Child Abuse: History, Legislation and Issues

This report discusses child abuse legislation in United States, child abuse prevention and treatment, incidence of child abuse and neglect. The report provides a summary of major legislation in the 1st session of the 95th congress.

. CIHILD A.BUSE: I-IISTORY, L E G I S L A T I O N A N D ISSUES J E A N YAVIS JONES Analyst i n Social egis la tion Education and Public Welfare Division J a n u a r y 13, 1978 CONGRESSIONAL RESEARCH SERVICE LIBRARY OF CONGRESS TABLE OF CONTENTS Page I. CHILD ABUSE IN THE UNITED STATES 9 A. B. C. D. E. 11. .................... Early History of Child Abuse in the U.S. Early Reform Movements....................................... Technological Advances...............,....................... State Legislation Federal Legislation 5 6 7 ............................................ .......................................... CHILD ABUSE PREVENTION AND TREATMENT ACT (P.L. 93-247) ............................................ ...... A. Brief Description B. Summary of Activities Under P.L. 93-247................ C. Issues Relating to Child AbuseLPrevention and Treatment Act.. 111. 1 4 10 12 16 INCIDENCE OF CHILD ABUSE AND NEGLECT IV. CHILD PORNOGRAPHY ................................................... ........................................ A. Background B. Federal Approaches V. 24 25 SUMMARY OF MAJOR LEGISLATION IN THE 1ST SESSION OF THE 95TH CONGRESS \ APPENDIX - Federal and State Statutes Regulating Use of Children in Pornographic Material. CRS Report, Paul S. Wallace, Jr. .. 30 I r o n i c a l l y , i t may v e r y w e l l be the, a b h o r r e n c e o f c h i l d abuse w h i c h ' h a s made i t such a slow-moving a r e a o f both F e d e r a l and S t a t e l e g i s l a t i o n . The v e r y i d e a t h a t a p a r e n t , who i s supposed t o l o v e and p r o t e c t h i s o f f s p r i n g , could be r e s p o n s i b l e f o r h i s o r h e r c h i l d j s p h y s i c a l i n j u r y , ' o r even d e a t h , i s , s o r e p u l s i v e t h a t many a r e r e l u c t a n t t o b e l i e v e i t . Our c o u r t s and l e g i s l a - t u r e s have a l s o been r e l u c t a n t :o g e t inbolved i n i n t e r n a l f a m i l y government, p r e f e r r i n g t o l e t t h e f a m i l i e s determine t h e i r own laws and punishments. implied "hands-off" The p o l i c y followed by t h e government owes much t o o u r c l o s e v a s s o c i a t i o n w i t h ~ n g l i s hCommon Law. Under t h i s Common Law, t h e r i g h t o f t h e f a t h e r t o c u s t o d y and c o n t r o l o f h i s c h i l d r e n was c o n s i d e r e d v i r t u a l l y a b s o l u t e , even where t h i s was a t odds w i t h t h e w e l f a r e o f t h e c h i l d . o v e r t o some e x t e n t i n o u r own iegal A. This has c a r r i e d system. E a r l y H i s t o r y o f , C h i l d Abuse i n t h e U.S. I n C o l o n i a l America, t h e f a t h e r r u l e d b o t h h i s w i f e and h i s c h i l d r e n . p a r e n t a l d i s c i p l i n e was s e v e r e , and p a r e n t s , t e a c h e r s and m i n i s t e r s found just i f i c a t i o n f o r s t e r n d i s c i p l i n a r y measures i n t h e B i b l e . L e g a l l y s p e a k i n g , t h e e a r l y American c h i l d was, i n ' f a c t , l i t t l e more t h a n the prqperty o f hi% parents. I t wak n o t unusual f o r a c h i l d t o be' bound o u t t o o t h e r households a s a n i n d e n t u r e d s e r v a n t o r a p p r e n t i c e . The s h o r t a g e o f l a b o r i n C o l o n i a l America, as w e l l a s t h e s t r o n g l y p e r v a s i v e P u r i t a n work e t h i c , was r e f l e c t e d i n e e a r l y laws. I n 1'642, a M a s s a c h u s e t t s s t a t ~ t e ~ r e q u i r epda r e n t s and 1/ m a s t e r s t o p r o v i d e f d r t h e " c a l l i n g and imployrnent [ s i c ] o f t h e i r children."\ E a r l y lawe made a d i s t i n c t i o n between a p p r e n t i c e s h i p and s e r v i t u d e ( t h e former r e q u i r i n g t r a i n i n g i~ a t r a d e ) b u t t h i s was n o t always followed. t h e General .Court o f M a s s a c h u s e t t s , -1/ Order I1o f (1853) : 8-10, . ,- 1642, ~ a s s a c h u s e t t sRecords, ~ v c i n t u a l l ~two , forms . d f a p p r e n t i c e s h i p e v o l v e d . Under a v o l u n t a r y a p p r e n t i c e - s h i p , t h e c h i l d and h i s p a r e n t s e n t e r e d i n t o a n agreement on t h e i r o& i n i t i a , . t i v e . , The o t h e r form, compulsory a p p r e n t i c e s h i p , r e s u l t e d from t h e p r a c t i c e o f b i n d i n g o u t d e p e n d e n t c h i l d r e n , who had l i t t l e o r n o s a y i n t h e c h o i c e o f t h e i r master o r trade. .As t i m e v e n t o n , laws were p a s s e d p r o h i b i t i n g t h e b i n d i n g o u t o f i n f a n t s , b u t t h e p r a c t i c e o f b i n d i n g o u t c h i l d r e n , beyond i n f a n c y c o n t i n u e d . The e a r l i e s t r e c o r d e d t r i a l c a s e o f c h i l d a b u s e i n v o l v e d a m a s t e r and h i s -2 / apprentice. I n Salem, M a s s a c h u s e t t s , i n 1639, a man by t h e t h e name o f Marmaduke P e r r y was a r r a i g n e d f o r t h e d e a t h 0 5 h i s a p p r e n t i c e . g i v e n s t a t e d t h a t t h e boy had been i l l - t r e a t e d c o r r e c t i o n " by h i s m a s t e r . The e v i d e n c e and s u b j e c t t o " u n r e a s o n a b l e However, t h e b?y18 own c h a r g e t h a t h i s m a s t e r had been r e s p o n s i b l e f o r t h e f r a c t u r e o f h i s s k u l l (which u l t i m a t e l y r e s u l t e d i n h i s d e a t h ) was c a l l e d t o q u e s t i o n by t e s t i m o n y t h a t he had t o l d someone e l s e t h a t t h e i n j u r y was t h e r e ' s u l t o f f a l l i n g from a t r e e . The d e f e n d a n t was ' acquitted. I n 1643, a m a s t e r was e x e c u t e d f o r c a u s i n g t h e d e a t h o f h i s s e r v a n t boy, -3 / I and i n 1655 i n Plymouth, a m a s t e r was t r i e d and "was s u b s e q u e n t l y found g u i l t y o f m a n s l a u g h t e r and o r d e r e d ' b u r n e d i n t h e h a n d l . a n d a l l h i s goods c o n f i s 4/ cated."O t h e r e a r l y r e c o r d e d c a s e s show t h e m a s t e r s o f s e r v a n t c h i l d r e n be'ing admonished f o r a b u s e and i n some c a s e s t h e c h i l d r e n b e i n g £ r e e d from i n d ' e n t u r e because o f i l l - t r e a t m e n t . 111'1700, I V i r g i n i a i s s u e d s p e c i f i c laws f o r t h e pro- t e c t i o n of servants against mistreatment. -2 / -3/ 4/ - , Winthrop, J o h n . The H i s t o r y o f New England from lh30-1649. J . Savage, ed: B o s t o n , v . 1, 1853: 318-319. Rev. J o h n E l i o t ' s Records o f t h e F i r s t Church i n Roxbury, M a s s a c h u s e t t s . S i x t h R e p o r t o f Boston Record Commissioners, B o s t o n , 1881: 187. C h i l d r e n and Youth i n America: a Documentary H i s t o r y 1600-1865. R. B r e n n e r , e d . Cambridge, M a s s a c h u s e t t s , Harvard U n i v e r s i t y P r e s s , v. 1, 1970: 123. As can be s e e n , most o f ' t h e e a r l y recorded c a s e s o f , c h i l d abuse were spec i f i c a l l y r e l a t e d t o o f f e n s e s committed by m a s t e r s upon s e r v a n t s and d i d n o t r e f l e c t any movement toward p r o t e c t i n g c h i l d r e n from abuse by t h e i r own p a r e n t s . Whatever c o u r t a c t i o n t h e r e was i n v o l v i n g farni1.y m a t t e r s was l i m i t e d t o t h e removal o f , c h i l d r e n from " u n s u i t a b l e " home environments. "Uneuitable" u s u a l l y r e f e r r e d t o t h e p a r e n t s n o t p r o v i d i n g t h e i r c h i l d r e n w i t h a good r e l i g i o u s upb r i n g i n g , o r r e f u s i n g t o i n s t i l l i n them t h e v a l u e o f t h e work e t h i c . There were two c a s e s i n Massachusetts i n 1675 and 1678 i n which c h i l d r e n were removed 5/ I n t h e f i r s t c a s e , t h e c h i l d r e n were removed because o f " u n s u i t a b l e " homes. because t h e f a t h e r r e f u s e d t o s e e t h a t t h e y were "put f o r t h t o s e r v i c e a s t h e law d i r e c t s . I' b The second c a s e gave s i m i l a r j u s t i f i c a t i o n f o r t h e r e m o v a l . o f t h e c h i l d r e n , w i t t i t h a t o f f e n s e b e i n g compounded by t h e r e f u s a l o f t h e f a t h e r t o a t t e n d church s e r v i c e s . The removal b f c h i l d r e n from such " u n s u i t a b l e " home environments d i d n o t t r e f l e c t any concern about t h e p h y s i c a l abuse o f c h i l d r e n a n d , i n f a c t , may have been r e s p o n s i b l e f o r p u t t i n g them i n t o a more p o t e n t i a l l y dangerous environment. I t was a common p r a c t i c e f o r c h i l d r e n who were Pependent upon p u b l i c s u p p o r t t o be bound o u t . These c h i l d r e n would. b e a u c t i o n e d ' o f f t o t h e lowest d i d d e r , who would t h e n a c c e p t h i s payment from p u b l i c funds and t a k e t h e c h i l d a s a s e r v a n t o r apprentice. I p t h e l a r g e r c i t i e s where t h e problem o f p o v e r t y was g r e a t e r , dependent , c h i l d r e n were put i n t o alms houses. C o n d i t i o n s i n t h e s e p u b l i c poorhouses where c h i l d r e n were thrown i n w i t h a d u l t b e g g a r s , t h i e v e s , and paupers were d e p l o r able. -561/ - I t was n o t u n t i l t h e beginning o f t h e n i n e t e e n t h c e n t u r y t h a t major I b i d , p. 41-42. I b i d , p. 41. . efforts were made to provide separate residences for children, and it was not until then that public recognition of the abuse of these children in institutions was noted. . The dearth of recorded family child abuse case$ in early ~mericanhistory suggests the general tendency of the courts to allow parents their own discretion. in determining the kind and degrees of home discipline. Parents were,considered immune from prosecution unless the punishment was beyond the bound of ",reasonable7/ - ness" in relation to the offense, or excessive, or the child injured permanently. a In 1840, there was a criminal case in Tennessee which involved parental prosecution for excessive punishment. ?he evidence showed that the mother struck the child with her fists, and had pushed her head against a wall, and that the parents had whipped her with a cowskin, tied her to a bedpost with a rope for two hours, and switched her. .The court reversed the parents conviction holding that whether punishment was excessive was a question of fact for the jury to 81 decide rather than a que,stion of law."