Constitutionality of sex offender registries in the United States
37-485: The PROTECT Act of 2003 ( Pub. L. 108–21 (text) (PDF) , 117 Stat. 650, S. 151, enacted April 30, 2003) is a United States law with the stated intent of preventing child abuse as well as investigating and prosecuting violent crimes against children. "PROTECT" is a backronym which stands for "Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today". The PROTECT Act incorporates
74-402: A civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct. In civil lawsuits, affirmative defenses include the statute of limitations , the statute of frauds , waiver , and other affirmative defenses such as, in
111-490: A manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct. The Williams court held that although the content described in subsections (i) and (ii) is not constitutionally protected, speech that advertises or promotes such content does have
148-409: A mistake of fact claim in a prosecution for intentional drug possession, where the defendant asserts that he or she mistakenly believed that the object possessed was an innocent substance. Because this defense simply shows that an element of the offense (knowledge of the nature of the substance) is not present, the defendant does not have any burden of persuasion with regard to a negating defense. At most
185-482: Is promulgated , or given the force of law, in one of the following ways: The president promulgates acts of Congress made by the first two methods. If an act is made by the third method, the presiding officer of the house that last reconsidered the act promulgates it. Under the United States Constitution , if the president does not return a bill or resolution to Congress with objections before
222-890: Is an affirmative defense at common law)], which the prosecution has the burden of disproving beyond a reasonable doubt. Rule 8 of the Federal Rules of Civil Procedure governs the assertion of affirmative defenses in civil cases that are filed in the United States district courts . Rule 8(c) specifically enumerates the following defenses: " accord and satisfaction , arbitration and award, assumption of risk , contributory negligence , discharge in bankruptcy , estoppel , failure of consideration , fraud , illegality , injury by fellow servant , laches , license , payment , release , res judicata , statute of frauds , statute of limitations , waiver , and any other matter constituting an avoidance or affirmative defense." Rule 11 of
259-547: Is deprecated by some dictionaries and usage authorities. However, the Bluebook requires "Act" to be capitalized when referring to a specific legislative act. The United States Code capitalizes "act". The term "act of Congress" is sometimes used in informal speech to indicate something for which getting permission is burdensome. For example, "It takes an act of Congress to get a building permit in this town." An act adopted by simple majorities in both houses of Congress
296-657: Is not always an affirmative defense; the burden of persuasion may instead fall to the copyright owner in Digital Millennium Copyright Act (DMCA) infringement actions. In a case challenging a takedown notice issued under the DMCA, the Ninth Circuit held in Lenz v. Universal Music Corp. that the submitter of a DMCA takedown request (who would then be the plaintiff in any subsequent litigation) has
333-430: The 111th United States Congress . Public laws are also often abbreviated as Pub. L. No. X–Y. When the legislation of those two kinds are proposed, it is called public bill and private bill respectively. The word "act", as used in the term "act of Congress", is a common, not a proper noun . The capitalization of the word "act" (especially when used standing alone to refer to an act mentioned earlier by its full name)
370-599: The Child Pornography Prevention Act of 1996 had been ruled unconstitutional by the U.S. Supreme Court in its 2002 decision, Ashcroft v. Free Speech Coalition . The PROTECT ACT attached an obscenity requirement under the Miller test or the variant test noted above to overcome this limitation. The PROTECT Act allows sex offenders to be sentenced to a lifetime term of federal supervised release . Although targeted most directly at sex offenders, it
407-765: The Eleventh Circuit Court of Appeals ruled that one component of the PROTECT Act, the "pandering provision" codified at 18 U.S.C. § 2252A (a)(3)(B) of the United States Code , violated the First Amendment . The "pandering provision" conferred criminal liability on anyone who knowingly advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in
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#1732779834554444-443: The Federal Rules of Civil Procedure requires that affirmative defenses be based on "knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," and cannot consist of a laundry list of all known affirmative defenses. An affirmative defense is different from a "negating defense". A negating defense is one which tends to disprove an element of the plaintiff's or prosecutor's case. An example might be
481-589: The Miller test were overbroad and thus unconstitutional. Handley still faces an obscenity charge. A later ruling in United States v. Dean challenged the Handley overbreadth ruling because the Handley ruling did not prove that the sections had "substantial overbreadth". According to Adler, Delohery, and Charles Brownstein, "the current law raises concerns for creators, publishers, and collectors of various forms of entertainment (including, but not limited to, comics/manga, video games, and fine art)." Bell argues that
