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Commission holds to opposition on bill about depictions of minors after constitutional concerns raised
Summary
The Sensing Guideline Commission discussed changes to a bill that would criminalize dealing in depictions of minors but concluded the amendments did not resolve First Amendment and identifiability concerns; staff will continue to report a 'con' position.
Staff described changes to a bill concerning depictions of minors and related offenses, including language that removes a requirement that an alleged minor be identifiable and adds offenses and limitations on defenses.
Commissioner Brandes raised constitutional concerns tied to U.S. Supreme Court precedent, saying the bill’s language that removes the need to establish the victim’s identity risks creating laws that would criminalize purely fabricated images. Brandes told the commission: “Under Ashcroft, the U.S. Supreme Court ruling, that's constitutionally protected free speech. There's no harm to any child in the making of that [material].”
Judge Swan and other members raised concerns that the statutory scheme could create strict liability by eliminating defenses based on defendant knowledge of a subject’s age. The staff said it would continue to present the SGC’s position as 'con' and would adjust the stated reasoning to reflect changes in the bill (for example, removing an argument about the common-law definition of obscenity because the bill now defines 'obscene'). No motion to change the position was made.
