PUBLIC LAW 108–21—APR. 30, 2003
117 STAT. 679
‘‘(i) sexual intercourse, including genital-genital, oralgenital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; ‘‘(ii) bestiality; ‘‘(iii) masturbation; ‘‘(iv) sadistic or masochistic abuse; or ‘‘(v) lascivious exhibition of the genitals or pubic area of any person; ‘‘(B) For purposes of subsection 8(B) of this section, ‘sexually explicit conduct’ means— ‘‘(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited; ‘‘(ii) graphic or lascivious simulated; ‘‘(I) bestiality; ‘‘(II) masturbation; or ‘‘(III) sadistic or masochistic abuse; or ‘‘(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;’’. (c) Section 2256 is amended by inserting at the end the following new paragraphs: ‘‘(10) ‘graphic’, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and ‘‘(11) the term ‘indistinguishable’ used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.’’. (d) Section 2252A(c) of title 18, United States Code, is amended to read as follows: ‘‘(c) It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) that— ‘‘(1)(A) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; and ‘‘(B) each such person was an adult at the time the material was produced; or ‘‘(2) the alleged child pornography was not produced using any actual minor or minors. No affirmative defense under subsection (c)(2) shall be available in any prosecution that involves child pornography as described in section 2256(8)(C). A defendant may not assert an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) unless, within the time provided for filing pretrial motions or at such time prior to trial as the judge may direct, but in no event later than 10 days before the commencement of the trial, the defendant provides the court and the United States with notice of the intent to assert such defense and the substance of any expert or other specialized testimony or evidence upon which the defendant intends to rely. If the defendant fails to comply
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