? B. Early Reform Movements -- Children as Animals It was not, until the second decade of the nineteenth century that public authorities began to intervene in cases of parental neglect. Most of th'e reform 'movements were directed toward children in institutions, however, and were aimed at preventing a neglected child from entering a life of crime. Probably the most significant and helpful of all reform campaigns for child protection was that launched by the American Society for the Prevention of Cruelty to,Animals (ASPCA). -71 -8/ In 1874, a church worker sought the help of the President of Thomas, Mason P. Child Abuse and Neglect. Legal Matrix and Social Perspectives. 1972: 305. Ibid. p. 305. Part I: Historical overview, North Carolina Law Review, v. 50,. t h e ASPCA on b e h a l f o f an abused c h i l d . The c a s e concerned a ten-year-old c h i l d named Mary E l l e n Wilson who was t h e v i c t i m o f c h i l d , a b u s e . foster A t t h a t time t h e r e were laws which p r o t e c t e d animals but n,o l o c a l , S t a t e o r F e d e r a l laws t o I protect-children. The c a s e was p r e s e n t e d t o t h e c o u r t on t h e t h e o r y t h a t t h e c h i l d was a member o f t h e animal kingdom, and t h e r e f o r e e n t i t l e d t o t h e same p r o t e c t i o n which t h e law gave t o animals. -9 / ' I n t h e a f t e r m a t h o f p u b l i c i n d i g n a t i o n o v e r t h e c a s e , E l b r i d g e T. G e r r y , t h e lawyer who r e p r e s e n t e d t h e ASPCA, founded t h e New York S o c i e t y f o r t h e P r e v e n t i o n of Cruelty t o Children. incorporated. I t was o r i g i n a l l y o r g a n i z e d . a s a p r i v a t e group and l a t e r L e g i s l a t i o n was soon passed i n New York ' a n d t c r u e l t y s o c i e t i e s were . a u t h o r i z e d t o f i l e complaints f o r t h e v i o l a t i o n o f any laws r e l a t i n g t o c h i l d r e n , and law enforcement and c o u r t o f f i c i a l s were r e q u i r e d t o a i d t h e s o c i e t i e s . Simila'r s o c i e t i e s were soon organized i n o t h e r c i t i e s throughout t h e c o u n t r y and by 1922 t h e r e were' 57 S o c i e t i e s f o r t h e P r e v e n t i o n o f C r u e l t y t o C h i l d r e n , and t 307 humane s o c i e t i e s concerned w i t h t h e w e l f a r e o f c h i l d r e n . With t h e a d v e n t o f government i n t e r v e n t i o n i n t o c h i l d w e l f a r e t h e number o f t h e s e s o c i e t i e s h a s declined. -Technological C. Advances One o f t h e main r e a s o n s f o r t h e l a c k o f p r o s e c u t i o n i n c h i l d abuse c a s e s h a s always been t h e d i f f i c u l t y i n d e t e r m i n i n g whether t h e p h y e i c a l i n j u r y was, i n 'c doctors r f d e l i b e r a t e a s s a u l t o r a n a c c i d e n t .' I n r e c e n t y e a r s , however, t h e a r e a o f p e d i a t r i c r a d i o l o g y have been a b l e t o d e t e r m i n e t h e i n c i d e n c e o f r e p e a t e d c h i l d abuse through more s o p h i s t i c a t e d developments i n x-ray technqlogy. Thesk, advances have allowed r a d i o l o g i s t s t o s e e more c l e a r l y such t h i n g s a s - s u b d u r a l ' m ~ o r Times, k A p r i l . l o , 11, 1874, and December 27, 1875. hematomas (blood c l o t s around t h e b r a i n r e s u l t i n g from blows t o t h e head) and This has brought about more r e c o g n i t i o n o f t h e widespread abnormal f r a c t u r e s . i n c i d e n c e of c h i l d a b u s e and p u b l i c r e a c t i o n has been on t h e r i s e . D. , State Legislation , . The d i s c o v e r y o f t h e b r u i s e d and weighted down body o f t h r e e - y e a r o l d Roxanne F e l u m e r o , i n t h e E a s t River i n 1969 s e t - o f f p a r t i c u l a r f u r o r when i t was d i s c o v e r e d t h a t j u s t two months p r i o r t o h e r d e a t h h e r p a r e n t s had been brought b e f o r e t h e New York Family Court f o r a l l e g e d n e g l e c t and a b u s e , and t h e judge had r e l e a s e d I t h e c h i l d back t o t h e i r custody. The i n a b i l i t y o f t h e S t a t e t o prove conclui v e l y t h e c r i m i n a l a c t o f c h i l d abuse can l e a d t o j u s t t h i s kind o f t r a g i c situation. The problem o f p r o t e c t i n g a c h i l d from abuse i s a p a r t i c u l a r l y d i f f i c u l t o n e , f o r i t i n v o l v e s a v i c t i m who o f t e n w i l l n o t , o r cannot t e s t i f y a g a i n s t h i s o r h e r a t t a c k e r ; i t i s u s u a l l y committed i n t h e p r i v a c y o f t h e home, and even when i t i s r e p o r t e d , i t i s d i f f i c u l t t o prove i n t h e absence o f e y e w i t n e s s e s . A l l f i f t y S t a t e s now have some form o f c h i l d abuse laws. These a r e b a s i c - a l l y concerned w i t h r e p o r t i n g iaws which encourage o r r e q u i r e t h e r e p o r t i n g o f s u s p e c t e d c h i l d abuse ( u s u a l l y by d o c t o r s and o t h e r p r o f e s s i o n a l p e r s o n s ) ; c r i - * minal law p r o v i s i o n s t o punish t h 6 s e who abuse c h i l d r e n ; j u v e n i l e c o u r t a c t s , I and S t a t e l e g i s l a t i o n t a e s t a b l i s h o r a u t h o r i z e p r o t e c t i v e s e r v i c e s f o r c h i l d r e n . Between 1963 and 1969, a l l f i f t y S t a t e l e g i s l a t u r e s passed some k i n d o f ' c h i l d abuse r e p o r t i n g s t a t u t e ; and a l l b u t f o u r had mandatory r e q u i r e m e n t s f o r r e p o r t i n g . I . It i s e s t i m a t e d t h a t t h e r e a r e thousands o f . c a s e s o f c h i i d abuse which remain un- reported every year. The problem i s d i f f i c u l t t o s o l v e through l e g i s l a t i o n . 1 The r e l u c t a n c e o f people t o g e t i n v o l v e d , and t h e p o s s i b i l i t y o f c i v i l s u i t s a g a i n s t I them if they do, seems to remain a deterrent, despite the fac that all but one of + the States have passed some-form of immunity legislation. Part of the problem may also lie in the lack of information about the subject. The first studies which appeared in.the early 1960's were often'more sensational than informative. Since that time more substantive studies have been conducted. The degree of immunity given and laws making the reporting of child abuse mandatory vary from State to State. In many States there are penal sanctions for failure to report. Most of these involve financial penalties, but there are a few States which have criminal penalties. Because of the variance of,reporting laws, legisiative models have recently been proposed by such groups as the United States Children's Bureau, the Council of State Governments, the American Humane ~gsociation,and the American Medical Association. E. Federal ~ e ~ lation i s he\ Federal Gove'rnment did not get involved in child weliare until 1912, when after considerable debate, Congress passed a bill to create the United States r Children's Bureau. 'This bill was signed into law by President Taft on'gpril 9, 1912, and authorized the creation of a special bureau to.do research and provide information about children. In 1935, with the passage of the Social Security Act, the Federal Government became more directly involved in child welfare services. ~rants'werdto be used for "...the protection and care of homeless, dependent, L and neglected5children and children in danger of becoming delinquent. " (NOW title I The 1962 Social Security Amendments required each State to make child welfare services available throughout the State to all children and provide coordination . between current child welfare services (title IV-B) and the social services under the Aid to Families with ~e~end'ent Children (now title XX) program. This latter requirement was to be accomplished by making maximum use of child welfare staff in providing consultation and services for children in families receiving public assistance. " The 1962 amendments also revised the definition of "child welfare services" to include specific reference to.the prevention or remedying of child abuse.-10I Since 1962, most of the funds for services for child protection have been spent under the Social Services Program (title IV-A and the later title XX, effective October 1, 1975) which provides services primarily for families on wel7 fare and under the Child Welfare Services Program (.Title IV B) with the major portion of funds under this latter program being spent on foster care (which is often considered a protective source). \ Funds have also been granted under title V (Maternal and Child Health) for # research studies on the subject of child abuse and neglect. Thus, Federal legislative activity in the area of child abuse (with the exception bf legislation for the District of Columbia) has been concentrated on financial assistance to the States for child welfare and social services and in research grants.' Traditionally, the Federal Government has stayed away from specific legislation regarding child abuse, considering it under the jurisdiction of the States. In the last few years, however, perhaps because of increasing awareness of the incidence of child abuse, and theiresulting public outcry, a number of bills were introduced in Congress concerning mandatory reporting requirements and' the creation of a National Center on Child Abuse and Neglect. 