40.6 What does that "made before July 3, 1995" sticker mean?
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This article is from the Sex Movies FAQ, by director@gti.net (The Director) with numerous contributions by others.
40.6 What does that "made before July 3, 1995" sticker mean?
N.P. Trist tell me that it may very well mean the end of the adult
video industry.
Ostensibly to fix a loophole in the laws which forbid child
pornography, Congress passed the Child Protection and Obscenity
Enforcement Act of 1988. The Meese Commission had noted that so
many legal-age performers looked under-age that it was impossible
to tell if a performer was legal or not by viewing the videotape.
And if the feds got a search warrant for the producer's office,
there would be little or no records of the performer, who may have
already left town. Thus, child pornography could, at least
hypothetically, be created with impunity.
The Act has two primary components.
First, producers of depictions of actual sexual conduct must
maintain records on the performers' age, identity and other stage
names. These recordkeeping requirements are quite onerous: every
performer, every previously used alias, specific types of
identifying documents, etc. The government has even gone so far as
to mandate the indexing system to be used.
Second, all materials depicting actual sexual conduct must have a
label indicating certain information, most notably the name of the
custodian of records and the street address at which the records
are kept. Depictions of actual sexual conduct shot before July 3,
1995, or depictions of wholly simulated sexual conduct (such as
fetish or truly softcore tapes) are exempt from the requirements,
but should carry a label making that clear.
By themselves, these regulations -- while intrusive, burdensome and
expensive -- would be tolerable. They are not, after all, any more
or less ludicrous than the thousands of dense regulations with
which businesses of every stripe must comply.
Except that failing to comply with these regulations is a Felony.
If Fantastic Pictures fails to obtain the proper age records from
the senior citizens in its next "Sugar Mommies" release, the
responsible party may be sentenced to up to two years in prison for
a first offense.
Creating kiddie porn is not the crime; failing to comply with the
recordkeeping and labelling requirements is the crime.
The adult video industry does not seem to be blessed with a
plethora of highly-organized, detail-obsessive clerks and
paralegals. Clyde DeWitt spends part of his January AVN column
detailing any number of violations which have recently crossed his
desk.
And, as we all know, the Department of Justice is not going to be
lax in its enforcement, or allow grace periods, or give fair
warnings. Industry attorneys had to pull teeth just to get DOJ to
stipulate the law's effective date!
What all of the above means is that prosecutors have a new weapon
in their efforts to shut down law-abiding pornographers. One slip
in recordkeeping or labelling (no matter how trivial) can lead to
a bankrupting criminal suit and the threat of jail.
The initial challenge to the law has been lost. The U.S. Court of
Appeals for the District of Columbia ruled that the law passes
initial constitutional muster. American Library Assoc. v. Reno, 33
F.3d 78 (D.C. Cir. 1994).
The next step in combatting this law is to question its
constitutionality as applied -- which means that some poor shmuck
will have to be the first person charged with violating it.
I don't envy that trend setter.
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