Could Adam Walsh Act Harm the Adult Biz?
The original laudable purpose of the legislation that would become the Adam Walsh Act was certainly one I doubt any normal person would object to: the protection of children from sexual exploitation and violent crimes.
Sadly, however, like so many other important tasks undertaken by the Republican-controlled 109th Congress, it wasn't long before the initial purpose of HR 4472 was utterly corrupted.
Soon after its introduction, the bill was seized upon by partisan anti-porn zealots as a golden opportunity to enact new restrictive and frighteningly punitive measures directed toward the adult entertainment industry.
For example, the Adam Walsh Act became the vehicle through which the Evangelical Christian lobby in Congress rammed through the now infamous modifications of 2257 that exponentially increased the amount and kinds of content subject to the recordkeeping and labeling provisions, including for the first time, an expansion of the statute's onerous recordkeeping and labeling obligations to include content depicting mere nudity. And through a new section, 2257A, the Adam Walsh Act extended all of 2257's burdens to depictions of simulated sexual acts.
It also expanded the type of parties subject to the 2257 regulations to include website and computer site operators.
The Adam Walsh Act even included a dangerous new provision that requires a 2257 compliance statement on every page of a web site with 2257 content.
This is a change in the law that supersedes the Department of Justice's 2257 regulations and is, unfortunately and dangerously, a new obligation that is still not universally known in the industry.
But, unfortunately, that's not all that was tucked away in the Adam Walsh Act. Adam's law is the genesis of yet another plague on our freedoms that legal prophets predict could soon raise Cain in the adult entertainment industry.
Part of the Adam Walsh Act was intended by Congress to provide a uniform method of classifying sex offenses for the purpose of creating a national system of convicted sex offender registration and tracking throughout the U.S.
The goal was to make sure that convicted child molesters and other child predators are subjected to uniform requirements for registration and reporting throughout the U.S.
The Act does this, in part, using a three-tier classification regime with different sex offender registration requirements associated with offenses classified in each tier. A sex offender of Tier 1 offense would, for example, be required to register as a sex offender for 15 years.
To force the states to do their part to implement the necessary local legislation, the Adam Walsh Act requires that each state adopt the provisions and guidelines of the Act and submit to a Department of Justice evaluation of their enabling legislation. Any state that fails to comply by July 27, 2009, will lose 10 percent of the state's federal block grant funds for law enforcement.
While I disagree with the federal government's method of virtually extorting state cooperation, I do not disagree with its goal of creating a uniform system of monitoring dangerous child abusers. I want my government to keep an eye on convicted child predators, and until there is a cure for their disease, I personally believe that it's a good idea to keep them the hell away from kids. But, unfortunately, thanks to those who believe they would do God's work by stamping out adult erotica, there are now more than a few devils in the details of what was once a well-intended regulatory system set forth in the Adam Walsh Act.
As part of the Act's universal sex offender classification scheme, the definition of a "sex offense" is defined to mean "a criminal offense that has an element involving a sexual act or sexual contact with another."
The definition of a "sex offender" under the Adam Walsh Act is "an individual who was convicted of a sex offense."
But the Adam Walsh Act leaves it to the states to determine for themselves what type of offense will be classified as "a criminal offense that has an element involving a sexual act or sexual contact with another"? And this, unfortunately, thanks to the religious right, is the genesis of a new headache for the adult entertainment industry. For now the religious right has fifty opportunities to get state legislatures to re-classify illegal conduct that might be applicable to the normal functioning of the adult entertainment business as "sex offenses," thereby triggering the new uniform Adam Walsh Act sex offender registration and reporting requirements.
Several states have introduced legislation to comply with the Adam Walsh Act, but to date only one has actually enacted new regulations that have gone into effect. That state is Ohio. A state that can boast that it is not only the home of the Rock and Roll Museum but that it also the place that has twice prosecuted Larry Flynt for the offense of "pandering obscenity."
So, when the Ohio legislature reclassified its child predator laws to conform with the Walsh Act, yea, you guessed it, the good morality police in residence in the Buckeye State stepped right up to be first in the nation to make the crime of pandering obscenity, i.e., the creating, advertising, selling, renting, delivering or displaying an obscene work, "a sex offense."
That now means that persons convicted of advertising or selling obscenity in Ohio, by any means, including via the web, will automatically become "sex offenders" subject to the new national sex offender registration and tracking mandated by the Adam Walsh Act.
Let me repeat that: The crime of pandering obscene materials, including materials that only depict consenting adults and are only advertised, rented, sold or displayed to adults, is a crime that is now a Tier 1 sex offense in Ohio that could subject an offender to a year in jail and 15 years forced registration as a sex offender everywhere in the U.S.
Now if you're wondering how Ohio's decision to require sex offender registration for persons convicted of say, advertising an adult DVD or providing downloadable sex clip that depicts consenting adults having sex can possibly help protect children from a horrible fate like Adam Walsh's, well wonder no more, the simple answer is, it doesn't.
What such a law does, by requiring 15 years of sex offender registration for acts such as selling an adult video, promoting an adult website or engaging in live adult videochat, is to brand the alleged offender with a modern version of the Scarlet Letter.
For example, thanks to the web, the fact that a person is a registered sex offender is becoming more and more easily discoverable all the time. But the shame of being listed among child molesters is much less a problem for registered sex offenders than complying with residential restrictions imposed by regulations such the one currently effective in Ohio: "Sec. 2950.034. (A) No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to a sexually oriented offense or a child-victim oriented offense shall establish a residence or occupy residential premises within one thousand feet of any school premises or preschool or child day-care center premises .... "
In a shameful act of using the shame associated with the sex offender status of pedophiles and child molesters and the threat of imposing the burdens of sex offender registration to discourage participation in the adult business in furtherance of the moral agenda of social conservatives, the legislators and governor of Ohio have ratcheted up the problem.
And in the process they have shown us once again how cheaply they will sell out their citizens' freedoms for political gain and that they, and not the adult industry in this instance, are the ones truly bereft of morality.
Gregory A. Piccionelli is one of the world's most experienced adult entertainment business attorneys. He can be reached at Piccionelli & Sarno at (310) 553-3375 or at firstname.lastname@example.org.