101 - - U.S. Congress. Senate. Committee on Finance. Report on H.R. 10606 Welfare Amendments of 1962. 87th Congress, 2nd Session, Washington, D. C. U.S. Govt. Print. Off., 1962: 15. On January 31, 1974, one of these bills (S. 1191), entitled The Child Abuse Prevention and Treatment Act was enacted (P.L. 93-247). FEDERAL PROGRAMS PROVIDING FINANCIAL ASSISTANCE FOR CHILD ABUSE AND NEGLECT PREVENTION AND TREATMENT ,Authorizing Legislation Type of Assistance Social Security Act a. Title IV A , Provides financial assistance to children in l o r income families meeting the eligibility requirements under the Act. Includes provision for financial assistance to children removed from such families as a result of a court determination that continued residence in the home of such a.family would be contrary to the welfare of the child (AFDC-Foster Care). b. Title IV B Provides grants to the States for child welfare ser-' vices. $Defines child welfare services to include 11 preventing, remedying, or assisting in the solution of problems,which may result in,the neglect, abuse, exploitation or delinquency of children." No income eligibility requirement. c; Title XX Provides financial assistance to the States for services to low-income p.ersons or families which are aimed at. 5 specific goals, one of which is "preventing, or remedying neglect, abuse or'exploitation of children or adults unable to protect their own interests or preserving, rehabilitating or reuniting families.". Child Abuse Prevention and Treatment Act Provides Federal financial assistance for the identification, prevention and treatement of child abuse and,neglect. Provides for the establishment of a National Center on Child Abuse and Neglect to gather information, conduct research, provide technical assistance, develop a clearinghouse on a1 1 programs for the prevention, identification, and treatment of child abuse and neglect, and make a full and complete study of the incidence of child abuse and neglect. Includes provision of grants for programs and projects which are directed at research, treatment, identification or prevention of child abuse and neglect. . 11. A. CHILD ABUSE PREVENTION AND TREATMENT ACT (P.L. 93-247) Brief Description On ~ a n u a r31, ~ 1974, the Child Abuse Prevention and Treatment Act (P.L. 93-247) was enacted to provide Federal financial assistance for the identification, prevention, and treatment of chi'ld abuse and neglect. The Act provided for the establishment of a National Center on Child Abuse and Neglect to collect and disseminate information on the subject as well as the incidence of child abuse and neglect. In addition, it mandated the creation of an Advisory Board on Child Abuse and Neglect to assist the Secretary in coordinating Federal programs relating to child abuse and neglect and in developing Federal standards for programs dealing in this area. Funding is available for project grants and research contracts designed to assist in the identification, prevention, and treatment of child abuse and neglect. available for: Ttiese are technical assistance to public and nonprofit private agencies I and organizations, research; and demonstration programs and projects to develop multi-disciplinary training programs, establish and maintain centers to provide support services, provide technical and other assistance to professionals, and . 3 support other innovative programs designed to identify and treat child abuse and neglect. Grants are also available to States which meet th; requirements 3 . under Sec. 4(b)(2) of the Act. Requirements,for eligibility under the State grant program include implem&tation of a State program which provides for reporting of known or suspected instances of child abuse and neglect; investigation of such reports by properly constituted authorities; provision of protective and treatment services to endangered children; effective administrative procedures and personnel to deal with child abuse gnd neglect; inmunity provisions for persons reporting suspected instances of abuse or neglect in, good faith; preservation of confidentiality of records with criminal sanctions for those illegally disseminating such records; cooperation between agencies , dealing with child. abuse and neglect cases; appointment of a guardian ad litem to represent an abused or neglected child.in a judicial proceeding; and,public dissemination of information on the problems, incidence, and other related information assisting in the identification, prevention, and treatment of child abuse and neglect. The States are also required to give special pref- erence in providing funds to parental self-help organizations dealing with child abuse and neglect. This program .is administered through the Office of the Secretary, Department of Health, Education, and Welfare, Administration on Children, Youth, and Families bi the Director of the National Center for Child Abuse and Neglect, which is lo=ated in the Children's Bureau. ' , Total funding author- ized under the Act for the period 1974 through 1977 was $85 million while appropriations have totalled $57.3 million for that same period. Appropriation and Authorization Levels for the Child Abuse Prevention and Treatment Act , Appropriation -Levels (in 000s) *Bill extending legislation not yet enacted. Authorizations (in 000s) B . Summary o f A c t i v i t i e s Under P.L. 93-247 I n FY 1975, 1 6 S t a t e s had met t h e r e q u i r e m e n t s o f P . L . ( 2 ) and were e l i g i b l e t o r e c e i v e F e d e r a l f u n d s . I 93-247 Sec. 4 ( b ) Grants f o r programs'relating , t o c h i l d a b u s e and n e g l e c t p r e v e n t i o n I n t h e s e S t a t e s amounted t o a n e s t i m a t e d $902,251 f o r t h a t y e a r ( s e e l i s t i n g o f S t a t e s and amount e a c h r e c e i v e d under t h i s Act b e l o w ) . .In FY 1976, t h e number o f S t a t e s e l i g i b l e f o r g r a n t s u n d e r t h e Act had grown t o 29 and i n FY 1977 38 S t a t e s and t h e D i s t r i c t o f Columbia, P u e r t o R i c o , V i r g i n I s l a n d s and American Samoa were e l i g i b l e f o r f u n d s u n d e r t h i s ~ c t : HEW b u d g e t j u s t i f i c a t i o n s f o r FY 1978 i n c l u d e e l i g i b i l i t y f o r 4 3 S t a t e s a s an o b j e c t i v e f o r t h i s f i s c a l year. It should be noted t h a t a s t h e number o f S t a t e s m e e t i n g e l i g i b i l i t y c r i t e r i a f o r f u n d i n g u n d e r t h i s program grows, t h e amount o f f u n d i n g f o r e a c h S t a t e program may d i m i n i s h u n l e s s a d d i t i o n a l f u n d s a r e a u t h o r i z e d and a p p r o p r i a t e d , o r u n l e s s t h e p e r c e n t a g e o f ' f u n d s a p p r o p r i a t e d f o r S t a t e g r a n t s i s i n c r e a s e d . The r e a s o n f o r t h i s i s t h a t t h e c u r r e n t law r e q u i r e s t h i t n o l e s s t h a n 5% o r more t h a n 20% o f t h e f i n d s approp r i a t e d b e u s e d f o r S t a t e g r a n t s . F o r FY 77 and 78 HEW h a s b u d g e t e d t h e f u l l 20% o f t h e a p p r o p r i a t i o n a l l o w e d , f o r a g r a n t t o t a l o f $3.785 m i l l i o n f o r e a c h y e a r t o 42 S t a t e s and t e r r i t o r i e s i n FY 77 and 43 S t a t e s - a n d t e r r i t o r i e s i n FY 1978. I n FY 1977 f u n d s w i t h i n ' t h e 20% which were n o t d i s t r i b u t e d t o S t a t e s were r e a l l o c a t e d t o o t h e r e l i g i b l e S t a t e s a p p l y i n g f o r s u c h f f n d s . 1t i s n o t c l e a r what w i l l happen i f m o r e W S t a t e st h a n a n t i c i p a t e d become e l i g i b l e f o r g r a n t s . The amount o f f u n d i n g a v a i l a b l e t o S t a t e s i s b a s e d on c r i t e r i a established dy t h e S e c r e t a r y t o achieve an e q u i t a b l e d i s t r i b u t i o n o f funds among t h e S t a t e s and l o c a l i t i e s . No f o r m u l a f o r a l l o c a t i o n i s s p e c i f i e d i n t h e ' l a w a l t h o u g h t h e law r e q u i r e s , t h a t t o t h e e x t e n t p o s s i b l e , e a c h S t a t e s h o u l d r e c e i v e some a s s i s t a n c e . Child Abuse Prevention and Treatment Act state Grants N 1974 r 1978 (est .) - FY 1974 , - FY - State Grant Program $ 19,335 (3 States) 902,251 (16 States) FY 1976, (includes transition quarter funds) 3,821,604 (29 states) FY 1977 3,7853000 (42 States & terriest.) tories FY 1978 3,785,000 '(43 States - - est.) CHILD ABUSE PREVENTION AND TREATMENT ACT 1977 STATE GRANT AWARDS FY 1974 - State Grant Awards State FY 1974 FY 1975 FY 1976 Transition Quarter Alabama Arkansas California Colorado ' Connecticut Delaware Dist. of Col. Florida Georgia Hawai i Illinois Kansas Kentucky Louisiana Maine Massachusett s Michigan Minnesota Miisissippi Missouri Nebraska New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Puerto Rico Rhode Island , South Carolina South Dakota Tennessee' Texas Utah Vermont Virgin Isl.ands Virginia Washington West Virginia American Samoa 11 Applied too late for transition quarter.. 2 1 Represents the FY 1977 basic grant plus a supplemental grant provided by * redistributing funds not a-warded. 