[House Report 111-549]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-549
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PREVENTION OF INTERSTATE COMMERCE IN ANIMAL CRUSH VIDEOS ACT OF 2010
_______
July 19, 2010.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 5566]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 5566) to amend title 18, United States Code, to prohibit
interstate commerce in animal crush videos, and for other
purposes, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 6
Committee Consideration.......................................... 6
Vote of the Committee............................................ 6
Committee Oversight Findings..................................... 7
New Budget Authority and Tax Expenditures........................ 7
Congressional Budget Office Cost Estimate........................ 7
Performance Goals and Objectives................................. 8
Constitutional Authority Statement............................... 8
Advisory on Earmarks............................................. 9
Section-by-Section Analysis...................................... 9
Changes in Existing Law Made by the Bill, as Reported............ 10
Purpose and Summary
Our Nation has long recognized a compelling government
interest in the humane treatment of animals. All fifty States
and the District of Columbia have enacted statutes that make it
a crime to inflict cruelty on animals. Congress has enacted
similar laws to require the humane care and treatment of
animals. The torture and abuse of animals sometimes marks the
beginning of a pattern of abuse that culminates in acts of
violence towards fellow human beings. Should society become
desensitized to the suffering of animals, it may also lose the
ability to empathize with the suffering of human beings.
As a general principle, it is well settled that criminals
should not be allowed to profit from their crimes. To this end,
a decade ago, Congress overwhelmingly passed legislation to
combat a growing interstate market in so-called ``crush
videos''--visual depictions of animals being slowly tortured to
death for the sexual pleasure of the viewer. The statute,
codified in 18 U.S.C. Sec. 48, was intended to supplement
existing State cruelty laws. After Congress enacted this
provision into law, the commercial market for crush videos
effectively dried up, until the Supreme Court declared the
statute unconstitutional on First Amendment grounds.\1\ In the
wake of this ruling, a robust interstate market for these
heinous videos has been reestablished.
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\1\U.S. v. Stevens, 130 S.Ct. 1577 (2010).
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H.R. 5566, the Prevention of Interstate Commerce in Animal
Crush Videos Act of 2010, amends 18 U.S.C. Sec. 48 and closes
the gap in the enforcement of State and Federal animal cruelty
laws left open by the Supreme Court's decision. Although the
Court declared the current statute to be substantially
overbroad as written, this bill is narrowly drafted to prohibit
only the sale or distribution, in interstate commerce and for
commercial advantage or private financial gain, of obscene
visual depictions of specific acts of animal cruelty, and only
where the depicted act violates a State or Federal law
prohibiting intentional cruelty to animals.
Background and Need for the Legislation
THE 1999 DEPICTION OF ANIMAL CRUELTY STATUTE
In 1999, at a hearing before this Committee's Subcommittee
on Crime, a California State prosecutor and a police officer
testified about the growing interstate market for ``crush
videos.''\2\ Crush videos depict small animals--including mice,
hamsters, rabbits, cats, and dogs--being slowly crushed to
death. These videos are specifically created, marketed, and
sold to those who have a particular sexual fetish and therefore
find the animal torture sexually appealing, exciting, and
arousing. Many crush videos feature women inflicting
choreographed animal torture with their bare feet or while
wearing high heeled shoes, and the producers of these videos
sometimes ensure that the animal suffers over an extended
period of time in order to create a longer video. In some, a
woman can be heard talking to the animals in a sexual manner;
in most, the cries and squeals of the animals, obviously in
great pain, can also be heard. At the time of the 1999 hearing,
thousands of crush videos were readily available for purchase
over the Internet, and were almost exclusively distributed for
sale via the Internet and other instrumentalities of interstate
and foreign commerce. Many Internet sites openly offered crush
videos for sale. Some even advertised a willingness to create
made-to-order crush videos featuring the animals and methods of
torture of the customer's choice.
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\2\Punishing Depictions of Animal Cruelty and the Federal Prisoner
Health Care Co-Payment Act of 1999 Before the Subcomm. on Crime of the
H. Comm. on the Judiciary, 106th Cong. 40-48 (1999) (statement of Tom
Connors, Deputy District Attorney, Ventura County District Attorney's
Office).
