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Do-over on Crush Videos

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As noted in Bill's post, the Supreme Court in United States v. Stevens struck down 18 U.S.C. ยง48. Like everyone else with sense, I have nothing but contempt for both the producers and the consumers of "crush videos." Unfortunately, this is a seriously incompetent bit of legislative drafting. Congress needs to reenact this statute and do it right this time.

Here is what Congress intended to ban, from House Report 106-397:

At a hearing on the bill before the committee's Subcommittee on Crime, a California State prosecutor and a police officer described how they came to learn about a growing market in videotapes and still photographs depicting insects and small animals being slowly crushed to death. While most of this material featured torture to mice, hamsters, and other small animals, their investigation did find depictions of cats, dogs, and even monkeys being tortured. Much of the material featured women inflicting the torture with their bare feet or while wearing high heeled shoes. In some video depictions, the woman's voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.

No dispute there. Unfortunately, Congress defined "animal cruelty" in a way far broader than any sensible definition of that term. Any wounding or killing of an animal that is illegal in the place where the depiction is possessed, even if perfectly legal where it takes place, is included in the definition of animal cruelty. So possessing Field and Stream becomes a crime in D.C., where all hunting is illegal? How about if you take a trip to Spain, go to a bullfight with your video camera, and bring your home video back into the U.S.?

The statute does have an exception for "serious religious, political, scientific, educational, journalistic, historical, or artistic value." Such exceptions make the legality of conduct dependent on a prosecutor's or judge's post hoc determination of what is "serious."  That is passing the buck, and it makes the law vague.

Be careful when you write criminal laws, legislators.  And be particularly careful with those definitions. The legislative definition of a word needs to be reasonably congruent with the general understanding of that word. Sometimes it needs to be somewhat broader to avoid vagueness problems, but it shouldn't be so broad as to include vast swaths of conduct far beyond the normal meaning. And passing the buck to prosecutors and judges is not an adequate solution.

1 Comment

Does the rule of lenity create pressures on the legislature to legislate "on the safe side"? The language about legality where it's possessed is likely designed to deal with overseas productions of these things. My concern, and I agree that the statute wasn't well done, is that the Court is forcing Congress to thread a needle.

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