PROTECTION OF CHILDREN FROM SEXUAL PREDATORS ACT   The Protection of Children from Sexual Predators Act of 1998 (P.L. 105-314), establishes new criminal offenses, amends existing statutes, and provides for enhanced penalties. The bill was signed and became effective on October 30, 1998.        A. New Offenses             Three new offenses or definitions of offenses were created: 1) Use of interstate facilities to transmit information about a minor, 18 U.S.C. € 2425, prohibits the use of the mail or facility  of interstate or foreign commerce to transmit information about a minor under the age of 16 for criminal sexual purposes.  The facility of interstate or foreign commerce may be a computer. This statute is in response to a case from Illinois where an individual posted a nine year old girlâs name and telephone number on the Internet indicating that she was available for sex. The individual initiating the transmission can be fined, imprisoned up to five years, or both. 2) Transfer of obscene materials to minors, 18 U.S.C. € 1470, prohibits the use of the mails or a facility of interstate or  foreign commerce to knowingly transmit, or attempt to transmit, obscene materials to minors under the age of 16. The individual transmitting the materials may be fined, imprisoned for 10 years, or both. 3) Definition of sexual activity, 18 U.S.C. € 2427, defines criminal sexual activity to include the production of child pornography for purposes of Chapter 117 offenses. Previously, several cases presented for federal prosecution could not be charged because the individual either transported a minor or traveled to meet a minor to produce child  pornography but not for sexual activity. Top of page   B. Amendments and clarifications 1) Attempt provisions. An attempt provision was added to 18 U.S.C. 2422(a), Coercion and Enticement and 18 U.S.C. 2421, Transportation generally. 2) The Act clarifies that in 18 U.S.C. 2422(b), Coercion and enticement of a minor, coercion can be through use of the mail, or any facility of interstate or foreign commerce, and increases the maximum sentence to 15 years. 3) The Act amends 18 U.S.C. €€ 2251(a) and (b), Production of Child Pornography by expanding the jurisdictional reach of the federal child pornography production statutes. The existing statute required the knowing transportation,  transmission or distribution of the child pornography. The amendment creates a jurisdictional element similar to the possession, receipt, and transmission statutes which are violated if the individual, e.g., possesses child pornography that was made with materials (e.g., the paper, the computer, the diskettes, the camera) that had been transported in interstate or foreign commerce. The amendment thus increases the possibility of federal prosecution for the direct abuse of the child in the production of child pornography. 4) Zero tolerance for possession of child pornography. The legislation amends the child pornography possession statutes to permit the prosecution of an individual for possessing one matter (18 U.S.C. € 2252(a)(4)) or image (18 U.S.C. €  2252A(a)(5)) of child pornography. The existing statutes provided for prosecution of individuals possessing three or  more matters or images. Both statutes are also amended to include an affirmative defense, for the possession of one matter or image, that the individual took reasonable steps to delete or destroy the matter or image or reported the existence of the visual depiction or child pornography to law enforcement authorities. 5) Redundancy eliminated. The redundancy of the phrase, "crossing a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years," appearing in 18 U.S.C. € 2241(c) and in the first phrase of 18 U.S.C. € 2243(a), has been eliminated by striking the phrase in the latter statute. 18 U.S.C. € 2423(b), Transportation of Minors, should be used for cases where an individual either travels for criminal sexual activity with a minor over the age of 12 years, or travels in foreign commerce for purposes of criminal sexual activity. 6) Pretrial Detention. Persons charged under chapter 117 may now be detained pretrial on grounds of dangerousness under 18 U.S.C. € 3156, for such offenses as crimes of violence. This brings chapter 117 into accord with chapter 110, under which a defendant could be detained for possession of child pornography. Top of page            C. Maximum Penalties and Sentencing Considerations 1) Increased Maximum Penalty. The Act increased the maximum statutory penalty for the following offenses: 18 U.S.C. € 2422(a) [from 5 to 10 years], 18 U.S.C. € 2422(b) [from 10 to 15 years)], 18 U.S.C. € 2423(a) [from 10 to 15 years], and 18 U.S.C. € 2423(b) [from 10 to 15 years]. In addition, an individual convicted of 18 U.S.C. € 2244 involving a victim under the age of 12 can receive double the maximum statutory penalty, under the new Section 2244(c). 