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111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-549

======================================================================



 
  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.
---------------------------------------------------------------------------
    \1\U.S. v. Stevens, 130 S.Ct. 1577 (2010).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \4\Press Release, Rep. Elton W. Gallegly, ``Beyond Cruelty,'' (Dec. 
16, 2007).
---------------------------------------------------------------------------

            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\
---------------------------------------------------------------------------
    \5\U.S. v. Stevens, cert. granted, 129 S.Ct. 1984 (2009).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \7\Id. at 1590-1591.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.'')).
---------------------------------------------------------------------------

          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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                                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
----------------------------------------------------------------------------------------------------------------

                      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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