518-919: The Truth in Domain Names Act ( TDNA ) of 2003 (originally two separate bills, submitted by Senator Orrin Hatch and Congressman Mike Pence ), codified at 18 U.S.C. § 2252(B)(b). The law has the following effects: The PROTECT Act mandated that the United States Attorney General promulgate new regulations to enforce section 2257 of title 18, United States Code, colloquially known as the " 2257 Regulations ". The PROTECT Act includes prohibitions against obscene illustrations depicting child pornography, including computer-generated illustrations, also known as virtual child pornography . Previous provisions outlawing virtual child pornography in
555-506: The United States , those listed in Rule 8 (c) of the Federal Rules of Civil Procedure . In criminal prosecutions, examples of affirmative defenses are self defense , insanity , entrapment and the statute of limitations . In an affirmative defense, the defendant may concede that they committed the alleged acts, but they prove other facts which, under the law, either justify or excuse their otherwise wrongful actions, or otherwise overcomes
592-645: The Constitution may be declared unconstitutional by the courts. A judicial declaration that an act of Congress is unconstitutional does not remove the act from the Statutes at Large or the United States Code; rather, it prevents the act from being enforced. However, the act as published in annotated codes and legal databases is marked with annotations indicating that it is no longer good law. Affirmative defense An affirmative defense to
629-408: The PROTECT Act affects all federal supervised releasees. The PROTECT Act removed the "aggregation requirement" of 18 U.S.C. § 3583(e)(3) and 18 U.S.C. § 3583(h) , which had limited the net amount of imprisonment that a sentencing court could impose for supervised release violations. The act was signed into law by President George W. Bush on April 30, 2003. Following
666-516: The PROTECT Act should be reexamined by Congress because it infringes on the First Amendment 's right to free expression. https://www.rcfp.org/journals/the-news-media-and-the-law-winter-2000/acts-prohibition-simulated/ Act of Congress#Public law, private law, designation An act of Congress is a statute enacted by the United States Congress . Acts may apply only to individual entities (called private laws ), or to
703-677: The Supreme Court reversed the Eleventh Circuit's ruling and upheld this portion of the act. However, the court did not reverse its holding in Ashcroft v. Free Speech Coalition as to virtual child pornography which is not obscene under the Miller standard. In July 2024, R. Kelly asked the Supreme Court to overturn his criminal convictions because he is using the statute of limitations as an affirmative defense . Kelly says that
740-489: The Supreme Court's decision in Ashcroft v. Free Speech Coalition , Congress started working on a bill to address the court's concerns almost immediately. That same day, Representative Mark Foley stated that "The high court sided with pedophiles over children." The earliest known mention of the decision comes from April 17, 2002 in the Congressional Record, one day after the court's decision by Rep. Foley. This
777-455: The burden to consider fair use prior to submitting the takedown request. "Even if, as Universal urges, fair use is classified as an 'affirmative defense,' we hold—for the purposes of the DMCA—fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use
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#1732779834554814-547: The crimes occurred in the 1990s which punishes him retroactively. The first conviction of a person found to have violated the sections of the act relating to virtual child pornography was Dwight Whorley of Virginia, who used computers at the Virginia Employment Commission to download "Japanese anime style cartoons of children engaged in explicit sexual conduct with adults" alleged to depict "children engaged in explicit sexual conduct with adults". He
851-503: The defendant has the burden of producing sufficient evidence to raise the issue . In Campbell v. Acuff-Rose Music, Inc. , the United States Supreme Court held that fair use was an affirmative defense to copyright infringement . This means that in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. However, fair use
888-676: The following day and committee hearings by the Senate Judiciary Committee were held on October 2; no report was issued, and the bill did not pass the Senate. A similar bill, S. 2511, was introduced in the Senate on May 14, 2002, and was likewise referred to the Judiciary Committee. Both S. 2511 and H.R. 4623 expired at the end of the 107th Congress . On April 6, 2006, in United States v. Williams ,
925-537: The general public ( public laws ). For a bill to become an act, the text must pass through both houses with a majority, then be either signed into law by the president of the United States , be left unsigned for ten days (excluding Sundays) while Congress remains in session, or, if vetoed by the president, receive a congressional override from 2 ⁄ 3 of both houses. In the United States, acts of Congress are designated as either public laws , relating to
