18 USC 3509: Pornography

            
 
          Sec. 3509. Child victims' and child witnesses' rights

    (a) Definitions.--For purposes of this section--
        (1) the term ``adult attendant'' means an adult described in 
    subsection (i) who accompanies a child throughout the judicial 
    process for the purpose of providing emotional support;
        (2) the term ``child'' means a person who is under the age of 
    18, who is or is alleged to be--
            (A) a victim of a crime of physical abuse, sexual abuse, or 
        exploitation; or
            (B) a witness to a crime committed against another person;

        (3) the term ``child abuse'' means the physical or mental 
    injury, sexual abuse or exploitation, or negligent treatment of a 
    child;
        (4) the term ``physical injury'' includes lacerations, fractured 
    bones, burns, internal injuries, severe bruising or serious bodily 
    harm;
        (5) the term ``mental injury'' means harm to a child's 
    psychological or intellectual functioning which may be exhibited by 
    severe anxiety, depression, withdrawal or outward aggressive 
    behavior, or a combination of those behaviors, which may be 
    demonstrated by a change in behavior, emotional response, or 
    cognition;
        (6) the term ``exploitation'' means child pornography or child 
    prostitution;
        (7) the term ``multidisciplinary child abuse team'' means a 
    professional unit composed of representatives from health, social 
    service, law enforcement, and legal service agencies to coordinate 
    the assistance needed to handle cases of child abuse;
        (8) the term ``sexual abuse'' includes the employment, use, 
    persuasion, inducement, enticement, or coercion of a child to engage 
    in, or assist another person to engage in, sexually explicit conduct 
    or the rape, molestation, prostitution, or other form of sexual 
    exploitation of children, or incest with children;
        (9) the term ``sexually explicit conduct'' means actual or 
    simulated--
            (A) sexual intercourse, including sexual contact in the 
        manner of genital-genital, oral-genital, anal-genital, or oral-
        anal contact, whether between persons of the same or of opposite 
        sex; sexual contact means the intentional touching, either 
        directly or through clothing, of the genitalia, anus, groin, 
        breast, inner thigh, or buttocks of any person with an intent to 
        abuse, humiliate, harass, degrade, or arouse or gratify sexual 
        desire of any person;
            (B) bestiality;
            (C) masturbation;
            (D) lascivious exhibition of the genitals or pubic area of a 
        person or animal; or
            (E) sadistic or masochistic abuse;

        (10) the term ``sex crime'' means an act of sexual abuse that is 
    a criminal act;
        (11) the term ``negligent treatment'' means the failure to 
    provide, for reasons other than poverty, adequate food, clothing, 
    shelter, or medical care so as to seriously endanger the physical 
    health of the child; and
        (12) the term ``child abuse'' does not include discipline 
    administered by a parent or legal
    guardian to his or her child provided it is reasonable in manner and 
    moderate in degree and otherwise does not constitute cruelty.

    (b) Alternatives to Live In-Court Testimony.--
        (1) Child's live testimony by 2-way closed circuit television.--
            (A) In a proceeding involving an alleged offense against a 
        child, the attorney for the Government, the child's attorney, or 
        a guardian ad litem appointed under subsection (h) may apply for 
        an order that the child's testimony be taken in a room outside 
        the courtroom and be televised by 2-way closed circuit 
        television. The person seeking such an order shall apply for 
        such an order at least 5 days before the trial date, unless the 
        court finds on the record that the need for such an order was 
        not reasonably foreseeable.
            (B) The court may order that the testimony of the child be 
        taken by closed-circuit television as provided in subparagraph 
        (A) if the court finds that the child is unable to testify in 
        open court in the presence of the defendant, for any of the 
        following reasons:
                (i) The child is unable to testify because of fear.
                (ii) There is a substantial likelihood, established by 
            expert testimony, that the child would suffer emotional 
            trauma from testifying.
                (iii) The child suffers a mental or other infirmity.
                (iv) Conduct by defendant or defense counsel causes the 
            child to be unable to continue testifying.

