PACE Act of 2017

Mr. Speaker, I thank the opponents and proponents of this legislation because they have said much the same thing.

H.R. 1761 is a bill that stands against everything we stand against. It is for protecting against child exploitation, and we all agree with that. We agree, as well, that the bill has existing mandatory minimums and the attempt of the proponent of this bill to ensure that the decision that occurred in Palomino would not occur again.

Some clarification has occurred, and that is that the bill, or the law, now, with H.R. 1761 explicitly prohibits the creation of a visual depiction or live transmission of a minor engaged in sexually explicit conduct. That is, of course, a meritorious and unanimously supported position. The mandatory minimums continue and also are added to, now, a number of other offenses. As have been indicated, those offenses can be upwards of 20 years, and they can be for a variety of offenses added under this bill.

So the bill is well intended, and the initial prohibition could draw support in a bipartisan manner, but the continued adding of offenses to mandatory minimums rather than language that would have left the sentencing to the discretion of the Federal court--which, by the way, many Federal judges have come to this Congress and to the Committee on the Judiciary to ask for and indicate the value of discretion as relates to their sentencing. This is not a death penalty case, so, clearly, the discretion of the court and the wisdom of the court could be utilized for the appropriate new offenses and the appropriate sentencing.

So while the bill is well intended, it is overbroad in scope and will punish the very people it indicates it is designed to protect: our children. H.R. 1761 would expand and modify the meaning of sexual exploitation of children, thereby granting new offenses that may be prosecuted under section 2251 of the Federal criminal code, which generally prohibits the production of child pornography.

As indicated, it works to fix the Fourth Circuit decision in Palomino, which reversed the defendant's conviction because the decision was that there was no proof of intent. The structure of the statute, however, would significantly be modified by H.R. 1761, separating section 2251(a) into five enumerated offenses, codified as 2251(a)(1) through (5). Based on the language in this bill, to criminalize the knowing consent of the visual depiction or live transmission of a minor engaged in sexually explicit conduct, a teenager sexting another teenager could be swept up under the statutory power of this new measure.

Research shows that 91 percent of teenagers, tweens, have access to the internet and/or a smartphone. Hence, given the rampant advancement in technology and, consequently, its usage among this demographic, we must exercise prudence when introducing legislation that is seemingly ignorant of the growing trend of communication among teenagers.

H.R. 1761 ignores the life-altering impact it would have on our juveniles who engage in otherwise stupid and immature behaviors and, in most cases, consensually explicit sexual conduct if we begin to criminalize such conduct. While this bill seeks to protect minors--and I congratulate the proponent for that intent--in the same vein, it drastically alters the penalty for minors who may face mandatory minimums in sentencing, and, therefore, it is flawed in its design and intended purpose.

Let me be very clear: Legislators have very good intentions, but we cannot stand on the floor and guarantee how it will be interpreted. We cannot guarantee that one teenager will not be caught up in this new legislation. Court interpretation, prosecutors' interpretation, all that will be subjected to mandatory minimums, which is in the underlying bill.

Mr. Speaker, I ask my colleagues to consider these concerns.

I heard the gentleman speak of his effort to ensure that the internet provider would have to show intent or have intentionally engaged.

Again, the interpretation of these bills are subject to interpretation, and the clearer we can be here on the floor of the House, the more we can be appropriate in its application.

My point is, in concluding, I hope we will ultimately have legislation that comes back to the floor of the House that we all may be able to join in and that the elements that do not impact and protect our teenagers will be eliminated and we can be assured that internet providers are protected as well.

Madam Speaker, I have an amendment at the desk.

Madam Speaker, I associate myself with the words of the ranking member, Mr. Conyers.

I look forward to strengthening these laws and, as well, working on legislation to continue to protect our children, our innocent children, from sexual abuse, sexual assault, and the devastation that it has on their lives.

So I rise to continue that theme and to indicate, as I said earlier, that some of the clarifications in the underlying bill are important, and important to clarify, and important to provide prohibitions that will be clear in possible further court interpretations. But I maintain that we cannot predict the court interpretations, and the better and clearer that we are to protect our children, I believe, is a route that we should take.

The bill would add new classes of offenses. But section 2251 does not provide for Romeo and Juliet exceptions; i.e., the penalties apply even when conduct is consensual and when the victim and offender are close in age. For example, a 19-year-old and a 17-year-old who videotaped themselves engaged in a sexual act, then emailed the video to their own email accounts, the 19-year-old would be subject to mandatory minimums. That is the basis of the amendment, the Jackson Lee amendment.

