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Child Pornography: Issues of Statutory Vagueness

NCJ Number
115809
Journal
Criminal Justice Journal Volume: 10 Issue: 2 Dated: (Spring 1988) Pages: 197-216
Author(s)
J DiGennaro
Date Published
1988
Length
10 pages
Annotation
The legislative response to the emergence of child pornography as a national problem has been to prohibit and criminalize the production, distribution, and possession for private use of such materials.
Abstract
An examination of case law, particularly Title 18, Sections 2251 and 2252, as applied to the possession of child pornography for private use, highlights constitutional issues of applying broad statutory definitions of child pornography to mandates regarding the specificity of search warrants to seize such materials. The articulated legislative purpose behind Federal law is to protect children from the emotional and psychological harm caused by their involvement in pornography -- an interest that has removed it from first amendment protections. However, the broad statutory definition of child pornography and the lack of a well-defined standard for the protection of possession alone have left a gray area with respect to police authority to seize child pornography and raise questions about police discretion in developing affidavits for search warrants involving suspected child pornography. Yet, warrants for search and seizure of materials protected under the first amendment have been held by the U.S. Supreme Court to entail special constraints and higher procedural standards than normal. The issuance of a warrant lacking the standard of specificity required by the first and fourth amendments will impermissibly vest searching officers with discretion to determine which material meets warrant requirements. The issue of whether a warrant to seize child pornography that is described only in generic terms is sufficiently specific is to be decided by the U.S. Supreme Court in United States vs. Wiegnand. 108 footnotes.