            (C) The court shall support a ruling on the child's 
        inability to testify with findings on the record. In determining 
        whether the impact on an individual child of one or more of the 
        factors described in subparagraph (B) is so substantial as to 
        justify an order under subparagraph (A), the court may question 
        the minor in chambers, or at some other comfortable place other 
        than the courtroom, on the record for a reasonable period of 
        time with the child attendant, the prosecutor, the child's 
        attorney, the guardian ad litem, and the defense counsel 
        present.
            (D) If the court orders the taking of testimony by 
        television, the attorney for the Government and the attorney for 
        the defendant not including an attorney pro se for a party shall 
        be present in a room outside the courtroom with the child and 
        the child shall be subjected to direct and cross-examination. 
        The only other persons who may be permitted in the room with the 
        child during the child's testimony are--
                (i) the child's attorney or guardian ad litem appointed 
            under subsection (h);
                (ii) persons necessary to operate the closed-circuit 
            television equipment;
                (iii) a judicial officer, appointed by the court; and
                (iv) other persons whose presence is determined by the 
            court to be necessary to the welfare and well-being of the 
            child, including an adult attendant.

    The child's testimony shall be transmitted by closed circuit 
    television into the courtroom for viewing and hearing by the 
    defendant, jury, judge, and public. The defendant shall be provided 
    with the means of private, contemporaneous communication with the 
    defendant's attorney during the testimony. The closed circuit 
    television transmission shall relay into the room in which the child 
    is testifying the defendant's image, and the voice of the judge.
        (2) Videotaped deposition of child.--(A) In a proceeding 
    involving an alleged offense against a child, the attorney for the 
    Government, the child's attorney, the child's parent or legal 
    guardian, or the guardian ad litem appointed under subsection (h) 
    may apply for an order that a deposition be taken of the child's 
    testimony and that the deposition be recorded and preserved on 
    videotape.
        (B)(i) Upon timely receipt of an application described in 
    subparagraph (A), the court shall make a preliminary finding 
    regarding whether at the time of trial the child is likely to be 
    unable to testify in open court in the physical presence of the 
    defendant, jury, judge, and public for any of the following reasons:
            (I) The child will be unable to testify because of fear.
            (II) There is a substantial likelihood, established by 
        expert testimony, that the child would suffer emotional trauma 
        from testifying in open court.
            (III) The child suffers a mental or other infirmity.
            (IV) Conduct by defendant or defense counsel causes the 
        child to be unable to continue testifying.

        (ii) If the court finds that the child is likely to be unable to 
    testify in open court for any of the reasons stated in clause (i), 
    the court shall order that the child's deposition be taken and 
    preserved by videotape.
        (iii) The trial judge shall preside at the videotape deposition 
    of a child and shall rule on all questions as if at trial. The only 
    other persons who may be permitted to be present at the proceeding 
    are--
            (I) the attorney for the Government;
            (II) the attorney for the defendant;
            (III) the child's attorney or guardian ad litem appointed 
        under subsection (h);
            (IV) persons necessary to operate the videotape equipment;
            (V) subject to clause (iv), the defendant; and
            (VI) other persons whose presence is determined by the court 
        to be necessary to the welfare and well-being of the child.