The Jackson Lee amendment is a Romeo and Juliet exception. The amendment is a reasonable approach to treatment of adolescent behavior that should not be left to prosecutors. The pervasiveness of personal technology, such as cell phones and tablets, have given rise to teenage sexting. Research has shown that teenage sexting is widespread, even among middle school-age youth.

Under section 2251, teenagers prosecuted for talking and sending messages, and then taking and sending messages, would be subject to mandatory prison sentences of at least 15 years and sex offender registration.

In light of the recent troubling statements by Attorney General Sessions, Congress should provide an alternative to existing mandatory penalties in sexting cases, particularly with juveniles. We cannot say that a juvenile will not be prosecuted federally. They could be, under this particular statute.

So this is a carve-out, a Romeo and Juliet carve-out, to ensure that it does not happen, to protect against the possibility of it happening.

A study conducted by Drexel University found that more than half of the undergraduate students who took part in an online survey said they had sexted when they were teenagers, and 30 percent said that they included photos in that message, meaning that they had sent sexual texts.

Therefore, I ask that my colleagues come together and support the Jackson Lee amendment for a Romeo and Juliet carve-out.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, let me quickly say that I respect the

gentleman, but I take great issue in calling a Member's amendment, or the analysis of that amendment, ridiculous, because it is not ridiculous. It is an extremely reasonable amendment. And unless he has some powers that I am not aware of, no one can predict when a prosecutor will determine that they will prosecute. We cannot. We pass criminal justice laws every day and cannot predict.

Whether or not it is based upon the Sessions memo, which as far as anyone who can read knows that we are going back to a stricter enforcement of everything criminal against everyone. That is clear.

The Jackson Lee amendment recognizes that not all sex offenses are the same. And currently, section 2251 is a one-size-fits-all sentencing scheme. It fits all, even a 19-year-old.

The Jackson Lee amendment would provide a better alternative. Punishment will be available involving offenses. When defendants are no more than 19 years old, they would have other alternatives. The judge would have discretion. That is simply what we are asking for.

Madam Speaker, I include in the Record an article entitled, ``Keep Mandatory Minimums Out of the Juvenile Justice System.'' This bill does not do that; and I also include an article entitled, ``Teenage Sexting is Not Child Porn.''

[June 16, 2014]

OP-ED: Keep Mandatory Minimums Out of the Juvenile Justice System

(By Lizzie Buchen)

Across the country, mandatory minimum sentences are falling

out of favor. From Sen. Rand Paul to Attorney General Eric

Holder, people from both ends of the political spectrum are

blaming these harsh and punitive sentences for driving our

skyrocketing incarceration rates and exacerbating racial

disparities in the criminal justice system. But in this era

of smart sentencing reform--particularly toward young

people--a disturbing piece of legislation is coasting through

the California legislature, threatening to wrench the state

in the opposite direction. Senate Bill 838, authored by state

Sen. Jim Beall (D-Santa Clara), would break new ground by

establishing the first mandatory minimum sentences in the

state's juvenile justice system.

The juvenile justice system was founded on the

understanding that young people who commit offenses are often

struggling in situations outside of their control, are highly

amenable to rehabilitation and have the potential to lead

productive and law-abiding lives. Mandatory minimum sentences

automatic sentences of incarceration or confinement, meted

out regardless of the facts of the case are completely at

odds with these foundational principles. They are determined

not by the youth's past circumstances or potential life

ahead, but by what he or she has done. The only result is

punishment, a sharp contrast to the rehabilitative ideals of

the juvenile justice system.

Mandatory minimum sentences are completely incompatible

with how juvenile court works. When a youth has committed an

offense, juvenile court judges tailor sanctions to best meet

a youth's unique needs for rehabilitation by weighing a

comprehensive set of factors, including the severity of the

crime, the statement of the victims, and the circumstances of

the youth's life--including mental health issues and

experience with abuse, homelessness and extreme poverty. The

judge then chooses from a wide range of community-based and

residential options, allowing him or her to tailor the

sanction to best treat the youth and protect the community.

In line with this focus on rehabilitation, the sentences are

indeterminate, with terms based on the youth's progress.