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The witnesses testified further that these videos were
produced in a way that thwarted law enforcement agencies'
efforts to prosecute the individuals who committed the animal
torture. The acts depicted in the crush videos clearly
constituted animal cruelty. However, because the identities of
the animal torturers and the location and date of the filmed
animal cruelty were either obscured or unknown, prosecutors
were unable to prove the State's jurisdiction over the criminal
acts, and were thus powerless to enforce longstanding animal
cruelty laws.
Recognizing its primary authority to regulate interstate
commerce, and society's desire to ensure that animals are
treated humanely, Congress enacted section 18 U.S.C. Sec. 48,
which made it a crime to knowingly create, sell, or possess a
depiction of animal cruelty with the intention of placing that
depiction of animal cruelty in interstate or foreign commerce
for commercial gain. The term ``depiction of animal cruelty''
was defined as
any visual or auditory depiction, including any
photograph, motion-picture film, video recording,
electronic image, or sound recording of conduct in
which a living animal is intentionally maimed,
mutilated, tortured, wounded, or killed, if such
conduct is illegal under Federal law or the law of the
State in which the creation, sale, or possession takes
place, regardless of whether the maiming, mutilation,
torture, wounding, or killing took place in the
State.\3\
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\3\18 U.S.C. Sec. 48(c)(1) (2010), invalidated by U.S. v. Stevens,
supra note 1.
Shortly after the statute was passed, the market for crush
videos dried up and, by 2007, the sponsors of the law declared
the crush video industry ``dead.''\4\
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\4\Press Release, Rep. Elton W. Gallegly, ``Beyond Cruelty,'' (Dec.
16, 2007).
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UNITED STATES V. STEVENS INVALIDATES SECTION 48
In 2005, law enforcement authorities arrested Pennsylvania
resident Robert Stevens and charged him with three counts of
violating section 48. Mr. Stevens sold, across State lines,
videos featuring gruesome dogfights and dogs mauling domestic
and wild pigs. A jury convicted Mr. Stevens on all three
counts, and he was sentenced to 37 months in prison.
Thereafter, he appealed to the United States Court of Appeals
for the Third Circuit, which overturned his conviction, ruling
the law unconstitutional. The United States petitioned the
Supreme Court to grant certiorari, which it did, and oral
argument in United States v. Stevens was heard on October 6,
2009.\5\
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\5\U.S. v. Stevens, cert. granted, 129 S.Ct. 1984 (2009).
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On April 20, 2010, the Supreme Court affirmed the circuit
court, striking down 18 U.S.C. Sec. 48 as unconstitutional.\6\
In an 8-1 opinion authored by Chief Justice Roberts, the Court
declined to recognize depictions of animal cruelty as a
category of speech outside the scope of First Amendment
protection. Although the Court acknowledged a long history of
laws prohibiting animal cruelty in the United States, the Chief
Justice distinguished between the acts of animal cruelty
prohibited by such statutes and the depictions of animal
cruelty banned by section 48.
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\6\U.S. v. Stevens, 130 S.Ct. 1577 (2010).
---------------------------------------------------------------------------
Turning to a traditional First Amendment analysis, the
Court rejected arguments made by the United States that section
48 should be read narrowly and construed to be limited to
depictions of actual animal cruelty. Instead, the Court focused
on hypothetical applications of the law to acts that were not
necessarily cruel or in violation of State or Federal animal
cruelty laws. Further, the Court was unwilling to find that the
statute was sufficiently narrowed by a statutory exemption for
depictions with ``serious religious, political, scientific,
educational, journalistic, historical or artistic value.''\7\
Finding that section 48 reached a significant amount of
constitutionally protected speech, the Court struck down the
law as unconstitutionally overbroad. Chief Justice Roberts
noted explicitly that the decision did not reach the issue
whether a statute limited to crush videos or other depictions
of extreme animal cruelty would be constitutional.
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\7\Id. at 1590-1591.
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In his dissenting opinion, Justice Alito disagreed with the
Court's decision to consider a facial challenge to section 48,
and stated that the case should have been remanded to determine
if the statute was unconstitutional only as applied to the
facts of Mr. Stevens's case. He also disagreed with the
majority's overbreadth analysis, concluding instead that a
narrower reading of the law was proper and would have saved it
under the First Amendment. Justice Alito noted that the
underlying criminal animal cruelty was undertaken for the sole
purpose of creating and selling crush videos, and that the
clandestine nature of the crimes frustrated law enforcement
efforts to bring the perpetrators to justice. Lastly, Justice
Alito stated that both the States and the Federal Government
have a compelling interest in preventing the torture depicted
in crush videos and in ensuring that criminals do not profit
from their crimes.