2/ FY 1977- . ~25,712 Research and Demonstration The 1975 reportg'on fede;ally funded Child Abuse and Neglect prAjects and programs showed 63 various research and project grants awarded through the National Center for Child ~ b b s eand Neglect (this does not include State grants). seventeen of these provided funding for demonstration centers which were involved in management of child abuse and neglect cases and which included investigation, assessment, treatment, referral, public ekiucation, 24 hour hot-lines, supportive services and coordination with other agencies. Other research grants included funding for research, training development, technical assistance, evaluations, ,curricula development, innovative demoristration projects and information contracts directed at preventing, detecting, and treating child abuse and neglect.. The National Center has continued to support these kinds of effort:. The following table represents a breakdown of how Federal funds for child 1 abuse and neglect prevention under P.L. 93-247 were budgeted for FY 77 and are estimated for FY 78 (from Budget Justification for FY 78). Summary Table FY 1977 Activity Research and Demonstration Evaluation ~ncidenceStudies Technical Assistance Clearinghouse Publications State d rants Total New'Projects Continuations , Number of Projects , Estimated Cost FY 1978 Number of Estimated Projects Cost 48 2 78 9 1 43 43 5 2 25 42 ' 2 15 43 =Report of t h ~U.S. Department of HEW to the President and Congress of the United States on the implementation of Public Law 93-247. The Child Abuse Prevention and Treatment' Act. August 1975. C. Issues Relating to Child Abuse Prevention and Treatment Act The Select Education Subcommittee of the ~ o u s eEducation and Labor Committee held hearings on extending the Child Abuse Prevention and Treatment Act on February 25 and March 11, 1977. In addition, the 'Subcommittee of the Senate Human Development Committee held hearings on April 6 and 7, 1977, to discuss extension and proposed amendments to this Act: The testimony presented indicated I support for the continuation of this program, although problems and suggestions for change were discussed. State Grant Prozram Representatives from several States (~llinois,Maine, New Hampshire, Ver2 mont, Massachusetts, Connecticut, and Rhode Island) testified during the hearings that an increased proportion of funds should be, available for the State grant programs (currently funds for grants to states are limited to between 5% and 20% of total). There is some concern that as more and'more States become eligible. f6r grants under the State grant program, less money will be available to States already receiving grants, and as amounts diminisi less incentive wilt be provided for the States to conform to the requirements of the Act to develop their own programs. While funding has been available through the State grant program to all States meeting the requirements of the Act, not all States have been able to meet these requirements,and have cited various problem areas which make conformity difficult. Among these are: the requirement for a court-appointed ,, guardian ad litem for children involved in abuse and neglect cases is costly and time-consuming in terms of the demands it puts,on State judicial systems; and, that there are difficulties with the definition of "child abuse", particularly the lack of definition of "mental abuse" which some S,tates are having trouble defining. There are also general problems with the timeconsuming process of making the considerable administrative and legislative changes necessary for conformance. The testimony of the New England States in hearings held by the Subcommittee on Select Education indicated that they felt the requirements of the Act did not cause undue problems and that the removal of the requirement for a court-appointed guardian for children involved in such cases would represent a step backward. Research and Demonstration Grants The issue of duplication of,effort in the research and demonstration area of grant awards was raised during the hearings as was the issue of awardirig grants to private profitlnaking groups with no expertise in the subject area. In general, those testifying feit that more priority should be given 'to funding for programs which provide actual treatment and services to children ahd their families and that research efforts should be geared toward those which would have practical application. . Some criticism was directed at the National Center for Child Abuse and Neglect for poor coordination of research and demonstration activities (citing examples of different grants being given for sirnilarbresearch efforts) and lack of leadership. . b Confidentiality-and Privacy There has been some concern raised with regard to confidentiality and violations of privacy as a result of the establishment of central registries'to keep track 'of incidents of child abuse' and neglect'. while the .Act specifically CRS-18 i n c l u d e s a requirement t h a t S t a t e s preserve t h e c o n f i d e n t i a l i t y o f a l l records, t h e r e i s some c o n c e r n t h a t t h i s may b e * d i f f i c u l t t o a c h i e v e . Dangers may o c c u r i n c o m p u t e r i z e d s y s t e m s where' d e s p i t e t h e f a c t t h a t i n v a l i d r e p o r t s o f s L s p e c t e d c h i l d a b u s e o r n e g l e c t a r e supposed t o b e expunged from t h e s y s t e m , computer, . , o r human e r r o r may r e s u l t i n such r e p o r t s n q t b e i n g expunged. Some e x p e r t s b e l i e v e t h a t a t r a c k i n g s y s t e m o f some k i n d i s e s s e n t i a l i n o r d e r t o guage t h e a c t u a l i n c i d e n c e o f c h i l d a b u s e and n e g l e c t , a s w e l l a s . t o make s u r e t h g t a p p r o p r i a t e t r e a t m e n t and s e r v i c e s a r e b e i n g p r o v i d e d t o c h i l d r e n and f a m i l i e ' s i n need. Other I s s u e s Another c o n c e r n which h a s been e x p r e s s e d a b o u t t h e C h i l d Abuse P r e v e n t i o n and T r e a t m e n t Act i s t h a t i t i s t o o n a r r o w l y aimed* and s h o u l d i n c l u d ' e a n overa l l f o c u s on v i o l e n c e i n t h e f a m i l y which would i n c l u d e r e s e a r c h and a s s i s t a n c e t o v i c t i m s o f spouse abuse. C u r r e n t l y , t h e r e i s v e r y l i t t l e known a b o u t t h e i n c i d e n c e o r cause o f spouse abuse (although i t i s thought t o b e widespread) o r a b o u t t h e r e l a t i o n s h i p between s p o u s e and c h i l d a b u s e . , Recent r e p o r t s a b o u t t h e u s e o f c h i l d r e n i n pornography have g i v e n r i s e t o . s e v e r a l l e g i s l a t i v e p r o p o s a l s t o amend t h e c u r r e n t Act o r o t h e r F e d e r a l s t a t u t e s t o make s e x u a l e x p l o i t a t i o n o f c h i l d r e n i l l e g a l . P r e v e n t i o n and Treatment A C ~i n c l u d e s While t h e C h i l d Abuse sexual abuse under t h e d e f i n i t i o n of c h i l d a b u s e t h i s p a r t i c u l a r a s p e c t o f v i o l e n c e a g a i n s t c h i l d r e n h a s n o t been 1 g i v e n much a t t e n t i o n i n r e s e a r c h and r e l a t e d p r o j e c t s . Some e x p e r t s ' b e l i e v e t h a t o u r s t a t e o f knowledge a b o u t t h e s e x u a l a b u s e o f c h i l d r e n ( n o t o n l y t h r o u g h pornography b u t a l s o i n t h e home) i s d a n g e r o u s l y i n a d e q u a t e , and w h i l e we know a g r e a t d e a l a b o u t p h y s i c a l a b u s e and n e g l e c t o f c h i l d r e n we s t i l l have a g r e a t d e a l t o l e a r n about sexual abuse o f c h i l d r e n . 111. INCIDENCE OF CHILD ABUSE AND NEGLECT The most recent national data available on child &use and neglect are for 1975, and were compiled by the National Clearinghouse on Child Neglect and Abuse of the American.Humane Association. It should be noted that the actual incidence of child abuse and negiect is difficult to ascertain because of the reliance on reporting. The ,following "~ighli~hts of the 1975 National Data" provide8 information on reported cases only. Some experts assert that "as many.as 10,000 children are severely battered each year, at least 50,000 to 70,000 are sexually abused, 100,000 are emotionally neglected, and another 121 100,000 are physically', morally, and educ!tionally negleet;d.'r 121 - Fontana, Vincent J. Somewhere a child is crying. McMillan Publishing Co., Inc., 1973: 35. New York, New York, CRS-20 National Study on Child Neglect and Abuse Reporting Children's Division, American Humane Association HIGHLIGHTS OF 1975 NATIONAL DATA These highlights are compiled t o reflect the national experience with thk phenomena of child neglect and abuse during calendar year 1975. This report contains the best available data on nation$ experience and provides the only documentation o n national incidence and characteristics of reported cases of child neglect s n d * abuse. v There is a caveat. Thcsc highlights are a composite of. i n f o r m t i o n drawn from data submitted by states participating with the National Study project and from states not currently states snd territories were incorporated into the included in the project. By yeai-end 1975, Nationd Study system. Data from this source vag more detailed and specific; was comparable in form and substaw:. brcaube i t was largely furnished on a standard form; and, was error edited by Study st2ff. ? Data from non-participating states was furnished in cum~llativeicm, was 1:ss detaiied and speciiic. and was not subject to error check by Study staff. additional!