Proponents of mandatory minimum sentences, including

supporters of California's youth mandatory minimum bill,

claim that these sentences deter crime. But the evidence

tells us this is a dubious notion at best. Although this bill

would introduce the first mandatory minimum sentences in

California's juvenile justice system, such sentences have

been in place in the adult system for decades--and are widely

recognized as failures. A large and growing body of research

has found that mandatory minimum sentences have come at

enormous social, financial and human costs, with little

benefit to public safety. There is no evidence that these

sentences have a significant deterrent effect. If anything,

these harsh punishments are counterproductive, putting the

public at risk by disrupting families, impoverishing

communities of human capital, making it more difficult for

people to return to law-abiding society and diverting

precious public resources away from social services and

toward costly incarceration.

Madam Speaker, I ask my colleagues to support the Jackson Lee amendment.

Mr. Speaker, I rise to speak about my amendment to H.R. 1761, ``Protecting Against Child Exploitation Act.''

As Ranking Member of the House Judiciary Subcommittee on Crime, I offer this amendment to help make H.R. 1761 a better bill to achieve its intended purpose.

Though troubled by any sexually explicit activity that may exploit and otherwise, harm our children, I believe that H.R. 1761, the ``Protecting Against Child Exploitation Act,'' is deadly and counterproductive to ensuring protection of our youth population in our new technology era.

This bill will exacerbate overwhelming concerns with the unfair and unjust mandatory minimum sentencing that contributes to the over- criminalization of juveniles and mass incarceration generally.

Simply put, this bill will add to the already tragic realities of many juveniles. Rather than proceeding with the caution befitting an expansion of the mandatory sentencing penalty, H.R. 1761 is being rushed to the House Floor, without a single hearing and without the opportunity to consider amendments directly relevant to whether our system of criminalizing juveniles for sexting is fair, just, and sound policy.

Though presented as a proposal to protect children, H.R. 1761 excessively penalizes juveniles and creates life altering criminal charges when engaged in `sexting'.

Rather, it raises new constitutional concerns; and it does not address documented and systemic unfairness and racial disparity in the imposition of mandatory sentencing and its overbroad sweep of criminalizing juveniles.

My amendment fixes that problem. It creates an alternative punishment (not more than one year of imprisonment) under section 2251 for teenagers who participate in ``sexting'' and might otherwise be subject to mandatory minimum sentences of at least 15 years in prison.

The Jackson Lee is a thoughtful, narrowly-drawn provision that provides judges with a sensible sentencing option for teenagers no more than 19 years old who participate in sexting that may be applied in the judges' discretion, in appropriate cases.

The Jackson Lee amendment is a reasonable approach to treatment of adolescent behavior that should not be left to prosecutors. The pervasiveness of personal technology, such as cellphones and tablets, has given rise to teenage ``sexting.'' Research has shown that teenage sexting is widespread, even among middle school-aged youth. Under section 2251, teenagers prosecuted for taking and sending such messages would be subject to mandatory prison sentences of at least 15 years and sex offender registration. In light of the recent troubling statements made by Attorney General Sessions, Congress should provide an alternative to existing mandatory minimum penalties in ``sexting'' cases.

A study conducted by Drexel University found that more than half of the undergraduate students who took part in an online survey said that they sexted when they were teenagers. Thirty percent said they included photos in their messages and 61 percent did not know that sending nude photos via text could be considered child pornography. Another online survey published in 2008 found that almost 40 percent of teenagers between ages 13 and 19 had sent ``sext'' messages, almost 50 percent had received a sext message, and 20 percent posted nude or semi-nude content online.

The Jackson Lee amendment recognizes that not all sex offenses are the same. Currently, section 2251 employs a one-size-fits-all sentencing scheme. Under section 2251, a 19 year-old, who engages in ``sexting'' (sending or receiving a sexually explicit photo or video of a minor) with a willing, 17 year-old girlfriend or boyfriend, would be subject to the same mandatory minimum sentence as a 50 year-old man, who engages in the same conduct with a 17 year-old.

The Jackson Lee amendment would provide a better alternative. The alternative punishment would be available in prosecutions involving offenses under section 2251(a)(2) or 2251(a)(3), when the defendant is no more than 19 years old, the difference in age between the defendant and victim is no more than four years, and the sexually explicit conduct depicted in the photo or video was consensual. Judges would not be required to sentence teenagers pursuant to the alternative punishment.