    The defendant shall be afforded the rights applicable to defendants 
    during trial, including the right to an attorney, the right to be 
    confronted with the witness against the defendant, and the right to 
    cross-examine the child.
        (iv) If the preliminary finding of inability under clause (i) is 
    based on evidence that the child is unable to testify in the 
    physical presence of the defendant, the court may order that the 
    defendant, including a defendant represented pro se, be excluded 
    from the room in
    which the deposition is conducted. If the court orders that the 
    defendant be excluded from the deposition room, the court shall 
    order that 2-way closed circuit television equipment relay the 
    defendant's image into the room in which the child is testifying, 
    and the child's testimony into the room in which the defendant is 
    viewing the proceeding, and that the defendant be provided with a 
    means of private, contemporaneous communication with the defendant's 
    attorney during the deposition.
        (v) Handling of videotape.--The complete record of the 
    examination of the child, including the image and voices of all 
    persons who in any way participate in the examination, shall be made 
    and preserved on video tape in addition to being stenographically 
    recorded. The videotape shall be transmitted to the clerk of the 
    court in which the action is pending and shall be made available for 
    viewing to the prosecuting attorney, the defendant, and the 
    defendant's attorney during ordinary business hours.
        (C) If at the time of trial the court finds that the child is 
    unable to testify as for a reason described in subparagraph (B)(i), 
    the court may admit into evidence the child's videotaped deposition 
    in lieu of the child's testifying at the trial. The court shall 
    support a ruling under this subparagraph with findings on the 
    record.
        (D) Upon timely receipt of notice that new evidence has been 
    discovered after the original videotaping and before or during 
    trial, the court, for good cause shown, may order an additional 
    videotaped deposition. The testimony of the child shall be 
    restricted to the matters specified by the court as the basis for 
    granting the order.
        (E) In connection with the taking of a videotaped deposition 
    under this paragraph, the court may enter a protective order for the 
    purpose of protecting the privacy of the child.
        (F) The videotape of a deposition taken under this paragraph 
    shall be destroyed 5 years after the date on which the trial court 
    entered its judgment, but not before a final judgment is entered on 
    appeal including Supreme Court review. The videotape shall become 
    part of the court record and be kept by the court until it is 
    destroyed.

    (c) Competency Examinations.--
        (1) Effect of federal rules of evidence.--Nothing in this 
    subsection shall be construed to abrogate rule 601 of the Federal 
    Rules of Evidence.
        (2) Presumption.--A child is presumed to be competent.
        (3) Requirement of written motion.--A competency examination 
    regarding a child witness may be conducted by the court only upon 
    written motion and offer of proof of incompetency by a party.
        (4) Requirement of compelling reasons.--A competency examination 
    regarding a child may be conducted only if the court determines, on 
    the record, that compelling reasons exist. A child's age alone is 
    not a compelling reason.
        (5) Persons permitted to be present.--The only persons who may 
    be permitted to be present at a competency examination are--
            (A) the judge;
            (B) the attorney for the Government;
            (C) the attorney for the defendant;
            (D) a court reporter; and
            (E) persons whose presence, in the opinion of the court, is 
        necessary to the welfare and well-being of the child, including 
        the child's attorney, guardian ad litem, or adult attendant.

        (6) Not before jury.--A competency examination regarding a child 
    witness shall be conducted out of the sight and hearing of a jury.
        (7) Direct examination of child.--Examination of a child related 
    to competency shall normally be conducted by the court on the basis 
    of questions submitted by the attorney for the Government and the 
    attorney for the defendant including a party acting as an attorney 
    pro se. The court may permit an attorney but not a party acting as 
    an attorney pro se to examine a child directly on competency if the 
    court is satisfied that the child will not suffer emotional trauma 
    as a result of the examination.
        (8) Appropriate questions.--The questions asked at the 
    competency examination of a child shall be appropriate to the age 
    and developmental level of the child, shall not be related to the 
    issues at trial, and shall focus on determining the child's ability 
    to understand and answer simple questions.
        (9) Psychological and psychiatric examinations.--Psychological 
    and psychiatric examinations to assess the competency of a child 
    witness shall not be ordered without a showing of compelling need.

    (d) Privacy Protection.--
        (1) Confidentiality of information.--(A) A person acting in a 
    capacity described in subparagraph (B) in connection with a criminal 
    proceeding shall--
            (i) keep all documents that disclose the name or any other 
        information concerning a child in a secure place to which no 
        person who does not have reason to know their contents has 
        access; and
            (ii) disclose documents described in clause (i) or the 
        information in them that concerns a child only to persons who, 
        by reason of their participation in the proceeding, have reason 
        to know such information.