^, it was not always as fully c o m p m b l i . because of differing s t a t e patterns and dcfinirions. It is importanr i o make clear that production of ;his data is a bonus and a by-product of the prcsent stage of development of the National Study. This project was created t o demonstrate the feasibility of a data-gathering method for systematically counting reported cases o f neglect and abuse. The ultimate goal and product was intended t o be the creation of a system which utilized data centers or registers in each state as the primary source for th'e national bank. Concentration of effort, therefore, has been on: I ) encouraging voluntary entry into the National Study system; 2) stimulating states to establish patterns for oentral storing of information in each state; and 3) the use o f a standard and universal form t o produce comparable data. Refinkment of process within states. to assure maximum accuracy and completeness of inform3tion.gathering and recording was seen as phase I1 o f the National Study operation-a stcp best taken after 3 substantial majority o f the states had voluntarily entered the sysrem. T o have implemented and imposed quality controls and measures in phase I o f the operation-the presdnt stage-would have created additional resistance and blocks t o voluntary participation by states not already enrolled in the system, and would have tended t o discourage states in the early stages of participation. The reality of these assumptions. was tested by National Study staff, and the hard . .knowlsdge was gained through the experience of trial and error. In light of the above, data on which these highlights are based may be subject t o question on the issue of finite accuracy. If anything, howcver,.it may err on the side of uhderstatement and in failing t o provide additional detail or more sophisticated breakdowns, a condition which will be corrected as more states enter the system and their input is refined. , CRS -2 1 1. Reporting: Neglect and Abuse 294,796 Total number of reports of neglect and abuse Number of cases-investigated Status undetermined Of investigated .cases o f neglect and abuse (?33,724),: Found to be valid Found not valid 139,267 94,457 (59.6%) (40.4%) Thus the validation rate for negledt and abuse'cases was found t o be a ratio of 6 0 5 0 : 11. . ~ e ~ l e V&U ct Abuse Number of neglect cases reported Number of abuse cases reported Ratio of neglect to abuse reporting was found to be about 2 neglect t o 1 abuse case. Number of nrglect/abuse cases h e . undifferentiated neglect and abuse) 1 79,837 TOTAL Comment : 294,796 9 The near 2-1 ratio of neglect over abuse reporting is biased t o show a lower than true ratio because: (1) 111. , Seven states reported only abuse cases and made n'o count,of neglect reports; (2) No state reported neglect only; (3) All reporting laws made reporting of abuse mandatory-not all make neglcct reporting mandatory; (4) Eleven states reported abuse and neglect together, with n o differentiation. Involved Children in ~ e ~ o r ' t Cases ed ' A total of 307,778 children were reported as being involved in reported cases during the year. There was no significant difference between the sexes of the children involved. 1V: - Soyrces of Reports Percentage of all Reports Sources 39.65 Aget~cySources Public and private social agencies, schools, and school personnel, law enforcement. courts, hotlines Individuals Neighbors, friends, relatives, siblings, self-referrals , * Medical Sotcrces Hospitals, physicians, Aurses, coroners, medical examiners Otlrers, (unspecified) V. Who Were Alleged Abusers-Nqlecters? This summary of results indicates that the natural parents are identified as the principal abusers-neglecters.. Relationship Natural Parents hlothen Fathers ~ r e ~ - ~ atsr e n Step-fathers Step-mothers Adoptive Parents Fathers Mothen Other Relatiies Siblings Others Percentage of Total 82.47% 56.70% 25.77% 5.31% 4.42% .89% .25% -14% .I 1% 3.49'10 .39% 3.10% Baby Sitters -49% . Other categories with miniscule percentages included foster parents. institut~onalstaff. and neighbors. The percentages are rounded out by "unknowns." VI: Types of Abuse Reportid* These statistics relate to types of abuse identified in validated cases of abuse or neglect and abuse. Physical Injuries-Minor . (contusions, abrasions, unspecified, no visible injuries) 32,142 51.3% Sexual A buse 6,696 10.'7% 1,680 2.7% 33 .I% 20,557 32.8% ~ h ~ s i cInjuries-Major al (bone fractures, subdural hematomas, in!ernal injuries, brain damage, skull fractures) Burns,' Scalding Congenital and Environmental Drug Addiction Physical Abuse (unspecified) . * More than one category may have been reported VII. for each child.. Types of Neglect Reported* These statistics relate to types of neglect identified in validated cases of neglect or neglect a,nd abuse. Physical Neglects, (unspecified, gross household neglect, lack of supervision, abandonment, exposure to elements, inadequate shelter, clothing, hygiene, etc.) 100,544 78.1% Medical Neglect (lack of medical diagnosis and treatment, malnutrition, etc.) 12,396 9.6% Emotional Neglect (~sychblogicalimpairment, failure to thrive) 10,045 7 3% Education Neglect 5,714 , 4.5% . * More than one category may have been reported for each child. Type of abuse or neglect was not recorded for 29,740 children. AMERIC4N HUMANE The Amer~conHumane Association 5351 5 Roslyn S t n e t , Engleweod, Colorado 801 10 ' CRS-24 IV . CHILD PORNOGRAPHY A . Background Early in 1977, New York Psychiatrist and head of the Odyssey Institute (a drug rehabilitation and child abuse center) Dr. Judianne Densen-Gerber held a press conference in which she publicized a growing phenomena in the United States, the use of young children engaged in sexually explicit acts in pornographic films and photographs. As public awareness of child pornography and prostitution has grown, so too, has public outrage. Several States have begun to reexamine their State laws to see if more can be done to protect children from this sort of abuse. In New York, State legislation was introduced to pro- vide long prison terms for parents or other persons producing, profiting from, or promoting pornographic performances by children. The problem is that.it is very difficult for police to find out who is responsible for such films. addition, complexities invo:ved In in the issue of first amendment freedoms and obscenity serve to make it difficult for investigators and prosecutors to stop thk sale of such material. Arrests for distribution of pornographic material using children do not result in any stiffer penalties than ordinary obscenity cases, while a complex and hidden,network of publishers'and producers remains hidden from sight. In many States the charge for distributing obscene material is a misdemeanor and the use of children in those films does .not change such charges. On the Federal level, some 25 bills were introduced in the first session of the 95th Congress prohibiting the participation of children under sixteen in pornographic films, photographs and the transportation and dissemination of such films and photographs (see Section V for legislative status and description of major bills). These bills have been sponsored and co-sponsored CRS -25 by more than 100 Members of Congress and hearings have been held by committees with jurssdiction over child welfare matters and by those with jurisdiction , over the criminal code. i B. . Federal Approaches for Intervention The issue b f child pornography is a dual one. It is basically related to the prdtection of children (generally considered to.be a State or local matter of concern), but it is also rklated to the question if obscehity and the First hendment freedoms. Because of the generally accepted authority of State and I local governments over matters of child welfare and because of the continuing controversy over the power of the Federal Government to legislate with respect to obscenity, dealing with this issue is more compLex than otherwiee might be expected . The most obvious approach which can be taken, and one with which there does not appear to.be any jurisdictional dispute is in amending the current Child Ab'use.~reventionand Treatment Act to provide specific research and program operating funds for the treatment and prevention of sexua1,abuse of . children. Another approach would be to amend the current Federal obscenity statutes * to add a prohibition against the use of children in pornographic films and I literature, ~ h e s elaws involve the mailing, broadcasting and interstate transport of obscene material. (See Appendix - Federal and State statutes Regulating Usc'of children in Pornographic Material for a more detailed discussion.) A t h i r d a r e a i n which t h e F e d e r a l Government e x e r t s a u t h o r i t y r e l a t i n g t o t h e i s s u e o f sexual e x p l o i t a t i o n o f c h i l d r e n i s through t h e r e g u l a t i o n of child labor practices. While t h e F e d e r a l F a i r Labor S t a n d a r d s Act p r o v i d e s f o r p r o t e c t i o n o f c h i l d r e n employed i n t h e m a n u f a c t u r e o f p r o d u c t s which t r a v e l t h r o u g h i n t e r s t a t e and f o r e i g n commerce, t h e r e i s a n e x c e p t i o n from t h e C h i l d Labor S t a n d a r d s f o r "any c h i l d employed a s a n a c t o r o r p e r f o r m e r i n motion p i c t u r e s , o r t h e a t r i c a l productions, o r i n r a d i o o r t e l e v i s i o n p r o d u c t i o n s " (CFR Sec. 570.125). T h i s means"that1 t h e u s e o f c h i l d r e n . u n d e r t h e age o f s i x t e e n i n pornographic f i l m s does not i n i t s e l f c o n s t i t u t e a \ v i o l a t i o n o f t h e F e d e r a l F a i r Labor S t a n d a r d s A c t . I t i s n o t c l e a r whether * t h e Department o f Labor would have a u t h o r i t y t o e x c l u d e p a r t i c i p a t i o n o f c h i l d r e n i n p o r n o g r a p h i c p r o d u c t i o n s from t h i s e x c e p t i o n by way o f r e g u l a t i o n o r i f l e g i s l a t i o n would be r e q u i r e d t o p r o h i b i t s u c h a c t i v i t y . I f such a change were e f f e c t e d , p e n a l t i e s would i n c l u d e a f i n e a n d / o r imprisonment. (The p e n a l t y u n d e r t h e F a i r Labor S t a n d a r d s Act i s a f i n e o f n o t more t h a n $10,000 and imprisonment f o r n o t more t h a n s i x y e a r s o r b o t h . ) The f i r s t two a p p r o a c h e s have been i n c l u d e d i n l e g i s l a t i o n , c o n s i d e r e d t i n t h e f i r s t s e s s i o n o f t h e 9 5 t h Congress. ( S e e S e c t i o n V f o r Summary o f L e g i s l a t i o n i n t h e 95th Congress.) V. . SUMMARY OF MAJOR LEGISLATION I N THE 1ST SESSION OF THE 95TH CONGRESS b ~ u t h o r i z a t i o n 'f o r f u n d i n g under' t h e C h i l d Abuse P r e v e n t i o n and Treatment Act e x p i r e d a t t h e end o f FY 1977. Two b i l l s (H.R. 6693 and S. 961) would 'amend and e x t e n d t h e c u r r e n t A c t , w h i l e two o t h e r r e l a t e d b i l l s ( H . R . and S . 