Madam Speaker, I yield to the gentleman from Michigan (Mr. Conyers).

Madam Speaker, I yield back the balance of my time.

Madam Speaker, on that I demand the yeas and nays.

Mr. Speaker, I yield 1 minute to the gentleman from California (Mr. McCarthy).

Mr. Speaker, I yield myself such time as I may consume.

I am honored today to speak in support of my legislation, the Protecting Against Child Exploitation Act, which aims to close a court- created loophole, and as the title suggests, further protect our children from predators.

When I first arrived to Congress after almost 20 years of litigating constitutional law cases and drafting legislation for municipalities to control the proliferation of sexually oriented businesses, I was deeply concerned to learn that this particular loophole even existed in current Federal law, which essentially allows a child rapist to admit to sexually abusing a child and yet still evade punishment.

The background is important to reiterate. As my chairman stated moments ago, this comes from a 2015 case, United States v. Palomino- Coronado, where the U.S. Court of Appeals for the Fourth Circuit reversed the conviction of a child sex offender simply because the court determined the perpetrator lacked specific intent to record the disgusting images that were found on the offender's smartphone. This is despite the fact that the defendant admitted to sexually abusing the 7- year-old child from next door and memorializing the conduct.

In its opinion, the court decided the lack of purpose or specific intent was enough to overturn the conviction, even though the defendant himself took the photo of the heinous act and subsequently admitted to sexually abusing this child. This is absolutely in clear contradiction of our responsibility and this Congress' intention to protect America's children.

In Scripture, Romans 13 refers to the governing authorities as ``God's servants, agents of wrath to bring punishment on the wrongdoer.'' I, for one, believe we have a moral obligation, as any just government should, to defend the defenseless.

My legislation presents a simple fix and updates title 18 of the U.S. Code to ensure future defendants are not able to circumvent the law by simply claiming a lack of intent, especially after knowingly creating a visual depiction of a minor engaged in sexually conduct.

More specifically, my legislation amends section 2251 of title 18 to prohibit the production and transmission of a visual depiction of a real minor engaged in sexually explicit conduct.

Furthermore, it amends current law to include prohibiting the depiction of a minor assisting any person in engaging in a sexually explicit act.

Lastly, to clarify potential circumstances of misinterpretation of the statute and to ensure the statute is not used erroneously to prosecute internet services providers when they have not engaged in wrongdoing, my legislation emphasizes that to be criminally liable under section (a)(3), an internet service provider must have actual knowledge that the child pornography is on its server and that it must intentionally transmit that image or intentionally cause its transmission.

We also take the step of prohibiting any criminal or civil liability for internet service providers who are required to transmit child pornography to law enforcement in response to a legal process, such as a search warrant in child exploitation cases. Of course, we would never anticipate a prosecution of an internet service provider for merely responding to a legal process, but it is my hope that explicitly providing for this immunity in the statute will further enhance the relationship between internet service providers and law enforcement to work together to combat these predators.

In answer to the opposition that we have heard here, it is important to reiterate this legislation does not create new mandatory minimums. However, I would like to address the comments regarding the current law on mandatory minimum penalties under the production of child pornography statute.

There is simply no evidence that Federal prosecutors are abusing this statute. I think we should all recognize that producing child pornography is a horrific crime. It often means luring young children into acts that no one, man, woman, or child, should be forced to do.

It is not a photograph of a nude child. It is something far worse. Each photo is a crime scene. Such a horrific act by the perpetrator requires the maximum amount of legal deterrents.

While mandatory minimums have reached much scrutiny in the drug statutes, in this venue for this statute, there could be no doubt that the penalties that exist under current law are appropriate. Child sexual exploitation is vastly underreported. The number of images of child pornography keeps growing and the images are becoming more and more depraved. The harm is too great to these victims not to have significant penalties available to deter this conduct and punish the producers of child pornography.

Every time an image of child pornography is viewed, the victim gets revictimized. Once an image is on the internet, it is irretrievable and can continue to circulate forever. This permanent record of a child's sexual abuse can alter his or her life forever. Many victims of child pornography suffer from feelings of helplessness, fear, humiliation, and lack of control, given that their images are available for others to view in perpetuity.

These images are becoming more sadistic and violent, and the age of the average victim is becoming younger and younger. It is a horrifying fact that it is not uncommon for even toddlers and infants to now be subjects of these images.