EFFECTS OF UNITED STATES V. STEVENS ON FUTURE LEGISLATION
On May 26, 2010, the Committee's Subcommittee on Crime,
Terrorism, and Homeland Security received testimony from
constitutional scholars and practitioners as to the meaning of
the Court's opinion in Stevens and the implications it holds
for future legislation on crush videos. All of the witnesses
generally agreed that the Court was likely to be receptive to a
law regulating the interstate sale of crush videos if the law
were narrowly and precisely written.\8\ Indeed, one witness
noted that a majority of parties who filed amicus curiae briefs
in support of Mr. Stevens agreed that a law prohibiting crush
videos would pass constitutional muster.\9\ Such a would be a
narrower prohibition against recordings depicting acts of
animal cruelty that were themselves in violation of an
underlying criminal statute.
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\8\United States v. Stevens: The Supreme Court's Decision
Invalidating the Crush Video Statute, Before the Subcomm. on Crime,
Terrorism, and Homeland Security of the H. Judiciary Comm., 111th Cong.
(2010) (hereinafter ``Subcommittee Hearing'') (prepared testimony of J.
Scott Ballenger, Partner at Latham & Watkins, at 3; prepared testimony
of Professor Stephen Vladeck, American University Washington College of
Law, at 3; prepared testimony of Professor Nathaniel Persily, Columbia
Law School, at 5).
\9\Subcommittee Hearing, supra note 8 (prepared testimony of J.
Scott Ballenger, at 10 (citing Brief of Amici Curiae Association of
American Publishers, Inc., et al. Supporting Respondent, at 17, United
States v. Stevens, 130 S. Ct. 1577 (2010) (No. 08-769) (``Had Congress
sought to proscribe only `crush videos,' it could have done so, and
this would be a much different case.''); Brief Amici Curiae of The
Reporters Committee for Freedom of the Press and Thirteen News Media
Organizations in Support of Respondent, at 22, United States v.
Stevens, 130 S. Ct. 1577 (2010) (No. 08-769) (``Congress could have
regulated legally obscene crush videos in a manner that did not
threaten news reporting and other high-value speech.''); Brief of
Amicus Curiae National Rifle Association of America, Inc. in Support of
Respondent, at 34-35, United States v. Stevens, 130 S. Ct. 1577 (2010)
(No. 08-769) (``Congress could have drafted a statute that more
precisely aimed at its objectives. For example, Congress could have
defined and criminalized crush videos.'').
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The witnesses also agreed that crush videos could be
constitutionally prohibited in line with the obscenity doctrine
formulated by the Supreme Court in Miller v. California.\10\
Miller and its progeny firmly established the term ``obscene''
as a legal term of art.\11\ The witnesses concurred that
Congress can ban interstate and foreign commerce in depictions
of acts of illegal animal cruelty that appeal to the ``prurient
interest,'' are ``patently offensive,'' and ``lack serious
literary, artistic, political or scientific value.''\12\
Although obscenity may generally apply to materials that depict
or describe a more obviously sexual act, case law shows that
obscenity can also cover unusual deviant acts.\13\ Lastly,
witnesses noted that the Court left open the possibility that
Congress could permissibly regulate crush videos because they
constitute speech integral to criminal conduct.\14\
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\10\Miller v. California, 413 U.S. 15 (1973).
\11\See, e.g., Hamling v. United States, 418 U.S. 87, 105, 113
(1974); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 505 n.13
(1985).
\12\Miller, supra note 10 (the first two elements are to be
considered by an average person applying contemporary community
standards, while the third applies national standards).
\13\Subcommittee Hearing, supra note 8 (prepared testimony of J.
Scott Ballenger, 12-13 (referring to prosecution of individual selling
images depicting, inter alia, sadomasochistic torture, United States v.
Thomas, 74 F.3d 701 (6th Cir. 1996)). ``Sadomasochism'' is defined as
``[t]he combination of sadism and masochism, in particular the deriving
of pleasure, especially sexual gratification, from inflicting or
submitting to physical or emotional abuse.'' American Heritage
Dictionary of the English Language (Fourth Ed., 2010).
