109th CONGRESS
1st Session
H. R. 3132
IN THE SENATE OF THE UNITED STATES
September 15, 2005
Received; read twice and referred to the Committee on the Judiciary
AN ACT
To make improvements to the national sex offender registration
program, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Children's Safety Act of
2005'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--SEX OFFENDER REGISTRATION AND NOTIFICATION ACT
Sec. 102. Declaration of purpose.
Subtitle A--Jacob Wetterling Sex Offender Registration and Notification
Program
Sec. 111. Relevant definitions, including Amie Zyla expansion of sex offender
definition and expanded inclusion of child predators.
Sec. 112. Registry requirements for jurisdictions.
Sec. 113. Registry requirements for sex offenders.
Sec. 114. Information required in registration.
Sec. 115. Duration of registration requirement.
Sec. 116. In person verification.
Sec. 117. Duty to notify sex offenders of registration requirements and
to register.
Sec. 118. Jessica Lunsford Address Verification Program.
Sec. 119. National Sex Offender Registry.
Sec. 120. Dru Sjodin National Sex Offender Public Website.
Sec. 121. Public access to sex offender information through the Internet.
Sec. 122. Megan Nicole Kanka and Alexandra Nicole Zapp Community Notification
Program.
Sec. 123. Actions to be taken when sex offender fails to comply.
Sec. 124. Immunity for good faith conduct.
Sec. 125. Development and availability of registry management software.
Sec. 126. Federal duty when State programs not minimally sufficient.
Sec. 127. Period for implementation by jurisdictions.
Sec. 128. Failure to comply.
Sec. 129. Sex Offender Management Assistance (SOMA) Program.
Sec. 130. Demonstration project for use of electronic monitoring devices.
Sec. 131. Bonus payments to States that implement electronic monitoring.
Sec. 132. National Center for Missing and Exploited Children access to
Interstate Identification Index.
Sec. 133. Limited immunity for National Center for Missing and Exploited
Children with respect to CyberTipline.
Sec. 134. Treatment and management of sex offenders in the Bureau of Prisons.
Sec. 135. Assistance in identification and location of sex offenders relocated
as a result of Hurricane Katrina.
Sec. 136. GAO studies on feasibility of using driver's license registration
processes as additional registration requirements for sex offenders.
Subtitle B--Criminal law enforcement of registration requirements
Sec. 151. Amendments to title 18, United States Code, relating to sex
offender registration.
Sec. 152. Investigation by United States Marshals of sex offender violations
of registration requirements.
Sec. 153. Sex offender apprehension grants.
Sec. 154. Use of any controlled substance to facilitate sex offense.
Sec. 155. Repeal of predecessor sex offender program.
Sec. 156. Assistance for prosecutions of cases cleared through use of
DNA backlog clearance funds.
Sec. 157. Authorization of additional appropriations.
Sec. 158. Grants to combat sexual abuse of children.
Sec. 159. Expansion of training and technology efforts.
Subtitle C--Children's Safety Office
Sec. 166. Authorization of appropriations.
Sec. 167. Nonmonetary assistance.
TITLE II--DNA FINGERPRINTING
Sec. 202. Expanding use of DNA to identify and prosecute sex offenders.
Sec. 203. Stopping Violent Predators Against Children.
Sec. 204. Model code on investigating missing persons and deaths.
TITLE III--PREVENTION AND DETERRENCE OF CRIMES AGAINST CHILDREN ACT OF
2005
Sec. 302. Assured punishment for violent crimes against children.
Sec. 303. Ensuring fair and expeditious Federal collateral review of convictions
for killing a child.
Sec. 305. Study of interstate tracking of persons convicted of or under
investigation for child abuse.
Sec. 306. Access to Federal crime information databases by educational
agencies for certain purposes.
TITLE IV--PROTECTION AGAINST SEXUAL EXPLOITATION OF CHILDREN ACT OF 2005
Sec. 402. Increased penalties for sexual offenses against children.
Sec. 403. Sense of Congress with respect to prosecutions under section
2422(b) of title 18, United States Code.
TITLE V--FOSTER CHILD PROTECTION AND CHILD SEXUAL PREDATOR DETERRENCE
Sec. 502. Requirement to complete background checks before approval of
any foster or adoptive placement and to check national crime information
databases and state child abuse registries; suspension and subsequent
elimination of opt-Out.
Sec. 503. Access to Federal crime information databases by child welfare
agencies for certain purposes.
Sec. 504. Penalties for coercion and enticement by sex offenders.
Sec. 505. Penalties for conduct relating to child prostitution.
Sec. 506. Penalties for sexual abuse.
Sec. 507. Sex offender submission to search as condition of release.