It is also important that there is no confusion about one fact: The very creation of these images is repulsive, regardless of whether or not the abuse was done with a specific intent of creating an image or if the intent to memorialize this conduct was a secondary thought.

Consider the facts of the case that led to this bill. As was mentioned, an adult male had sexual relations with a 7-year-old girl who lived next door and decided to photograph it. That is the production of child pornography. There is no question about it. No one should be permitted to escape responsibility merely by asserting they did not have a specific intent to create the image before they abused the child. The act of taking a photo or making a video is enough to demonstrate intent.

Mr. Speaker, that is what this bill does. It is appropriate that we are doing all this on the day that we recognize as National Missing Children's

Day. I am going to urge all my colleagues to support the bill.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume to just say a couple of important points in rebuttal to what we have heard.

For one thing, there has been no evidence that the cases referenced by the gentlewoman involving conduct between minors are being prosecuted at the Federal level. I have not seen even one that has been cited. The point here is that prosecutorial discretion has been a sufficient buffer.

In committee, our colleagues on the other side have invoked stories of juvenile offenders being charged for consensual conduct and placed on sex offender registries unjustly; however, these are all cases that were prosecuted at the local level. Not one that has been mentioned has been a Federal case.

It is important to note that, for offenders under 18, the Federal Department of Justice policy on charging juveniles means that juvenile prosecutions very rarely occur, and only if no State court can assume jurisdiction. In fact, certification from the Attorney General himself is necessary to proceed against a juvenile.

Again, I know of no such case in which a juvenile has been prosecuted federally under any child pornography statute. So while we appreciate and understand the concerns about mandatory minimum sentencing and its abuse, particularly with the drug statutes, again, it is important to reiterate here, that is not the case with child pornography.

For that reason, Mr. Speaker, I would oppose these arguments and trust that my colleagues will see the wisdom in supporting this very important and timely legislation.

Mr. Speaker, I reserve the balance of my time.

Madam Speaker, the concerns stated today are misplaced. The child pornography statutes have never been the subject of abuse by Federal prosecutors, and there is no evidence that that would happen in the future. However, the abuse that is being allowed and that we must address today is that of our children, and that abuse is being allowed because of a loophole that was, sadly, created by a Federal court.

Today we have an opportunity to correct that wrong. We have an opportunity to do what we all acknowledge to be the right thing: to defend the most defenseless among us. It is, indeed, an honor for us to take this action on the week that commemorates National Missing Children's Week and here, even, on this day, National Missing Children's Day.

I urge all my colleagues to join me in supporting the Protecting Against Child Exploitation Act. We hope that everyone will do the right thing here today.

Madam Speaker, I yield back the balance of my time.

Madam Speaker, I rise in opposition to the amendment.

Madam Speaker, it is not only unnecessary, but it is fashioned in such a manner which may potentially create the type of loophole that we are looking to close.

Under current law, so-called Romeo and Juliet cases, such as those between 19- and 50-year-olds, could be prosecuted under any of the child pornography laws--possession, production, or distribution. That has always been the case.

However, I reiterate that we know of no such instance that has been brought under any of these Federal provisions under the circumstances covered by this amendment, which further supports the fact that Federal prosecutors do not appear to be bringing such cases. There is just simply no evidence that has been produced to suggest otherwise. For that reason, the amendment is completely unnecessary, and it is based upon no evidence at all.

On the contrary, the underlying bill is based upon a real case where a real 7-year-old girl was sexually abused and photographed by a real sexual predator.

Our colleagues on the other side have also continually referred to Attorney General Sessions' recent charging memoranda which suggests that under the policy in his memo prosecutors will suddenly be forced to aggressively prosecute 19-year-olds who are engaging in consensual sexual conduct under this statute. But that notion is preposterous and is also based on no evidence.

As an initial matter, the minority completely ignores the fact that a prosecutor makes an initial determination as to whether to commence or decline prosecution. And this is distinct from the subsequent decision of what charges should be brought, which would only occur if the decision to prosecute is made in the first place.

According to the U.S. attorneys' manual, in making the initial determination to commence a prosecution, a prosecutor must consider whether ``a substantial Federal interest would be served by the prosecution,'' and whether, ``in his or her judgment: One, the person is subject to effective prosecution in another jurisdiction; or, two, there exists an adequate noncriminal alternative to prosecution.''