1585) would amend t h e U.S. 8059 Code t o p r o h i b i t t h e s e x u a l e x p l o i t a t i o n of'children, All four bills include provisions relating to sexual exploitation of children. The following provide's a brief description of these bills and their status. * H.R. 6693 ACTION: - Child Abuse Prevention and Treatments Amendments of 1977 Passed the House, September 26, 1977. Passed the Senate after amkndments to insert provisions of S., 961 in lieu of House-passed version, October 27, 1977. Conference not yet,scheduled. SVMMARY: Extends authorization for the Child Abuse Prevention and Treatment Act through fiscal year 1982, with'appropriation levels sf $25 million in FY 1978, $27.5 million in FY 1979 and $30 million each 'for FY 1980, 1981, and 1982. Adds dissemination of information to the responsibilities of the National Center on Child Abuse .and Neglect and requires that the Secretary of HEW establish research priorities and provide for a system of peer review of research funded by the Center. Expands the definition of child abuse and neglect to include the sexual exploitation of children. Increases from 20 to 30 percent the maximum amount of appropriated funds which can be used for the State grant program. Adds' a new section to the Act which ,provides legal sanctions against any person permitting a ohild to be sexually exploited, as well as any person who manufactures, reproduces or duplicates any film depicting a child engaging in sexually prohibited acts or who knowingly 'b transports or receives or make; availa6le for profit such mate&ls through interstate and foreign commerce. shipped In addition the bill allows the Secretary to make grants to private nonprofit organizations for the support CRS-28 of at least nine centers to provide treatment and services to sexually abused children and persons committing acts of sexual abuse against children. S. 961 - ACTION : Opportunities for Adoption Act of 1977, Includes Title 11, Amendments to the Child Abuse Prevention and Treatment Act Passed the Senate October 27, 1 9 7 7 . a ~H.R. 6693 (see above H.R. 6693) by striking out all after the-enacting clause and substituting the , provisions of S. 961 in lieu thereof. Conference not yet scheduled. SUMMARY : Title I of the bill covers the adoption assistance portion of the legislation. It would create a panel o f experts in HEW to develop a model State adoption law which would include,an adoption assistance program and the reduction of current barriers to interstate adoptions. In addition, it would establish an adoption information exchange, system to assist in matching eligible children with prospective adoptive parentsfand would require to gather pata nationally on adoption and foster care programs. KEW HEW would also be required to provide fo; an information clearinghouse, education and tracking progra.8, and for a study of so-called blagk market adoptions. Title I1 of the bill would provide for an extension of the authorizations for the Child Abuse Prevention and Treatment Act 'for twb years at the existing $25 million level. In addition it would include grants for research under a . -- 50% earmark of funds for demonstration and resource-.projects so that more .&... funds would be available for basic research. It would change the limitation " on funds for State grant programs from "no more than" to "not less than" 20% o f t h e appropriated funds. In addition, the bill would authorize an addi- tional $2 million each in FY 1978 and FY 1979 for programs specifically aimed at preventing an.d treating cases of sexual child abuse. S. 1585 (and H.R. 8059) -"Protection of Children Against Sexual Exploitation Act of 1977 ACTION: S. 1585 passed the Senate, October 10,.1977,. H.R. 8059 passed the House with instruction to conferees to agree I with S. 1585 provisions relating to transport and distribution of materials, October 25, 1977. Conference on S. 1585, October 27, 1977. Senate agreed to Conference report, November 3, 1977. House - Conference report filed, November 4, 1977. SUMMARY OF CONFERENCE REPORT: S. 1585 "Protection of Children Against Sexual Exploitation Act of 1977" would make three changes in Title 18 of the U.S. Code: 1. Would add a new sect,ionmaking it a Federal crime for anyone to cause any child under 16 to engage in sexually explicit conduct for the purpose of producing matkials that are to be transported in interstate commerce. 2. Would add a ~ompanionsection which would prohibit the sale or dis- tribution of any obscene materials that depict children engaging in sexually explicit conduct if such materials have been mailed or transported in interstate commerce. 3. , Would amend Section 2423 i ~ a n nAct) b f title 18 to prohibit the transportation of both males and females under the age of eighteen for the n . purpose,of engaging in prostitution or other sexually explicit conduct for commercial purposes. APPENDIX THE LIBRARY OF CONGRESS Congressional Research Service I WASH1NCX)N. D.C. 20140 FEDERAL AND STATE STATUTES REGULATING USE OF CHILDREN I N PORNOGRAPHIC KATERIAL pa61 S. Wallace, Jr. Legislative Attorney American Law Division March 1, 1977 APPENDIX I. FEDERAL AND STATE STATUTES REGULATING USE OF CHILDREN IN PORNOGRAPHIC MATERIAL There are presently five Federal laws which prohibit distribution of "obscene" materials in the United States. material (18 U.S.C. One prohibits any mailing of such 5 1461); another prohibits the importation of obscene materials into the United States (19 U.S.C. broadcast of obscenity (18 U.S.C. 5 1305); another prohibits the S 1464); and two laws prohibit the inter- state transportation of obscene materials or the use of common carriers to transport such materials (18 U.S.C. 5 S 1462 and 1465). 1968 Federal Anti-Pandering Act (39 U.S.C. In addition, the S 3008) authorizes postal patrons to request no 'further mailings of unsolicited advertisements from mailers . who have previously sent them advertisements which the3 deem sexually offen- sive in their sole judgment, and it further prohibits mailers from ignoring , such requests. There is no present Federal statute specifically regulating the distribution of sexual materials to children, . , Five Federal agencies are responsible for the enforcement of the foregoing statutes. The Post office' Department, the Customs Bureau, and the Federal Communications Commission investigate violations within their jurisdictions. The F . B . 1 investigates violations of the statutes'dealing I with'traneportation and common carriers. The Department of Justice is resbonsible for prosecutidn or other judicial enforcement. It has long been recognized that the State,has a valid special inter'eat in the well-being of its children. Prince v. com. of Massachusetts, 321 U.S. 158 (1944). A State may regukate the materials that juveniles view and read even if they could not be proscribed for adults. I n G i n s b e r g v. New York, 390 U.S. 629 ( 1 9 6 8 ) , t h e U.S. Supreme C o u r t u p h e l d a New York c r i m i n a l s t a t u t e t h a t makes i t u n l a w f u l t o knowingly s e l l h a r m f u l m a t e r i a l t o a minor ., - The d e f e n d a n t i n G i n s b e r g c o n t e n d e d t h a t t h e S t a t e s t a t u t e v i o l a t e d t h e F i r s t Amendment. I n r e s p o n s e , t h e Court s t a t e d t h a t t h e s t a t u t e a p p l i e d o n l y t o s e x u a l l y o r i e n t e d m a t e r i a l t h a t was found o b s c e n e u n d e r a c o n s t i t u t i o n a l l y acceptab1.e d e f i n i t i o n o f o b s c e n i t y . There was no f i r s t Amendment v i o l a t i o n s i n c e , a s t h e C o u r t had n o t e d i n p r i o r d e c i s i o n s i n v o l v i n g "general" ( a d u l t ) o b s c e n i t y s t a t u t e s , obscene m a t e r i a l i s not p r o t e c t e d s p e e c h under t h e F i r s t Amendment. The G i n s b e r g o p i n i o n a l s o n o t e d t h a t t h e S t a t e had ample j u s t i f i c a t i o n t o s u s t a i n i t s r e g u l a t i o n o f a n act i v i t y t h a t was n o t p r o t e c t e d by t h e F i r s t Amendment. stat; The C o u r t n o t e d two i n t e r e s t s t h a t j u s t i f y t h e New York l i m i t a t i o n s o n t h e commercial d i s s e m i n a t i o n of obscene m a t e r i a l t o minors. F i r s t , t h e l e g i s l a t u r e could p r o p e r l y conclude t h a t t h o s e p r i m a r i l y r e s p o n s i b l e f o r c h i l d r e n ' s well-being I $ a r e > e n t i t l e d t o t h e s u p p o f t o f laws d e s i g n e d t o a i d d i s c h a r g e o f t h a t r e s p o n sibility. Second, t h e S t a t e h a s a n i n d e p e n d e n t i n t e r e s t i n p r o t e c t i n g t h e w e l a r e o f ' c h i l d r e n and s a f e g u a r d i n g them from a b u s e s . F o r t y - s e v e n S t a t e s and t h e D i s t r i c t o f Columbia h a v e some t y p e o f s p e c i a l p r o h i b i t i o n a g a i n s t t h e dissemination o f obscene date rial^ t o milnors. However, o u r r e s e a r c h revealed t h a t o n l y s i x o f t h e s e S t a t e s have p r o v i s i o n s p r o h i b i t ~. i n g t h e p a r t i c i p a t i o n o f m i n o r s i n a n o b s c e n e p e r f o r m a n c e which c o u l d b e h a r m f u l t o them. These S t a t e s a r e : Connecticut General Statutes Annotated S 53-25. Unlawful exhibition or employment of child Any person who exhibits, uses, employs, apprentices, gives away, lets out or otherwise disposes of any child under the age of sixteen years, in or for the vocation, occupation, service or purpose of rope or wire walking, dancing, skating, bicycling or peddling or as a gymnast, contortionist, rider or acrobat, , in any place or for any obscene, indecent or immoral purpose, exhibition or practice or for or in any business, exhibition or vocation injurious to the health or dangerous to the life or limb of such child or causes, procures or encourages any such child to engage therein, shall be fined not more than two hundred and fifty dollars or imprisoned not more than one year or both. (1949 Rev., S 8373.) -North Carolina General Statutes -- (a) It 14-150.1. Obscene literature and exhibitions.. shall be unlawful for any person or corporation to intentionally' disseminate obscenity in any public place. A person, firm or