Mr. SCHIFF. Mr. Speaker, I thank the gentleman for yielding me this time.
Mr. Speaker, I rise in support of the bill, and I want to commend the gentleman from Wisconsin (Mr. Sensenbrenner), the chairman of the committee, and the gentleman from Texas (Mr. Smith), the chairman of the subcommittee, for their work on this issue.
In the Ashcroft decision, the Supreme Court struck down the existing child pornography laws on the basis that they, in addition to prohibiting child pornography that was made by using, by molesting real children, that it also prohibited the use of adults who looked youthful looking, looked like children, and also prohibited virtual pornography, virtual child pornography produced using computers and computer graphics. But effectively, by striking down this law and by stating that only real child pornography could be prosecuted, the court struck the heart out of efforts to prosecute the real thing.
Computer technology has advanced to the point now where it is simply not possible for the government to meet a burden of demonstrating whether images were created using computer technology or the images are real. So the committee and the subcommittee worked together to try to address the concerns that the court raised and, at the same time, restore the ability of prosecutors to bring these cases against those who would victimize and molest children to produce child pornography.
In the Ashcroft decision, it recognized this dilemma, this problem, the need to go after these cases and yet the need to draft the law narrowly, and the court specifically said, we leave open, we leave open the question of whether there could be an affirmative defense; in other words, whether the burden could be shifted on this particular element to the defense to demonstrate that they only used adult actors who looked like children or they only used computer technology. That question was left open.
That is a difficult constitutional question, but if we are to restore the prosecution's ability to prosecute child pornography using real children, we must embrace this affirmative defense as the method to do so. And the law is very narrowly crafted. It prohibits the use, the sales, the pandering of child pornography that is virtually indistinguishable from real, that is generated by computers, but virtually indistinguishable from real, and then it allows the defense to affirmatively defend by saying, no, this was solely developed using computers, or, no, this was developed only by using youthful-looking adults, facts which are much more likely to be in the sole possession of the defense than in the possession of the prosecution.
So what we have is a bill that restores the prosecution's ability to bring these cases, that frames it as narrowly as possible to survive constitutional scrutiny, that indeed makes use of the vehicle the Supreme Court itself identified, that of an affirmative defense.
Will this statute survive against scrutiny by the Supreme Court? I believe it will. It will be a tough decision, but the fact of the matter is, in the absence of this legislative action, we will simply be incapable of prosecuting child pornography. I urge Members to support the bill.