The Sessions memo doesn't change any of that, and it is absurd to think that the memo will cause the Department of Justice to suddenly shift its prosecutions to aggressively go after Romeo and Juliet cases. This is especially ridiculous, as Attorney General Sessions had made clear from the outset, that the priorities of DOJ and this administration are to prosecute violent crimes and violent offenders.

I think that the minority just fundamentally misunderstands and mischaracterizes not only the Sessions memo but this legislation. For that reason, I urge all of my colleagues to oppose the Jackson Lee amendment.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I have tremendous respect for my colleagues on the other side, Mr. Conyers and Ms. Jackson Lee. I understand her amendment is heartfelt and has the proper motive and attention.

I would just suggest, again, that the risk of this amendment outweighs any potential benefit because it creates the kind of loopholes that we are trying here desperately to prevent.

Madam Speaker, I urge my colleagues to oppose the amendment, and I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume, and rise in opposition to this bill.

Mr. Speaker, this bill restructures section 2251 of title 18 of the United States Code as apparently requested by the unit at the Department of Justice that enforces the laws against child pornography.

H.R. 1761 is intended to address limitations in the prosecution of cases pursuant to section 2251, as identified by the Department.

While we all agree that no child pornography offense should go unpunished, we cannot overlook the consequences of mandatory minimum sentencing.

Section 2251(a) prohibits the use of a child to produce child pornography and related conduct, including overseas production and advertising child pornography.

Pursuant to this bill, two new offenses would be added to this section to prohibit the production of child pornography and the transmission of live depictions of a child engaged in sexually explicit conduct, such as live-streaming abuse online.

This measure would also modify the existing offense that prohibits having a minor assist in sexually explicit conduct for the purpose of producing or transmitting child pornography. As amended, this offense would prohibit

having a minor assist in sexually explicit conduct that violates each of the three newly enumerated production offenses, except the transportation of a minor for use in child pornography production.

In addition, it would amend the prohibition against the production of child pornography abroad to forbid the live transmission of child pornography produced abroad.

The jurisdictional requirement for each of the offenses enumerated in section 2251, except the production of child pornography abroad, would be codified in a separate subsection. Other portions of the bill would be modified to follow the restructure of the statute for consistency.

Unfortunately, current law sets forth a series of mandatory minimum terms of imprisonment for production of child pornography offenses. First-time offenses are punishable by mandatory imprisonment of at least 15 years; offenders with a prior conviction face mandatory imprisonment for at least 25 years; and offenders with two or more prior convictions must be sentenced to imprisonment of at least 35 years.

By modifying and expanding section 2251 to include several new ways in which to violate the prohibition against the production of child pornography, the bill would subject new classes of defendants to mandatory minimum sentences. Although the bill does not establish new mandatory minimum sentences, it would--in this way--expand the application of the existing mandatory minimums, which I oppose.

Mandatory minimums have been studied extensively and found to distort rational sentencing systems, discriminate against minorities, waste taxpayers' money, and violate common sense. Under mandatory minimum sentences, regardless of the nature and circumstances surrounding the offense, the role of the offender in the particular crime, and the history and characteristics of the offender, a judge must impose a sentence set by the legislature.

Even if everyone involved in a case--from the arresting officer, prosecutor, and judge to the victim--believes that the mandatory minimum would be an unjust sentence for a particular defendant in a case, it still must be imposed. Mandatory minimum sentences are the wrong way to determine punishment under this or any other statute.

During the Judiciary Committee's consideration of this bill, the committee rejected an amendment that would have eliminated the applicable mandatory minimums in the current statute but would still have allowed judges to sentence these offenders to lengthy sentences up to the existing statutory maximums.

Because those changes were not made, the bill continues to present problems with mandatory minimums.

Accordingly, Mr. Speaker, I must oppose this legislation, and I reserve the balance of my time.

Mr. Speaker, I now yield 5 minutes to the gentleman from Virginia (Mr. Scott).

Mr. Speaker, I yield 5 minutes to the gentlewoman from Texas (Ms. Jackson Lee).

Mr. Speaker, I yield an additional 1 minute to the gentlewoman from Texas.

Mr. Speaker, I am prepared to close, and I yield myself the balance of my time.