        (B) Subparagraph (A) applies to--
            (i) all employees of the Government connected with the case, 
        including employees of the Department of Justice, any law 
        enforcement agency involved in the case, and any person hired by 
        the Government to provide assistance in the proceeding;
            (ii) employees of the court;
            (iii) the defendant and employees of the defendant, 
        including the attorney for the defendant and persons hired by 
        the defendant or the attorney for the defendant to provide 
        assistance in the proceeding; and
            (iv) members of the jury.

        (2) Filing under seal.--All papers to be filed in court that 
    disclose the name of or any other information concerning a child 
    shall be filed under seal without necessity of obtaining a
    court order. The person who makes the filing shall submit to the 
    clerk of the court--
            (A) the complete paper to be kept under seal; and
            (B) the paper with the portions of it that disclose the name 
        of or other information concerning a child redacted, to be 
        placed in the public record.

        (3) Protective orders.--(A) On motion by any person the court 
    may issue an order protecting a child from public disclosure of the 
    name of or any other information concerning the child in the course 
    of the proceedings, if the court determines that there is a 
    significant possibility that such disclosure would be detrimental to 
    the child.
        (B) A protective order issued under subparagraph (A) may--
            (i) provide that the testimony of a child witness, and the 
        testimony of any other witness, when the attorney who calls the 
        witness has reason to anticipate that the name of or any other 
        information concerning a child may be divulged in the testimony, 
        be taken in a closed courtroom; and
            (ii) provide for any other measures that may be necessary to 
        protect the privacy of the child.

        (4) Disclosure of information.--This subsection does not 
    prohibit disclosure of the name of or other information concerning a 
    child to the defendant, the attorney for the defendant, a 
    multidisciplinary child abuse team, a guardian ad litem, or an adult 
    attendant, or to anyone to whom, in the opinion of the court, 
    disclosure is necessary to the welfare and well-being of the child.

    (e) Closing the Courtroom.--When a child testifies the court may 
order the exclusion from the courtroom of all persons, including members 
of the press, who do not have a direct interest in the case. Such an 
order may be made if the court determines on the record that requiring 
the child to testify in open court would cause substantial psychological 
harm to the child or would result in the child's inability to 
effectively communicate. Such an order shall be narrowly tailored to 
serve the Government's specific compelling interest.
    (f) Victim Impact Statement.--In preparing the presentence report 
pursuant to rule 32(c) of the Federal Rules of Criminal Procedure, the 
probation officer shall request information from the multidisciplinary 
child abuse team and other appropriate sources to determine the impact 
of the offense on the child victim and any other children who may have 
been affected. A guardian ad litem appointed under subsection (h) shall 
make every effort to obtain and report information that accurately 
expresses the child's and the family's views concerning the child's 
victimization. A guardian ad litem shall use forms that permit the child 
to express the child's views concerning the personal consequences of the 
child's victimization, at a level and in a form of communication 
commensurate with the child's age and ability.
    (g) Use of Multidisciplinary Child Abuse Teams.--
        (1) In general.--A multidisciplinary child abuse team shall be 
    used when it is feasible to do so. The court shall work with State 
    and local governments that have established multidisciplinary child 
    abuse teams designed to assist child victims and child witnesses, 
    and the court and the attorney for the Government shall consult with 
    the multidisciplinary child abuse team as appropriate.
        (2) Role of multidisciplinary child abuse teams.--The role of 
    the multidisciplinary child abuse team shall be to provide for a 
    child services that the members of the team in their professional 
    roles are capable of providing, including--
            (A) medical diagnoses and evaluation services, including 
        provision or interpretation of x-rays, laboratory tests, and 
        related services, as needed, and documentation of findings;
            (B) telephone consultation services in emergencies and in 
        other situations;
            (C) medical evaluations related to abuse or neglect;
            (D) psychological and psychiatric diagnoses and evaluation 
        services for the child, parent or parents, guardian or 
        guardians, or other caregivers, or any other individual involved 
        in a child victim or child witness case;
            (E) expert medical, psychological, and related professional 
        testimony;
            (F) case service coordination and assistance, including the 
        location of services available from public and private agencies 
        in the community; and
            (G) training services for judges, litigators, court officers 
        and others that are involved in child victim and child witness 
        cases, in handling child victims and child witnesses.