cotporation disseminates obscenity within the meaning of this Acticle if he or it: (1) Sells, d e l i ~ e r s ' oprovides ~ or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or (2) Presents or directs an obscene play, dance or other performance or participates directly in that portion thereof which makes it obscene; or (3) Publishes, exhibits or otherwise makes available anything obscene; or ( 4 ) Exhibits, presents, rents, sells, delivers or provides; or offers or agrees to exhibit, present, rent or to provide,' any obscene still or motion picture, film, filmstrip, or projection slide, or sound recording, sound tape, or sound track, or any matter or material of whatever 'form which is a represexitation, embodiment, performance, or publication of'the ohscene. (b) For ,purposes of this 'Article any material is obscene if: (1) The material depicts or describes in a patently offensive way sexual conducb specifica,lly defined by subsection (c) of this section; and ( 2 ) The average person appiying contemporpry statewide community standards relating to the depiction or representation of sexual matters would find that the material 'taken as a whole appeals to the prurient interest in sex; and ( 3 ) The material lacks serious literary, artistic, political, education or scientific value; and , (4) The material as used is not protected or privileged under the Constitution of the United States or'the Constitution of North Carolina. (c) Sexual conduct shall be defined as: (1) Patently offensive representations or descriptions of actual sexual intercourse, normal or perverted, and or oral; ( 2 ) Patently offensive representations or descriptions of excretion in the context of sexual activity or lewd exhibition of uncovered genitals, 'in the context of masturbation or other , sexual activity. (dl Obscenity shall be judged with reference to ordinary adults except that it shall be judged with reference to children or other especially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be especially designed for or directed to such children or audiences. In any prosecution for any offense involving disbemination of obscenity under this Article, evidence shall be admissible to show: The character of the audience for which the material was designed or to which it was directed; Whether the material is published in such a manner that an unwilling adult could not escape it; Whether the material is exploited so as to amount to pandering; What the predominant appeal of the material would be for ordinary adults or a special audience, and what effect, if any, it would probably have on the behavior of s k h people; Literary, artistic, political, educational, scientific, or other social value, if any, of the material; The.degree of public acceptance of the material throughout the State of North Carolina. Appeal to prurient interest, or absence thereof, in advertising or in the promotion.of the material. Expert testimony and testimony of the auditor, creator or publisher relating to factors entering into the determination of the issue of. obscenity shall also be admissible. (e) It shall be unlayful for any person, f i r m or corporation to knowingly and intentionally create, buy, procure or possess obscene material with the purpose ahd intent of disseminating it unlawfully. (f) It shall be unlawful for a person, firm or corporation to advertise or otherwise promote the sale of material represented or . held out by said person, firm or corporation as obscene. (g) Any person, firm or corporation violating the provisions of this section shall be guilty of a misdemearlor and, unless a greater penalty is expressly provided .for in this Article, shall be fined or imprisoned in the discretion of the court. ' (1971, c~ 405, s. 1; .. 1973, c. 1434,, s .l. 5 14-190.6. Employing or permitting minor to assist in offense Every person 18 years of age or older who intentionunder article. ally in any manner, hires, employs, uses or permits any minor under the age of 16 years to do or assist in doing any act or thing constituting an offense under this Article and involving any material, act or thing he knows or reasonably shquld know to be obscene within the meaning of G.S. 14-190.1, shall be guilty of a misdemeanor, and unless a greater penalty is expressly provided for in this Article, shall be punishhble in the discretion of the Court. (1971, c. 405, s. 1). -- L North Dakota Century Code S 12.1-27.1-03. Promoting obscenity to minors--Minor performing in obscene performance--Classification of offenses.--1. It shall be a class C felony for a person to knowingly promote to a minor'any material'or performance which is harmful to minors, or to admit a minor to premises where a performance harmful to minors is exhibited or takes place. 2 . It shall be a class C felony to permit a minor to participate in a performance which is harmful to minors. Code of Laws of South Carolina > . 5 16-141.1. ~istribution,etc., of obscene matter; definitions.-For the purposes of S S 16-414.1 to 16-414.9: (a) "Obscene" means that to the average person, applying contemporary standards, the predominant appealjof the matter, taken as a whole', is to prurientainterest among which is a shameful or morbid interest in nudity; sex or excretion, and which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is to be distributed to minors under sixteen years of age, predominant appeal shall be judged with reference to such class ~ f ~ m i n o r s . , (b) "Matter" means any book, magazine, newspaper or other printed or written material or any picture, drawing, photograph, motion picture or other pictorial representation or'any statute or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other article, equipment, machine or material. (c) "Distribute" means to transfer possession of, whether with or without consideration. (dl The word "knowingly" as used herein means haaving knowledge of the contents of the.subject matter or failing after :riaso.nable opportunity to exercise reasonable inspection which would have dis- 4 closed the character of,such subject matter. (1965 (54) 4760; 1966 ( 5 4 ) 2273.) 5 16-414.4. Same; employment o f minor under s i x t e e n .--It s h a l l be u n l a w f u l f o r any p e r s o n who, w i t h knowledge t h a t a p e r s o n i s a minor under s i x t e e n y e a r s o f a g e , o r who, w h i l e i n p o s s e s s i o n o f such f a c t s t h a t h e s h o u l d r e a s o n a b l y know t h a t s u c h p e r s o n i s a minor under s i x t e e n y e a r s o f a g e , t o h i r e , employ, o r t o u s e such minor t o d o o r a s s i s t i n d o i n g any o f t h e a c t s p r o h i b i t e d by 5 5 164 1 4 . 1 t o 16-414.9. (1965 ( 5 4 ) 4 7 0 . ) Tennessee Code Annotated 39-3013. Importing, preparing, d i s t r i b u t i n g , possessing o r appearing i n obscene m a t e r i a l o r e x h i b i t i o n - - D i s t r i b u t i o n t o o r employment b f minors--Penalties.--(A) It s h a l l be unlawful t o knowingly send o r c a u s e t o b e s e n t , o r b r i n g o r c a u s e t o b e b r o u g h t , i n t o t h i s st'ate f o r s a l e , d i s t r i b u t i o n , e x h i b i t i o n , o r d i s p l a y , o r i n t h i s s t a t e t o prepare f o r d i s t r i b u t i o n , publish, p r i n t , e x h i b i t , d i s t r i b u t e , o r o f f e r t o d i s t r i b u t e o r t o possess with i n t e n t t o dist r i b u t e o r t o e x h i b i t o r o f f e r t o 4 d i s t r i b u t e any obscene m a t t e r . It s h a l l be u n l a w f u l t o d i r e c t , p r e s e n t , , o r produce a n y o b s c e n e t h e a t r i c a l p r o d u c t i o n o r l i v e performance and e v e r y p e r s o n who p a r t i c i p a t e s i n t h a t p a r t o f such p r o d u c t i o n which r e n d e r s s a i d p r o d u c t i o n ' o r performance o b s c e n e i s g u i l t y o f s a i d o f f e n s e . (B) N o t w i t h s t a n d i n g any o f t h e p r o v i s i o n s o f S S 39-3010--393022, t h e d i s t r i b u t i o n o f o b s c e n e m a t t e r t o m i n o r s s h a l l b e governed by 539-1012 e t s e q . I n c a s e o f any c o n f l i c t between t h e p r o v i s i o n s o f SS.39-2010--39-3022 and 5 39-1012 e t s e q . , t h e p r o v i s i o n s o f t h e l a t t e r s h a l l p r e v a i l a s t o minors. ( C ) It s h a l l b e u n l a w f u l t o h i r e , employ, o r u s e a minor t o d o o y a s s i s t i n d o i n g a n y o f t h e a c t s d e s c r i b e d i n s u b s e c t i o n (A) w i t h knowledge t h a t a p e r s o n i s a minor u n d e r e i g h t e e n ( 1 8 ) y e a r s o f a g e , o r while i n possession o f such f a c t s t h a t he o r s h e should reasonably k n o w , t h a t such p e r s o n i s a minor under e i g h t e e n ( 1 8 ) y e a r s o f a g e . (Dl ( 1 ) Every p e r s o n who v i o l a t e s s u b s e c t i o n (A) i s p u n i s h a b l e by a f i n e o f n o t l e s s t h a n two hundred f i f t y d o l l g r s ( $ 2 5 0 ) n o r more t h a n f i v e thousand d o l l a r s ( $ 5 , 0 0 0 ) , o r by c o n f i n e m e n t i n t h e c o u n t y j a i l o r workhouse f o r n o t more t h a n o n e ( 1 ) y e a r , o r by b o t h f i n e . and c o n f i n e m e n t . I f such p e r s o n h a s p r e v i o u s l y been c o n v i c t e d a v i o l a t i o n o f s u b s e c t i o n (A) of a v i o l a t i o n o f S S 39-3010--39-3022, i s p u n i s h a b l e a s a f e l o n y by a f i n e o f n o t l e s s t h a n f i v e hundred d o l l a r s ( $ 5 0 0 ) n o r more t h a n t e n thousand d o l l a r s ( $ 1 0 , 0 0 0 ) , o r by imprisonment i n t h e s t a t e p e n i t e n t i a r y f o r a t e r m o f n o t l e s s t h a n two ( 2 ) n o r more t h a n f i v e ( 5 ) y e a r s o r by b o t h f i n e - and imprisonment. ( 2 ) Every p e r s o n who v i o l a t e s s u b s e c t i o n (C) i s p u n , i s h a b l e by a f i n e o f n o t l e s s t h a n two hundred f i f t y d o l l a r s ( $ 2 5 0 ) n o r more t h a n f i v e t h o u s a n d d o l l a r s ( $ 5 , 0 0 0 ) o r by c o n f i n e m e n t i n t h e c o u n t y j a i l o r wotkhouse f o r n o t more t h a n one ( 1 ) y e a r , o r by b o t h f i n e and c o n f i n e m e n t . I f such p e r s o n h a s been p r e v i o u s l y c o n v i c t e d o f a v i o l a t i o n o f S S 39-3010-39-3022, a v i o l a t i o n o f s u b s e c t i o n ( C ) i s puni s h a b l e a s a f e l o n y and by a f i n e o f n o t l e s s t h a n f i v e hundred d o l l a r s ( $ 5 0 0 ) n o r more t h a n t e n thousand d o l l a r s ( $ 1 0 , 0 0 0 ) , o r by imprisonment . i n t h e s t a t e p e n i t e n t i a r y f o r a t e r m o f n o t l e s s t h a n [ A c t s 1974 ( ~ d j .S . ) , two ( 2 ) y e a r s n o r m o r e - t h a n f i v e ( 5 ) y e a r s . c h . 