Mr. Speaker, the Members of the House cannot rely on prospective discretion to protect juveniles under this statute. We simply can't rely on it, participate in, given the new policy of the Attorney General. We are under a new regime here at the Federal level, and I can't depend on relying on the prosecutorial discretion to protect juveniles under this statute.

Mr. Speaker, I believe this bill is well intended, and I share my colleagues' desire to protect children from being victimized by their depiction in pornography. However, I also believe that we must address the serious problem presented by the bill, namely, that it would expand the application of the existing array of mandatory minimum sentences that the code provides for these offenses.

This aspect of H.R. 1761 directly conflicts with the growing bipartisan realization that mandatory minimums are unjust and unwise; this is so even for egregious offenses for which judges should be allowed to impose sentences--often severe and even beyond the minimums--based on the facts and circumstances of each case. I want to leave it up to the judges.

In considering legislation to better protect our children from the types of exploitation addressed by this bill, we must not ignore the sentencing implications of these revisions to the statute. In light of the bill's failure to address these serious concerns, I oppose H.R. 1761 and urge my colleagues to do likewise.

We should consider even stronger legislation that addresses all these concerns. We are not through with the subject matter by this bill coming before us today. There is more work to be done. I thank my colleagues for this very important discussion.

Madam Speaker, I yield back the balance of my time.

Madam Speaker, I thank the gentlewoman and congratulate her on this very important amendment.

This amendment creates alternative sentencing specifically for teenagers who participate in sexting and could, as a result of this bill and the application of current mandatory minimum sentences, be subject to mandatory sentences of at least 15 years. We should not, as she has already stated so well, leave it to prosecutors to determine whether teenagers take part in teenage behavior.

Mr. Speaker, I demand a recorded vote.

Mr. Speaker, pursuant to House Resolution 352, I call up the bill (H.R. 1761) to amend title 18, United States Code, to criminalize the knowing consent of the visual depiction, or live transmission, of a minor engaged in sexually explicit conduct, and for other purposes, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous materials on H.R. 1761.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, today I rise in strong support of H.R. 1761, the Protecting Against Child Exploitation Act of 2017, and urge my colleagues to do the same. I would like to note that May is National Missing Children's Month and today marks National Missing Children's Day. It is an honor to be on the floor here today as we continue our mission to protect these innocent victims.

We have made great strides toward ending child exploitation. However, gaps still exist in our laws that are contrary to Congress' goal of protecting children and criminalizing the production of images of child sexual abuse.

H.R. 1761 takes necessary steps to close an unfortunate loophole created by a Fourth Circuit decision in United States v. Palomino- Coronado--a case in which a defendant was able to walk free from Federal conviction despite photographic evidence he had engaged in the sexual abuse of a 7-year-old child.

On May 3, 2012, Prince George's County police officers responded to a home in Laurel, Maryland, based on a report of a missing 7-year-old child known as ``B.H.'' Officers found the child at the fence that separated her house and her neighbor's house. Upon investigation, it was uncovered that the neighbor, Anthony Palomino-Coronado, a 19-year- old male, had sexually molested the child.

At trial, the jury found the defendant guilty of knowingly employing, using, persuading, inducing, enticing, or coercing a minor in sexually explicit conduct, for the purpose of producing a visual depiction of that conduct--in other words, for the production of child pornography. The defendant appealed his conviction, alleging insufficient evidence.

Incredibly, the Fourth Circuit vacated the defendant's conviction, finding there was insufficient evidence the defendant's sexual abuse of the 7-year-old girl was ``for the purpose of'' creating an image of such conduct. The court found that, though the defendant engaged in sexual conduct with a child, ``the fact that only one image was produced militates against finding that his intent in doing so was to take a picture.''

Essentially, the court decided that the defendant had engaged in sexual conduct with a 7-year-old and taken a picture but had not engaged in sexual conduct with a 7-year-old to take a picture. To me, this is a preposterous, offensive result.

Under the Fourth Circuit's reasoning in Palomino, a defendant could admit to sexually abusing a child, and memorializing the conduct, but could argue that he should, nonetheless, escape Federal conviction because he lacked the requisite purpose or specific intent, prior to initiating the sexual abuse. Indeed, defense attorneys have begun to raise these Palomino defenses in other courts.

In response to Palomino, H.R. 1761 establishes additional bases of liability to the crime of production of child pornography. Specifically, the bill clarifies existing law by prohibiting the knowing production of, or knowingly causing the production of, a visual depiction of a real minor engaged in sexually explicit conduct.

