PROTECT Act of 2003

From Wikipedia, the free encyclopedia

The PROTECT Act of 2003 is a multipurpose United States law intended to prevent child abuse. "PROTECT" stands for Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today.

The law has the following effects:

Provides for mandatory life imprisonment of sex offenses against a minor if the offender has had a prior conviction of abuse against a minor, with some exceptions.
Establishes a program to obtain criminal history background checks for volunteer organizations.
Authorizes wiretapping and monitoring of other communications in all cases related to child abuse or kidnapping.
Eliminates statutes of limitations for child abduction or child abuse.
Bars pretrial release of persons charged with specified offenses against or involving children.
Assigns a national AMBER Alert Coordinator.
Implemented Suzanne's Law. Named after Suzanne Lyall, a missing college student of the University of New York in Albany, the law eliminates waiting periods before law enforcement agencies will investigate reports of missing persons ages 18-21. These reports are also filed with the NCIC.
Prohibits computer-generated child pornography.
Prohibits drawings, sculptures, and pictures of such drawings and sculptures depicting minors in (Miller test) obscene OR engaged in sex acts.
Minimum sentence of 5 years for possession, 10 years for distribution.
Authorizes fines and/or imprisonment for up to 30 years for U.S. citizens or residents who engage in illicit sexual conduct abroad.

For the purposes of this law, illicit sexual conduct includes commercial sex with anyone under 18, and all sex with anyone under 16. Previous US law was less strict, only punishing those having sex either in contravention of local laws OR in commerce (prostitution); but did not prohibit non-commercial sex with, for example, a 14 year-old if such sex was legal in the foreign territory.

The PROTECT Act mandated that the United States Attorney General promulgate new regulations to enforce the 2257 recordkeeping regulation, colloquially known as the '2257 Regulations'. The Free Speech Coalition has filed a lawsuit against the United States Department of Justice claiming the 2257 Regulations are unconstitutional.

The prohibitions against illustrations depicting child pornography, including computer-generated illustrations, were previously ruled unconstitutional by the U.S. Supreme Court when they were included in the Child Pornography Prevention Act of 1996. However, the provisions of the Protect Act are distinct, since they establish the requirement of showing obscenity as defined by the Miller Test, which was not an element of the 1996 law. Since it is well established that the First Amendment of the United States Constitution does not protect obscenity, this distinction would make the 2003 law prima facie constitutional as regards drawings, cartoons and sculptures, and require a finding that obscenity was constitutionally protected speech to overturn. This would represent a major (and, pragmatically, somewhat unlikely) change in the law.

The act was signed into law by President George W. Bush on April 30, 2003.

On April 6, 2006, in United States v. Williams, the Eleventh Circuit Court of Appeals ruled that one component of the PROTECT ACT, the "pandering provision" codified in 18 U.S.C. § 2252A(a)(3)(B) of the United States Code, violated the First Amendment. The "pandering provision" conferred criminal liability on anyone who knowingly

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.

The Williams court held that although the content described in subsections (i) and (ii) is not constitutionally protected, speech that advertises or promotes such content does have the protection of the First Amendment. Accordingly, § 2252A(a)(3)(B) was held to be unconstitutionally overbroad. The Eleventh Circuit further held that the law was unconstitutionally vague, in that it did not adequately and specifically describe what sort of speech was criminally actionable. The government did not appeal this ruling.