ban on child porn involves post-production prosecution; enforcing the record-keeping statute helps prevent production in the first place.

S. 2140 Corrects Defects in Current Law

1. S. 2140 requires age-related records regarding all sexually explicit material. The current statute applies only to depictions of actual sexually explicit conduct. S. 2140 applies the record-keeping and inspection requirements to producers of simulated sexually explicit conduct because producing such material is also illegal if it involves minors. This means that some producers will now have to keep age-related records for the first time.
2. S. 2140 more effectively defines what it means to produce sexually explicit material. Because the continued existence of child pornography perpetuates the exploitation, the law must hold accountable some who may not have actually held a camcorder or arranged a photo shoot. S. 2140 more effectively defines the term “produces” and minimizes unintended consequences by including three categories of activity and excluding five others.
3. S. 2140 makes the definition of actual sexually explicit conduct consistent with other statutes. S. 2140 ensures that the definition in the record-keeping statute conforms to the rest of the child-pornography statute.
4. S. 2140 makes refusal to make records available for inspection a crime. The current statute requires maintaining age-related records and making them available for inspection, but makes only failure to maintain records a crime.

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