Additionally, H.R. 1761 amends current law to prohibit the knowing transmission of, or knowingly causing the transmission of, a live visual depiction of a minor engaged in sexually explicit conduct while also criminalizing the knowing creation of the visual depiction of a minor engaged in sexually explicit conduct.

This language will serve to fix this judicially created loophole and ensure our court system will not have to spend time evaluating this meritless defense and will make certain predators such as this will not be able to escape Federal consequences.

Mr. Speaker, with this bill, Congress' intent is clear. We must continue to protect our children, the most vulnerable and innocent members of society. I commend the gentleman from Louisiana (Mr. Johnson), a member of the Judiciary Committee, for introducing this important legislation, and I urge my colleagues to support it.

Mr. Speaker, I reserve the balance of my time, and I ask unanimous consent that the gentleman from Louisiana (Mr. Johnson) may control that time.

Mr. Speaker, I rise in opposition to H.R. 1761.

I first want to point out that the case outlined by the chair of the Judiciary Committee that failed in Federal court could have been brought in State court and the defendant would have been subjected to extremely long, lengthy prison time for the heinous conduct that he had participated in.

Mr. Speaker, this legislation expands the use of preexisting mandatory minimum sentences. Although the bill does not technically create new mandatory minimums, it does expose additional defendants to preexisting mandatory minimum sentences of 15, 25, and 35 years.

While I support the underlying goal of punishing sex offenders--and they should be punished harshly--the use of mandatory minimums has time and time again been shown to be inappropriate.

This expansion of mandatory minimum sentences comes on the heels of the Attorney General's memorandum of May 12, 2017, which has been roundly criticized for directing all Federal prosecutors to pursue the most serious charges and maximum sentences, to include mandatory minimum sentences. This directive takes away from Federal prosecutors and judges the ability to individually assess the unique circumstances of each case, including any factors that may mitigate against imposing mandatory minimum sentences.

This law is particularly appalling because it would apply to people who I think we should all agree should not be subject to these long mandatory minimum sentences. I am talking about teenagers. Teenage sexting is widespread. Under this law, teenagers who engage in consensual conduct and send photos of a sexual nature to their friends or even to each other may be prosecuted and the judge must sentence them to at least 15 years in prison.

The law explicitly states that the mandatory minimums will apply equally to an attempt or a conspiracy. That means if a teenager attempts to obtain a photo of sexually explicit conduct by requesting it from his teenage girlfriend, the judge must sentence that teenager to prison for at least 15 years for making such an attempt. If a teenager goads a friend to ask a teenager to take a sexually explicit image of herself, just by asking, he could be guilty of conspiracy or attempt, and the judge must sentence that teenager to at least 15 years in prison.

Under the Federal code, the term ``sexually explicit conduct'' includes actual or simulated conduct. That means if a teenager asks another teenager for a photo simulating sex, even if the minor is fully clothed, that attempt would violate the law and the teenager must get a sentence of at least 15 years mandatory minimum for making that attempt.

This law does not allow the judge to consider whether or not the conduct may have been consensual between minors. This circumstance is irrelevant when the sentence is mandatory.

For decades now, the extensive research and evidence has demonstrated that mandatory minimum sentences fail to reduce crime, discriminate against minorities, waste the taxpayers' money, and often require a judge to impose sentences so bizarre that they violate common sense.

Unfortunately, there are already too many mandatory minimums in the Federal code. If we ever expect to do anything about the problem and actually address this major driver of mass incarceration, the first step we have to take is to stop passing new mandatory minimums or bills that expand existing mandatory minimums.

Mr. Speaker, we have to recognize that mandatory minimums in the code did not get there all at once. They got there one at a time, each part of a larger bill, which, on balance, might seem like a good idea. Therefore, the only way to stop passing new mandatory minimums is to stop passing bills that contain or broaden the application of mandatory minimums.

Giving lip service to the suggestion that you would have preferred that the mandatory minimum had not been in the bill and then voting for the bill anyway not only creates that new mandatory minimum, but it also guarantees that mandatory minimums will be included in the next crime bill.

Mr. Speaker, this bill would not be controversial if it did not contain mandatory minimums, but, unfortunately, it does. Therefore, I urge my colleagues to vote ``no'' on H.R. 1761.