\14\Subcommittee Hearing, supra note 8 (prepared testimony of Prof.
Nathaniel Persily, 6-7 (citing Giboney v. Empire Storage and Ice Co.,
336 U.S. 490 (1949) and noting its potential application: ``the
videotaping of such acts is integral to the criminal acts themselves.
In other words, the speech accompanying the conduct is part of the same
criminal endeavor: namely, the torture of animals in order to create
videos for commercial sale and distribution.'')).
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PRACTICAL EFFECTS OF THE INVALIDATION OF SECTION 48
The Committee has learned that a robust market for crush
videos reemerged on the Internet in light of the Supreme
Court's invalidation of section 48.\15\ As was the case when
Congress first attempted to address the problem of trade in
crush videos, these videos are again being created for sale to
those with a sexual fetish and for whom depictions of animal
cruelty are arousing. For instance, one website identified in a
2009 investigation, www.sexycrush.com, openly offered mice
crush videos for sale. One video, selling for $40, shows mice
and pinkies--newborn mice whose eyes are still fused shut--
strapped inside a high-heeled stiletto shoe with a rubber band.
A woman then dons the shoes and proceeds to stomp down on the
mice and pinkies while making sexual noises. The animals are
seen struggling to get away as they are repeatedly crushed by
the woman's foot, after which some of the mice are further
crushed on the floor by the woman now wearing only stockings.
Another website, www.crushheaven.com, allowed people to custom
order crush videos and boasted that ``you can choose model and
victim for your custom video. please tell us the detail of
whats [sic] you want. our custom video costs $200 for 30 min/
$300 for 60 min with one model.'' This website also offered
over 100 non-custom videos for sale, ranging between $20 and
$100, featuring the torture of various animals, including
rabbits, hamsters, mice and pinkies, tortoises, quail, chicken,
ducks, frogs, snakes, and cats.
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\15\The Humane Society of the United States, Animal Crush Videos
Research & Investigation: Descriptive Catalogue of DVD Folders Content
(May 22, 2009) (report submitted to the House Judiciary Committee,
Subcommittee on Crime, Terrorism, and Homeland Security).
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Hearings
The Committee's Subcommittee on Crime, Terrorism, and
Homeland Security held a hearing on the Supreme Court's opinion
in United States v. Stevens on May 26, 2010. Testimony was
received from Congressman Elton Gallegly; Congressman Gary
Peters; Professor Stephen I. Vladeck, American University
Washington College of Law; Professor Nathaniel Persily,
Columbia Law School; and J. Scott Ballenger, Partner at Latham
& Watkins.
Committee Consideration
On July 23, 2010, the Committee met in open session and
ordered the bill H.R. 1110 favorably reported, without
amendment, by a vote of 23-0, a quorum being present.
Vote of the Committee
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following vote was taken during Committee consideration of H.R.
5566:
Motion to favorably report the bill. Approved 23-0.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley.....................................................
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Mr. Gutierrez...................................................
Ms. Baldwin..................................................... X
Mr. Gonzalez....................................................
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Maffei......................................................
Mr. Polis....................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 23 0
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 5566, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 1, 2010.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5566, the
Prevention of Interstate Commerce in Animal Crush Videos Act of
2010.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 5566--Prevention of Interstate Commerce in Animal Crush Videos Act
of 2010.
CBO estimates that implementing H.R. 5566 would have no
significant cost to the Federal Government. The legislation
could affect direct spending and revenues, so pay-as-you-go
procedures would apply, but we estimate that any such effects
would not be significant.
H.R. 5566 would modify the current laws that prohibit the
sale of certain videos or other items that depict animal
cruelty. Thus, the government might be able to pursue cases
that it otherwise would not be able to prosecute. CBO expects
that H.R. 5566 would apply to a relatively small number of
offenders, however, so any increase in costs for law
enforcement, court proceedings, or prison operations would not
be significant. Any such costs would be subject to the
availability of appropriated funds.
Because those prosecuted and convicted under H.R. 5566
could be subject to criminal fines, the Federal Government
might collect additional amounts if the legislation is enacted.
