United States v. United States District Court for the Central District of California

Defendants are charged with violating 18 U.S.C. § 2251 (a) (Supp. IV 1986), which prohibits the production of materials depicting a minor engaged in sexually explicit conduct. We consider whether they may present evidence that they reasonably believed the minor in question was an adult.

*536 Facts

The basic facts are uncontested. In 1984, defendant James Marvin Souter, Jr., a so-called talent agent, hired 16-year-old Traci Lords to appear in a film to be produced by defendants Ronald Renee Kantor and Rupert Sebastian McNee. The film, Those Young Girls, was produced on August 2, 1984, and showed Lords engaging in sexually explicit conduct. While the depicted conduct, as described in the briefs, falls far outside the bounds of good taste, the government does not claim that the film is obscene under the standard of Miller v. California, 413 U.S. 15 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 (1973). Rather, the theory of the prosecution, founded on solid Supreme Court authority, is that defendants may be punished for producing nonob-scene films that depict minors engaging in sexually explicit conduct. See New York v. Ferber, 458 U.S. 747 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982).

Defendants…

dissenting:

The question we consider is whether Congress constitutionally may subject a person to criminal penalties for employing a minor to engage in sexually explicit conduct in a film intended for distribution in commerce, see 18 U.S.C. § 2251 (a), regardless of whether that person made a “reasonable mistake” about the minor’s age. The touchstone for our inquiry is New York v. Ferber, 458 U.S. 747 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982). Pursuant to the Supreme Court’s teaching in Ferber , I would weigh the government’s interest in protecting children from sexual exploitation against the possibility of inhibiting expression protected by the first amendment. In my opinion, the balance tips sharply in favor of upholding section 2251(a) as written. Protecting children from sexual exploitation is a compelling government interest, and the statute does not pose a substantial threat of inhibiting protected expression. As a result, the first amendment does not require us to judicially interpose a reasonable mistake defense to section 2251(a).

I

The law making child pornography a federal crime was the Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No.…