962-463: The general public, or private laws , relating to specific institutions or individuals. Since 1957, all Acts of Congress have been designated as "Public Law X–Y" or "Private Law X–Y", where X is the number of the Congress and Y refers to the sequential order of the bill (when it was enacted). For example, P. L. 111–5 ( American Recovery and Reinvestment Act of 2009 ) was the fifth enacted public law of
999-520: The law is accomplished by the president, or the relevant presiding officer in the case of an overridden veto, delivering the act to the archivist of the United States . The archivist provides for its publication as a slip law and in the United States Statutes at Large after receiving the act. Thereafter, the changes are published in the United States Code . Through the process of judicial review , an act of Congress that violates
1036-459: The plaintiff's claim. In criminal law, an affirmative defense is sometimes called a justification or excuse defense. Consequently, affirmative defenses limit or excuse a defendant's criminal culpability or civil liability . A clear illustration of an affirmative defense is self defense . In its simplest form, a criminal defendant may be exonerated if he can demonstrate that he had an honest and reasonable belief that another's use of force
1073-412: The plaintiff, generally the party who offers an affirmative defense bears the burden of proof . The standard of proof is typically lower than beyond a reasonable doubt . It can either be proved by clear and convincing evidence or by a preponderance of the evidence . In this respect, affirmative defenses differ from ordinary defenses [claim of right, alibi, infancy, necessity, and self-defense (which
1110-534: The protection of the First Amendment. Based on this determination, the court held § 2252A(a)(3)(B) to be unconstitutionally overbroad. The Eleventh Circuit further stated that the law was unconstitutionally vague, in that it did not adequately and specifically describe what sort of speech was criminally actionable. The Department of Justice appealed the Eleventh Circuit's ruling to the U.S. Supreme Court. In its May 2008 decision in United States v. Williams ,
1147-434: The subject of contentious litigation. Among the most controversial affirmative defenses is the insanity defense , whereby a criminal defendant seeks to be excused from criminal liability on the ground that a mental illness, at the time of the alleged crime, prevented him or her from understanding the wrongful nature of his or her actions. Because an affirmative defense requires an assertion of facts beyond those claimed by
PROTECT Act of 2003 - Misplaced Pages Continue
1184-430: The time limit expires, then the bill automatically becomes an act; however, if the Congress is adjourned at the end of this period, then the bill dies and cannot be reconsidered (see pocket veto ). If the president rejects a bill or resolution while the Congress is in session, a two-thirds vote of both houses of Congress is needed for reconsideration to be successful. Promulgation in the sense of publishing and proclaiming
1221-504: The virtual depictions are not obscene. Obscenity, including obscene depictions of children, either virtual or real, is unprotected speech. (Whorley was also previously convicted of other child sexual abuse related offenses.) Also in 2008, Christopher Handley , a "prolific collector" of manga , pleaded guilty to charges related to the PROTECT Act, in exchange for a six-month plea deal, five years of probation, and forfeiture of his collection of manga and anime that had been seized by police. He
1258-618: Was charged with 19 counts of "knowingly receiving" child pornography for printing out two cartoons and viewing others. His conviction was upheld in a 2–1 panel decision of the Fourth Circuit Court of Appeals in December 2008. This decision was consistent with the U.S. Supreme Court ruling in Ashcroft v. Free Speech Coalition in which the Supreme Court held that virtual child pornography was protected free speech, provided that
1295-437: Was facing a maximum sentence of up to twenty years. While not convicted by a jury, he was the first person charged under the PROTECT Act for the lone act of possessing art deemed obscene, in the form of seven manga graphic novels ordered from Japan. In the case United States v. Handley , district court Judge James E. Gritzner ruled that two parts of the PROTECT Act that criminalized certain depictions without having to go through
1332-576: Was followed by numerous other remarks over the next few days. The Child Obscenity and Pornography Prevention Act of 2002, H.R. 4623, was introduced by Rep. Lamar Smith on April 30, 2002 and referred to the House Committee on the Judiciary that same day. The bill passed the House by a vote of 413 - 8 on a motion to suspend the rules (1 representative voted present). It was received in the Senate
1369-402: Was unlawful and that the defendant's conduct was necessary to protect himself. Most affirmative defenses must be pleaded in a timely manner by a defendant in order for the court to consider them, or else they are considered waived by the defendant's failure to assert them. The classic unwaivable affirmative defense is lack of subject-matter jurisdiction . The issue of timely assertion is often
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