Criminal fines are recorded as revenues, deposited in the Crime
Victims Fund, and later spent. CBO estimates that any
additional revenues and direct spending would not be
significant because of the small number of cases likely to be
affected.
H.R. 5566 contains no intergovernmental mandates as defined
in the Unfunded Mandate Reform Act (UMRA) and would impose no
costs on State, local, or tribal governments. By prohibiting
the sale or distribution of photographs, videos, or other
electronic images that depict individuals conducting illegal
acts of cruelty against animals, the bill would impose a
private-sector mandate as defined in UMRA on entities involved
in such sales. Creating, owning, or possessing videos depicting
animal cruelty with the intent to sell them was prohibited by
law until April 2010 when the Supreme Court overturned the 1999
law banning those activities. Before the ban was enacted in
1999, an investigation by the Humane Society of the United
States found that such videos sold for up to $400 each on the
Internet. Because of the small volume of commercial sales that
would be affected by this legislation, CBO estimates that the
aggregate cost of the mandate would fall below the annual
threshold established in UMRA for the private sector ($141
million, in 2010, adjusted annually for inflation).
The CBO staff contacts for this estimate are Mark Grabowicz
(for Federal costs) and Marin Randall (for the private-sector
impact). The estimate was approved by Peter H. Fontaine,
Assistant Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
5566 will prohibit interstate commerce in animal crush videos.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 3 of the
Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5566 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9 of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title. Section 1 sets forth the short title
of the bill as the ``Prevention of Interstate Commerce in
Animal Crush Videos Act of 2010.''
Sec.2. Findings. Section 2 of the bill sets forth several
congressional findings.
The first finding expresses Congress's recognition that
preventing animal cruelty is a compelling government interest
that is shared by every State and the Federal Government. In
addition to protecting animals from suffering due to cruel
acts, evidence shows that those who abuse animals are more
likely to abuse humans, and society as a whole suffers from
moral degradation when animals are cruelly treated. Therefore,
protecting animals also protects all of society.
The second finding recognizes that every State in the
Nation has existing laws that prohibit intentional animal
cruelty. These laws describe prohibited animal cruelty in
different ways. Some, for example, prohibit ``cruel
mistreatment,'' while others prohibit ``torture.'' However,
regardless of how these laws are written, they all criminalize
the unjustifiable intentional crushing, burning, drowning,
suffocating, or impaling of animals.
The third finding concludes that existing laws prohibiting
animal cruelty are ineffective at punishing criminal animal
abusers who are engaged in the creation of crush videos. Crush
videos are typically created in a way that completely obscures
the identity of the person torturing an animal. Similarly, the
location and date of the torture are not indicated anywhere in
the video. Prosecutors are therefore unable to prove the
necessary facts to establish jurisdiction over the crime.
The fourth finding recognizes the intrinsic link between
the creation of and market for crush videos. Because crush
videos by their nature depict acts of actual animal cruelty,
these acts constitute a necessary step in the creation of the
videos and the establishment of a commercial market for their
trade.
The fifth finding recognizes that the commercial market for
crush videos provides an economic incentive for individuals to
carry out acts of illegal animal cruelty and is therefore an
integral part of such cruelty. The prevalence of a custom-order
option for crush videos highlights this fact. Crush videos
feature choreographed torture, which necessarily means that the
creators of the video and the animal torturer jointly engaged
in ``premeditated'' animal cruelty--this is in stark contrast
to a scenario where an illegal act is coincidentally recorded,
e.g., surveillance cameras recording a robbery.
The sixth finding acknowledges that the United States has
long prohibited the sale of obscene materials in interstate
commerce.
The seventh finding recognizes that animal crush videos
appeal to those who find the depicted animal cruelty to be
sexually arousing, and that such videos are patently offensive
and lack any serious literary, artistic, political, or
scientific value.
Section 3. Animal Crush Videos. Section 3 of the bill
amends section 48 of title 18, United States Code, to narrowly
and explicitly prohibit interstate and foreign commerce in
crush videos. The prohibition is written so as to ensure that
only a narrow category of obscene speech is affected by the
amendment to section 48, thus carefully addressing the
overbreadth concerns that form the basis of the Supreme Court's
decision in United States v. Stevens.