510, 53; 1975, c h . 306, $1.1 Vernon's Texas Code Annotated S a l e , D i s t r % b u t i o n , o r D i s p l a y o f Harmful M a t e r i a l t o Minor ( a ) For p u r p o s e s o f t h i s s e c t i o n : 5'43.24. ( 1 ) ."Minorf' means a n i n d i v i d u a l younger t h a n 17 y e a s . ' ( 2 ) " ~ a r m ' f u lm a t e r i a l " means m a t e r i a l whose dominant theme t a k e n a s a whole: (A) a p p e a l s t o t h e p r u r i e n t i n t e r e s t o f a m i n o r , i n sex, nudity, o r excretion; (B) i s p a t e n t l y o f f e n s i v e t o p r e v a i l i n g s t a n d a r d s i n t h e a d u l t community a s a whole w i t h r e s p e c t t o what i s s u i t a b l e f o r m i n o r s ; 'and (C) i s u t t e r l y w i t h o u t redeeming s o c i a l v a l u e f o r m i n o r s . ( b ) . A p e r s o n commits a n o f f g n s e i f , knowing t h a t t h e m a t e r i a l i s harmful: ( 1 ) and knowing t h e p e r s o n i s a m i n o r , h e s e l l s , d i s t r i b u t e s , e x h i b i t s , o r possesses f o r s a l e , d i s t r i b u t i o n , o r e x h i b i t i o n t o a minor h a r m f u l m a t e r i a l ; ( 2 ) h e d i s p l a y s h a r m f u l m a t e r i a l and i s r e c k l e s s a b o u t whet h e r a m i n o r i s p r e s e n t who w i l l b e o f f e n d e d o r a l a r m e d by t h e display; or ' ' ( 3 ) h e h i r e s , employs, o r u s e s a minor t o d o o r a c c o m p l i s h o r a s s i s t i n doing o r accomplishing any o f t h e a c t s p r o h i b i t e d in,Subsection ( b ) ( l ) o r '(bI(2) of t h i s section. ( c ) ' I t i s a defense t o p r o s e c u t i o n under t h i s s e c t i o n t h a t : ( 1 ) t h e s a l e , d i s t r i b u t i o n , o r e x h i b i t i o n was by a p e r s o n having s c i e n t i f i c , e d u c a t i o n a l , governmental, o r o t h e r s i m i l a r justification; or (2) t h e s a l e , d i s t r i b u t i o n , o r s e x h i b i t i o n was t o a m i n o r who was accompanied b y a c o n s e n t i n g p a r e n t , g u a r d i a n , o r s p o u s e . I ( d ) An offe'nse under t h i s s e c t ' i o n % i sa C l a s s A misdemeanor u n l e s s i t i s committed under S u b s e c t i o n ( b ) ( 3 ) o f t h i s s e c t i o n i n which e v e n t i t i s a f e l o n y o f t h e t h i r d d e g r e e . The pqwer o f t h e F e d e r a l Government t o l e g i s l a t e w i t h r e s p e c t t o o b s c e n i t y p e r s e i s n o t e x p r e s s l y g r a n t e d t o Congress i n A r t i c l e I , o r e l s e w h e r e , i n t h e 'United S t a t e s C o n s t i t u t i o n . T h e r e f o r e , ian e n a c t i n g F e d e r a l laws s e e k i n g t o d e a l w i t h t h e o b s c e n i t y problem, c o n g r e s s h a s t r a d i t i o n a l l y invoked i t s power t o l e g i s l a t e under t h e commerce c l a u s e ( A r t . I , Sec. 8 , c l . 3 ) and under t h e p o s t a l power ( A r t . I , Sec. 8 , c 1 . ' 7 ) . As i n t e r p r e t e d by t h e United S t a t e s Supreme C o u r t , even though Congress' power t o l e g i s l a t e under t h e commerce and p o s t f l powers i s u n d i s p u t e d , n e v e r t h e l e s s t h e manner o f e x e r c i s i n g t h e s e cons t i t u t i o n a l powers may be s u b j e c t t o some l i m i t a t i o n s . # The r i g h t o f a s o v e r e i g n S t a t e t o l i m i t , r e g u l a t e and p r o h i b i t t h e l a b o r o f i t s minor c h i l d r e n i n employment p r e j u d i c i a l t o t h e i r l i f e , h e a l t h o r s a f e t y has n e v e r been d e n i e d . child labor. Nearly a l l o f t h e S t a t e s have d n d e r t a k e n t o r e g u l a t e However, i n t h e p r e s e n c e o f a g r e a t d i v e r s i t y o f c h i l d l a b o r s t a n d a r d s i n t h e d i f f e r e n t S t a t e s , t h e F e d e r a l Government u n d e r t o o k t o remedy t o some d e g r e e t h e l a c k o f u n i f o r m i t y and i n s u f f i c i e n c y i n S t a t e s t a n d a r d s f o r 0 child labor. The Congress o f t h e United S t a t e s , a f t e r much a g i t a t i o n on t h e s u b j e c t , e n a c t e d t h e F a i r Labor S t a n d a r d s Act which, i n p a r t , . p r o v i d e s t h a t no goods s h a l l be shipped o r deliv'ered i n commerce where such goods were t h e r e s u l t s o f o p p r e s s i v e c h i l d l a b o r employment. 2 9 U.S:C. 5 212(1970). upon t h e power o f Congress t o r e g u l a t e i n t e r s t a t e commerce. T h i s law i s based The n e t g e n e r a l e f f e c t o f t h e law p l a c e s r e s t r i c t i o n s upon i n t e r s t a t e *t r a f f i c i h t h e p r o d u c t s of c h i l d l a b o r . h r i o r F e d e r a l c h i l d l a b o r laws were d e c l a r e d u n c o n s t i t u t i o n a l ' on the grounds that Congress had exceeded the proper exercise of its powek to regulate interstate commerce, and had invaded powers reserved to the States. Hammer v. Dagenhart, 247 U.S. 251 (1918); Bailey, Collector of Internal Revenue v. Drexel Furnithre Co., 259 U.S. 20 (1922).The Dagenhart case represents an era when the supreme Court had a narrow view of commerce. Since that time, the whole concept of commerce has changed. Under the more recent decisions, the power of Congress is recognized to be broad enough to reach all phages of the vast operations of our national industrial system. Mandeville Island arm^ v. American Crystal Sugar Co., 334 U.'b;-2-19 (1948);'United states v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111 (1942); United States v. South-Easterri Underwriters Assn. 322 U.S. 533 (1944). Therefore, it would appear that Federal legislation could be proposed which would operate similarly to the child labor provision of the F.L.S.A. This law could have the effect of prohibiting the shipment into commerce any motion picture or photograph in which children'under a certain age have appeared in the nude or depicted in some other objectionable manner. In United States v. Darby, supra, the U.S. Supreme Court stated that "while manufacturn is not of itself .interstate commerce, the shipment of manufactured goods interstate is such commerce and the prohibition of such,shipment by Congress is indubitably a regulation of the commerce. The power to regulate commerce is the power 'to prescribe the rule by which commerce is governed."' $ 312 U.S. at lf3. The power of Cpngress over interstate commerce "is complete in itself, may be exercised to its utmost extent, and acknowledge no limita-' tion other than are prescribed in the Constitution." Ibid., - at 114. This power can neither be enlarged nor diminished by the exercise or non-exercise CRS -4 0 E. "Congress, o f S t a t e power." f o l l o w i n g i t s own c o n c e p t i o n o f p u b l i c p o l i c y c o n c e r n i n g t h e r e s t r i c t i o n s which'may a p p r o p r i a t e l y b e imposed on i n t e r s t a t e commerce, i s f r e e t o e x c l u d e from t h e coaunerce a r t i c l e s whose u s e i n t h e S t a t e f o r which t h e y a r e d e s t i n e d i t may c o n c e i v e t o b e i n j u r i o u s t o t h e p u b l i c I h e a l t h , m o r a l o r w e l f a r e , even though t h e S t a t e h a s n o t s o u g h t t o r e g u l a t e ' t h e i r use ." Ibid. I t h a s a l s o been e s t a b l i s h e d t h a t Congress may by a p p r o p r i a t e l e g i s l a t i o n r e g u l a t e i n t r a s t a t e a c t i v i t i e s where t h e y have a s u b s t a n t i a l e f f e c t o n i n t e r s t a t e commerce. Maryland v . W i r t z , 392 U.S. U n i t e d S t a t e s , 379 U.S. 241, 251-252 183 ( 1 9 6 8 ) . I n A t l a n t a Motel v. (1964), t h e Court s t a t e d t h a t i n t h o s e . . c a s e s where commerce i , s i n v o l v e d , "Congress i s c l o t h e d w i t h d i r e c t and p l e n a r y powers o f l e g i s l a t i o n o v e r t h e whole s u b j e c t " and t h e r e f o r e i t " h a s t h e power t o ' p a s s laws f o r r e g u l a t i n g t h e s u b j e c t s s p e c i f i e d i n e v e r y d e t a i l , and t h e c o n d u c t and t r a n s a c t i ' o n s o f i n d i v i d u a l s i n r e s p e c t t h e r e o f . " t C o n s e q u e n t l y , i t would a p p e a r t h a t l e g i s l a t i o n c o u l d a l s o b e proposed J t which would have t h e e f f e c t o f p r o h i b i t i n g t h e a c t i t s e l f ( u s e o f c h i l d r e n i n p r o d u c t i o n o f s e x u a l l y e x p l i c i t m o t i o n o r s t i l l ~ i c t u r e s )r e g a r d l e s s o f w h e t h e r I t h e m a t e r i a l w i l l e n t e r i n t o commerce inasmuch a s i t c a n b e e x p e c t e d t o " a f f e c t commerce." A s Mr. J u s t i c e C l a r k s t a t e d i n A t l a n t a Motel v. U n i t e d S t a t e s , s u p r a : [ T ] h e power,of Congress t o promote i n t e r s t a t e commerce a l s o i n c l u d e s t h e power t o r e g u l a t e t h e l o c a l i n c i d e n t s t h e r e o f , i n c l u d i n g l o c a l a c t i v i t i e s i n b o t h t h e S t a t e s o f o r i g i n and d e s t i n a t i o n , which might have a s u b s t a n t i a l and h a r m f u l e f f e c t upon t h a t commerce. 379 U.S. a t 258. See Maryland v . W i r t z , 392 U.S. 183 ( 1 9 6 8 ) ; D a n i e l v . P a u l , 395 U.S. 298 ( 1 9 ' 6 9 ) ; ~ a t z e n b a c h v . McClung, 379 U.'S. 2 9 4 1 9 6 4 ) : Paul S. Wallace, J r . L e g i s l a t i v e Attorney American Law D i v i s i o n March 1, 1977