Research on sex offender laws and their effects on people and society
Age Analysis of Recent US Sex Laws
by Marshall Burns, Ph.D.
Additional background for the SOLR report, The US Federal Age of Sexual Consent Details of the age analysis performed on the PROTECT Act and the Walsh Act.
Major US federal laws governing sexual activity were passed in the PROTECT Act of 2003 and the Adam Walsh Act of 2006. An age analysis has been performed on these two laws to see what they say about persons below any particular age. This looked for situations where these laws make some kind of sexual activity with a person below a certain age illegal, independent of or overriding any state laws under which it would be legal. Situations where this was found to be the case are discussed in the primary report, The US Federal Age of Sexual Consent. The present report shows the details of the analysis.
The first step was to search for and highlight age-related words in the two laws. (See the results of the searches for the Age analysis of the PROTECT Act and Age analysis of the Walsh Act acts.) Next, the text associated with the found words was analyzed for meaning. The results of this analysis are as follows.
PROTECT, §105 modified the law against "sex tourism" and establishes an age of consent for two circumstances:
PROTECT, §204 increases the age for required reporting of a missing child from 18 to 21. This does not relate to sexual activity, so it does not establish or affect any age of sexual consent.
PROTECT, § 502 to 511 and 513 and Walsh, §206(b) relate to child pornography. The PROTECT Act provisions make it a federal crime to make (or possess or post online, etc.) sexy photos or videos that include a person under 18, even if under the relevant state law any activity depicted is legal and even if the photos or videos are made (or possessed or posted, etc.) by the minor(s) depicted in them. This essentially establishes a federal age of consent with respect to being photographed in a sexual context. The PROTECT Act provisions also include language that creates federal jurisdiction for virtually any occurrence of child pornography by covering anything that was made using materials that crossed a state or national border. The offenses defined require the making of an image; they do not apply to sex acts that are not recorded. (The definition of "minor" here is in the code chapter of the statute that it amends.)
PROTECT, §521 prohibits tricking people into looking at a pornographic website, with more stringent and more severe provisions if the person being tricked is under 18. Jurisdiction is anywhere in the US because of the use of the Internet. (The definition of "minor" here is in the code chapter of the statute that it amends.) This does not establish an age of sexual consent.
The acts include the following definitions:
The following laws affect the penalties for crimes against minors, but do not establish what activity is illegal, which must be defined elsewhere. These laws do not establish any age of consent, but they may alter the effect of federal ages of sexual consent established elsewhere. These laws apply to federal crimes which require federal jurisdiction, meaning they are committed in a maritime or territorial jurisdiction, in a federal prison, on an Indian reservation, across a state or US border, or involving pornography made using materials that crossed a state or national border.
Questions of Law
The author is not an attorney and poses the following questions in case a reader of this report has the expertise to provide answers or helpful comments.
See other related questions of law in the primary report, The US Federal Age of Sexual Consent.
This report posted on January 15, 2008.
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