To successfully prosecute an alleged violation of new
section 48, the government must prove that the defendant (1)
knowingly and (2) for the purpose of commercial advantage or
private financial gain (3) sold or offered to sell or
distributed or offered to distribute (4) an animal crush video
(5) in interstate or foreign commerce.
The use of the word ``knowingly'' requires that the
defendant voluntarily and intentionally sold or offered to
sell, or distributed or offered to distribute, the animal crush
video and did not do so because of mistake or accident. The
sale or distribution, or offer to sell or distribute, must be
undertaken with the intent to receive a commercial advantage or
private financial gain; however, the sale, distribution, or
offer of either need not result in an actual payment or profit
in order to satisfy the element. ``Sell'' encompasses the
common general understanding of the term, and ``distribute''
applies to any means whereby an animal crush video is
transferred from one person or place to another person or
place, and includes Internet transmissions. The sale,
distribution, or offer of either must occur in interstate or
foreign commerce.
The term ``animal crush video'' is defined explicitly as
any obscene photograph, motion-picture film, video recording,
or electronic image that shows actual, not simulated,
intentional crushing, burning, drowning, suffocating, or
impaling of one or more living animals in a manner that would
violate either a Federal animal cruelty law or State animal
cruelty law where the photograph, movie, video, or electronic
image was created, sold, distributed, or offered for sale or
distribution.
The depiction must also appeal to a prurient interest, and
be patently offensive when taken as a whole and applying
contemporary community standards. It must also, when taken as a
whole, lack serious literary, artistic, political, or
scientific value. These requirements serve to further
distinguish the sale or distribution or of a crush video from
legitimate, legal expression.
This section also explicitly states that the prohibition
does not apply to visual depictions of veterinary or
agricultural husbandry practices or depictions of bona fide
hunting, trapping, or fishing, even though the plain sweep of
the statute does not cover these activities.
In sum, this section sufficiently addresses the resurgence
of the crush video market while ensuring that the prohibition
is a constitutional use of congressional powers.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
PART I--CRIMES
* * * * * * *
CHAPTER 3--ANIMALS, BIRDS, FISH, AND PLANTS
Sec.
41. Hunting, fishing, trapping; disturbance or injury on wildlife
refuges.
* * * * * * *
[48. Depiction of animal cruelty.]
48. Animal crush videos.
* * * * * * *
[Sec. 48. Depiction of animal cruelty
[(a) Creation, Sale, or Possession.--Whoever knowingly
creates, sells, or possesses a depiction of animal cruelty with
the intention of placing that depiction in interstate or
foreign commerce for commercial gain, shall be fined under this
title or imprisoned not more than 5 years, or both.
[(b) Exception.--Subsection (a) does not apply to any
depiction that has serious religious, political, scientific,
educational, journalistic, historical, or artistic value.
[(c) Definitions.--In this section--
[(1) the term ``depiction of animal cruelty'' means
any visual or auditory depiction, including any
photograph, motion-picture film, video recording,
electronic image, or sound recording of conduct in
which a living animal is intentionally maimed,
mutilated, tortured, wounded, or killed, if such
conduct is illegal under Federal law or the law of the
State in which the creation, sale, or possession takes
place, regardless of whether the maiming, mutilation,
torture, wounding, or killing took place in the State;
and
[(2) the term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Commonwealth of the Northern Mariana Islands, and
any other commonwealth, territory, or possession of the
United States.]
Sec. 48. Animal crush videos
(a) Prohibition.--Whoever knowingly and for the purpose of
commercial advantage or private financial gain sells or offers
to sell, or distributes or offers to distribute, an animal
crush video in interstate or foreign commerce shall be fined
under this title or imprisoned not more than 5 years, or both.
(b) Rule of Construction.--Subsection (a) does not prohibit
the sale, distribution, or offer for sale or distribution, of
any visual depiction of--
(1) customary and normal veterinary or agricultural
husbandry practices; or
(2) hunting, trapping, or fishing.
(c) Definitions.--In this section the term ``animal crush
video'' means any obscene photograph, motion-picture film,
video recording, or electronic image that depicts actual
conduct in which one or more living animals is intentionally
crushed, burned, drowned, suffocated, or impaled in a manner
that would violate a criminal prohibition on cruelty to animals
under Federal law or the law of the State in which the
depiction is created, sold, distributed, or offered for sale or
distribution.
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