    (h) Guardian Ad Litem.--
        (1) In general.--The court may appoint, and provide reasonable 
    compensation and payment of expenses for, a guardian ad litem for a 
    child who was a victim of, or a witness to, a crime involving abuse 
    or exploitation to protect the best interests of the child. In 
    making the appointment, the court shall consider a prospective 
    guardian's background in, and familiarity with, the judicial 
    process, social service programs, and child abuse issues. The 
    guardian ad litem shall not be a person who is or may be a witness 
    in a proceeding involving the child for whom the guardian is 
    appointed.
        (2) Duties of guardian ad litem.--A guardian ad litem may attend 
    all the depositions, hearings, and trial proceedings in which a 
    child participates, and make recommendations to the court concerning 
    the welfare of the child. The guardian ad litem may have access to 
    all reports, evaluations and records, except attorney's work 
    product, necessary to effectively advocate for the child. (The 
    extent of access to grand jury materials is limited to the access 
    routinely provided to victims and their representatives.) A guardian 
    ad litem shall marshal and coordinate the delivery of resources and 
    special services to the child. A guardian ad litem shall not be 
    compelled to testify in any court action or proceeding concerning 
    any information or opinion received from the child in the course of 
    serving as a guardian ad litem.
        (3) Immunities.--A guardian ad litem shall be presumed to be 
    acting in good faith and shall be immune from civil and criminal 
    liability for complying with the guardian's lawful duties described 
    in paragraph (2).

    (i) Adult Attendant.--A child testifying at or attending a judicial 
proceeding shall have the right to be accompanied by an adult attendant 
to provide emotional support to the child. The court, at its discretion, 
may allow the adult attendant to remain in close physical proximity to 
or in contact with the child while the child testifies. The court may 
allow the adult attendant to hold the child's hand or allow the child to 
sit on the adult attendant's lap throughout the course of the 
proceeding. An adult attendant shall not provide the child with an 
answer to any question directed to the child during the course of the 
child's testimony or otherwise prompt the child. The image of the child 
attendant, for the time the child is testifying or being deposed, shall 
be recorded on videotape.
    (j) Speedy Trial.--In a proceeding in which a child is called to 
give testimony, on motion by the attorney for the Government or a 
guardian ad litem, or on its own motion, the court may designate the 
case as being of special public importance. In cases so designated, the 
court shall, consistent with these rules, expedite the proceeding and 
ensure that it takes precedence over any other. The court shall ensure a 
speedy trial in order to minimize the length of time the child must 
endure the stress of involvement with the criminal process. When 
deciding whether to grant a continuance, the court shall take into 
consideration the age of the child and the potential adverse impact the 
delay may have on the child's well-being. The court shall make written 
findings of fact and conclusions of law when granting a continuance in 
cases involving a child.
    (k) Stay of Civil Action.--If, at any time that a cause of action 
for recovery of compensation for damage or injury to the person of a 
child exists, a criminal action is pending which arises out of the same 
occurrence and in which the child is the victim, the civil action shall 
be stayed until the end of all phases of the criminal action and any 
mention of the civil action during the criminal proceeding is 
prohibited. As used in this subsection, a criminal action is pending 
until its final adjudication in the trial court.
    (l) Testimonial Aids.--The court may permit a child to use 
anatomical dolls, puppets, drawings, mannequins, or any other 
demonstrative device the court deems appropriate for the purpose of 
assisting a child in testifying.
    (m) Prohibition on Reproduction of Child Pornography.--
        (1) In any criminal proceeding, any property or material that 
    constitutes child pornography (as defined by section 2256 of this 
    title) shall remain in the care, custody, and control of either the 
    Government or the court.
        (2)(A) Notwithstanding Rule 16 of the Federal Rules of Criminal 
    Procedure, a court shall deny, in any criminal proceeding, any 
    request by the defendant to copy, photograph, duplicate, or 
    otherwise reproduce any property or material that constitutes child 
    pornography (as defined by section 2256 of this title), so long as 
    the Government makes the property or material reasonably available 
    to the defendant.
        (B) For the purposes of subparagraph (A), property or material 
    shall be deemed to be reasonably available to the defendant if the 
    Government provides ample opportunity for inspection, viewing, and 
    examination at a Government facility of the property or material by 
    the defendant, his or her attorney, and any individual the defendant 
    may seek to qualify to furnish expert testimony at trial.

(Added Pub. L. 101-647, title II, Sec. 225(a), Nov. 29, 1990, 104 Stat. 
4798; amended Pub. L. 103-322, title XXXIII, Secs. 330010(6), (7), 
330011(e), 330018(b), Sept. 13, 1994, 108 Stat. 2143, 2145, 2149; Pub. 
L. 104-294, title VI, Sec. 605(h), Oct. 11, 1996, 110 Stat. 3510; Pub. 
L. 109-248, title V, Secs. 504, 507, July 27, 2006, 120 Stat. 629, 
631.)

                       References in Text

    The Federal Rules of Evidence, referred to in subsec. (c)(1), are 
set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
    The Federal Rules of Criminal Procedure, referred to in subsecs. (f) 
and (m)(2)(A), are set out in the Appendix to this title.
                               Amendments

    2006--Subsec. (h)(1). Pub. L. 109-248, Sec. 507, inserted ``, and 
provide reasonable compensation and payment of expenses for,'' after 
``The court may appoint''.
    Subsec. (m). Pub. L. 109-248, Sec. 504, added subsec. (m).
    1996--Subsec. (e). Pub. L. 104-294, Sec. 605(h)(1), substituted 
``serve the Government's'' for ``serve the government's''.
    Subsec. (h)(3). Pub. L. 104-294, Sec. 605(h)(2), substituted ``in 
paragraph (2)'' for ``in subpart (2)''.
    1994--Pub. L. 103-322, Sec. 330011(e), made technical amendment to 
directory language of Pub. L. 101-647, Sec. 225(a), which enacted this 
section.
    Pub. L. 103-322, Sec. 330010(7)(B), substituted ``Government'' for 
``government'' in subsecs. (b)(1)(A), (D), (2)(A), and (c)(5)(B), in 
subsec. (d)(1)(B)(i) after ``hired by the'', and in subsec. (g)(1).
    Pub. L. 103-322, Sec. 330010(7)(A), substituted ``subsection'' for 
``subdivision'' in subsecs. (b)(1)(A), (D)(i), (2)(A), (B)(iii)(III), 
(c)(1), (d)(4), and (f).
    Subsec. (a)(11) to (13). Pub. L. 103-322, Sec. 330010(6), 
redesignated pars. (12) and (13) as (11) and (12), respectively, and 
struck out former par. (11) which read as follows: ``the term 
`exploitation' means child pornography or child prostitution;''.
    Subsec. (k). Pub. L. 103-322, Sec. 330018(b), substituted heading 
for one which read ``Extension of Child Statute of Limitations'' and 
struck out first sentence which read as follows: ``No statute of 
limitation that would otherwise preclude prosecution for an offense 
involving the sexual or physical abuse of a child under the age of 18 
years shall preclude such prosecution before the child reaches the age 
of 25 years.''
                    Effective Date of 1994 Amendment

    Section 330011(e) of Pub. L. 103-322 provided that the amendment 
made by that section is effective as of the date on which section 225(a) 
of Pub. L. 101-647 took effect.