2) Repeat Offenders and Increased Penalties. The Act contains several recidivist sentencing increases. First, an individual convicted of a crime under chapter 117 who has a previous federal conviction under chapters 109A, 110, or 117, or a comparable state conviction, can receive double the maximum statutory penalty under the new Chapter 117 repeat offender section, 18 U.S.C. € 2426. Second, an individual convicted under chapter 109A who has a previous conviction for a sex offense as defined in Section 2426 can receive double the maximum statutory penalty under the new Chapter 109A repeat offender section, 18 U.S.C. € 2247. Third, an individual convicted of possession of child pornography under 18 U.S.C. €€ 2252(a)(4) or 2252A(a)(5) is subject to an increased maximum statutory penalty if the individual had a prior conviction under chapters 109A, 110, and 117 or under a range of state offenses involving child pornography sexual assault. Previously, the increased maximum statutory penalty only applied to chapters 109A and 110, or a state conviction for possession of child pornography. 3) Death Penalty If a minor under the age 14 dies as a result of the commission of an offense under 18 U.S.C. €€ 2251, 2422, or 2423, the defendant may receive the death penalty under a new provision, 18 U.S.C. € 3559(d), Death or Imprisonment for Crimes Against Children This provision was added, in part, to increase penalties for "snuff" films involving minors. 4) Sentencing Commission Directives The legislation directs the United States Sentencing Commission to review the sentencing guidelines and provide for enhancements for cases involving sexual exploitation of minors. In addition to general consideration of sentencing enhancements for chapter 117, the Commission is directed to develop enhancements for crimes involving sexual exploitation of a minor where the individual used a computer, misrepresented his/her identity, or engaged in a pattern of abuse of minors. The Sentencing Commission is also directed to review the definition of "distribution" of child pornography for either monetary gain and nonpecuniary interests. The Sentencing  Commission has also been directed to review the Guidelines for consistency and to avoid duplication. The Child  Exploitation and Obscenity Section will be preparing materials for consideration by the Sentencing Commission and would like to receive case examples highlighting problems in sentencing, especially under 18 U.S.C. €€ 2422(b) and 2423. 5) Forfeiture and Civil Remedies. Criminal forfeiture, under Section 2253, and civil forfeiture, under Section 2254, are now available for offenses under 18 U.S.C. €€ 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, and 2423. Civil remedies, under Section 2255, are now available for offenses under the aforementioned statutes and Sections 2241(c), 2242, and 2243. See below under "Forfeiture Provisions." The forfeiture provisions should provide incentives for increased  investigative work by local, state, and federal law enforcement in all cases involving child pornography, luring and transportation of minors, and trafficking of women and minors for prostitution cases. The civil remedy provisions may be useful in providing relief for victims. Top of page          D. Miscellaneous 1) Administrative subpoenas. The use of administrative subpoenas is now available for child exploitation cases under a new statute, 18 U.S.C. € 3486. This provision will allow for faster and more efficient access to computer records and other documents when time is critical in cases involving exploitation of minors. 2) Reporting by Electronic Service Providers. The Protection of Children from Sexual Predators Act amends the Victims of Child Abuse Act of 1990 (42 U.S.C. 13001 et seq.) to require online service providers to report evidence of child pornography offenses. The measure also amends 18 U.S.C. € 2702(b) of the Electronic Communications Privacy Act of 1986 to create an exception to the general statutory bar against a public provider's voluntary disclosure of customer communications to third parties. Under the legislation, the Attorney General must, within 180 days of enactment, designate the agency or agencies to which such reports must be made. The reporting section, which is similar to 42 U.S.C.€ 13031 Child Abuse Reporting, requires anyone who is engaged in providing an electronic communication service to the public and obtains knowledge of a violation of the child pornography statutes to report such violation to a law enforcement agency or agencies, as designated by the Attorney General.  A failure to report is subject to a civil fine of up to $50,000 in the first instance and $100,000 for any subsequent failure. No service provider may be held civilly liable for any action taken in good faith to comply with the reporting requirement. In 1999, Congress passed an amendment that changed the reporting requirements by requiring providers to report such incidents to the "Cyber Tipline" at the National Center for Missing and Exploited Children (NCMEC). NCMEC shall forward that report to a law enforcement agency or agencies designated by the Attorney General. In order to facilitate effective reporting, the 1999 amendment requires the Attorney General to designate "a law enforcement agency or agencies" to receive and investigate such reports of child pornography that are forwarded by NCMEC.   Information obtained from Child Exploitation and Obscenity Section                                               Department of Justice, Criminal Division Top of page Return to Information,  Research and Statistics Reports List     Visit our primary partner in fighting online childpornography: