Child Pornography: - Center for Problem-Oriented Policing

For instance Section 2251 may apply when an offender transports a minor across state
lines with the intent the child engage in any sexually explicit conduct for the purpose of
producing child pornography. 228 The statute would apply if the person knew or had reason to
know the visual depiction or materials used to produce it would be transported in interstate or
foreign commerce or mailed; the visual depiction was produced using materials that were
mailed, shipped, or transported in interstate or foreign commerce including by computer; or
such visual depiction has actually been transported in interstate or foreign commerce or mailed.
Section 2251 also prohibits knowingly advertising visual depictions that were produced
by using a minor engaging in sexually explicit conduct through interstate or foreign commerce
including by computer or mail. Violation of Section 2251 carries a penalty of between
10 and 20 years in prison, a fine, or both. Subsequent offenses increase the applicable
penalties. 229 Organizations that violate 2251 are also subject to a fine. 230
Sections 2252, addressing certain activities relating to material involving the sexual
exploitation of minors, and 2252A, addressing certain activities relating to material constituting
or containing child pornography, prohibit transporting or shipping child pornography in
interstate or foreign commerce by any means—including mail and computer—or receiving or
distributing child pornography. The prohibitions include selling or possessing with intent to
sell any child pornography and visual depictions produced through the sexual exploitation of
a minor.
Section 2252(a)(4) also prohibits knowing possession of one or more books, magazines,
periodicals, films, videotapes, or other matter that contain any visual depiction of a minor
engaging in sexually explicit conduct. Section 2252A(a)(5) contains a similar provision prohibiting
knowing possession of "any book, magazine, periodical, film, videotape, computer
disk, or any other material that contains an image of child pornography."
Prior to the "zero-tolerance" amendment changing the number of items under the possession
provisions from three to one, Section 2252(a)(4)(B) was challenged in United States v.
Dauray. 231 Dauray argued that the 13 individual, unbound pictures of which he was found in
possession were themselves visual depictions and therefore not "matter which contain any
visual depiction." The Second Circuit Court of Appeals found ambiguity in the meanings of
"contain" and "matter," holding that the rule of lenity must be applied to resolve the ambiguity
in Dauray's favor. 232 The court found the language to be ambiguous because "contain" could
mean both "comprise" and "hold," and "matter" could apply to both the container in which
the images are kept and the images themselves. The dissent, however, argued that any
ambiguity that might exist did not rise to a "grievous ambiguity or uncertainty" requiring
application of the rule of lenity. 233
Both Section 2252 and 2252A provide an affirmative defense to possession charges if the
defendant possessed fewer than three images of child pornography and promptly, without
allowing anyone else access to the images, took steps to destroy each image and reported the
incident to law enforcement. 234 Section 2252A includes an additional affirmative defense that
the visual depiction was produced using actual people who were adults at the time of production
and the defendant did not advertise or promote the materials as child pornography. 235
Section 2260 addresses the production of sexually explicit depictions of a minor for
importation into the United States. 236 The section applies to individuals outside the United
States who knowingly use or transport a minor with the intent the minor engage in sexually
explicit conduct for the production of child pornography with the intent that the pornography
20 - CHILD PORNOGRAPHY: THE CRIMINAL-JUSTICE-SYSTEM RESPONSE