Sec. 508. Kidnapping penalties and jurisdiction.
Sec. 509. Marital communication and adverse spousal privilege.
Sec. 510. Abuse and neglect of Indian children.
Sec. 511. Civil commitment.
Sec. 512. Mandatory penalties for sex-trafficking of children.
Sec. 513. Sexual abuse of wards.
TITLE VI--MISCELLANEOUS PROVISION
Sec. 601. Ban on firearm for person convicted of a misdemeanor sex offense
against a minor.
TITLE VII--NATIONAL REGISTER OF CASES OF CHILD ABUSE OR NEGLECT
Sec. 701. National register of cases of child abuse or neglect.
TITLE VIII--CHILD PORNOGRAPHY PREVENTION ACT OF 2005
Sec. 803. Strengthening section 2257 to ensure that children are not exploited
in the production of pornography.
Sec. 804. Prevention of distribution of child pornography used as evidence
in prosecutions.
Sec. 805. Authorizing civil and criminal asset forfeiture in child exploitation
and obscenity cases.
Sec. 806. Prohibiting the production of obscenity as well as transportation,
distribution, and sale.
TITLE IX--PERSONAL DATA OF CHILDREN
Sec. 901. Misappropriation of data.
TITLE X--LOCAL LAW ENFORCEMENT HATE CRIMES PREVENTION
Sec. 1003. Definition of hate crime.
Sec. 1004. Support for criminal investigations and prosecutions by State
and local law enforcement officials.
Sec. 1005. Grant program.
Sec. 1006. Authorization for additional personnel to assist State and
local law enforcement.
Sec. 1007. Prohibition of certain hate crime Acts.
TITLE I--SEX OFFENDER REGISTRATION AND NOTIFICATION ACT
SEC. 101. SHORT TITLE.
This title may be cited as the `Sex Offender Registration and Notification
Act'.
SEC. 102. DECLARATION OF PURPOSE.
In response to the vicious attacks by violent sexual predators against the
victims listed below, Congress in this Act establishes a comprehensive national
system for the registration of sex offenders:
(1) Jacob Wetterling, who was 11 years old, was abducted in 1989 in Minnesota,
and remains missing.
(2) Megan Nicole Kanka, who was 7 years old, was abducted, sexually assaulted
and murdered in 1994, in New Jersey.
(3) Pam Lychner, who was 31 years old, was attacked by a career offender
in Houston, Texas.
(4) Jetseta Gage, who was 10 years old, was kidnapped, sexually assaulted,
and murdered in 2005 in Cedar Rapids, Iowa.
(5) Dru Sjodin, who was 22 years old, was sexually assaulted and murdered
in 2003, in North Dakota.
(6) Jessica Lunsford, who was 9 years, was abducted, sexually assaulted,
buried alive, and murdered in 2005, in Homosassa, Florida.
(7) Sarah Lunde, who was 13 years old, was strangled and murdered in 2005,
in Ruskin, Florida.
(8) Amie Zyla, who was 8 years old, was sexually assaulted in 1996 by
a juvenile offender in Waukesha, Wisconsin, and has become an advocate
for child victims and protection of children from juvenile sex offenders.
(9) Christy Ann Fornoff, who was 13 years old, was abducted, sexually
assaulted and murdered in 1984, in Tempe, Arizona.
(10) Alexandra Nicole Zapp, who was 30 years old, was brutally attacked
and murdered in a public restroom by a repeat sex offender in 2002, in
Bridgewater, Massachusetts.
(11) Polly Klaas, who was 12 years old, was abducted, sexually assaulted
and murdered in 1993 by a career offender in California.
Subtitle A--Jacob Wetterling Sex Offender Registration and Notification
Program
SEC. 111. RELEVANT DEFINITIONS, INCLUDING AMIE ZYLA EXPANSION OF SEX OFFENDER
DEFINITION AND EXPANDED INCLUSION OF CHILD PREDATORS.
In this title the following definitions apply:
(1) SEX OFFENDER REGISTRY- The term `sex offender registry' means a registry
of sex offenders, and a notification program, maintained by a jurisdiction.
(2) JURISDICTION- The term jurisdiction means any of the following:
(B) The District of Columbia.
(C) The Commonwealth of Puerto Rico.
(F) The Northern Mariana Islands.
(G) The United States Virgin Islands.
(H) To the extent provided and subject to the requirements of section
126, a federally recognized Indian tribe.
(3) AMIE ZYLA EXPANSION OF SEX OFFENDER DEFINITION- The term `sex offender'
means an individual who, either before or after the enactment of this
Act, was convicted of, or adjudicated a juvenile delinquent for, an offense
(other than an offense involving sexual conduct where the victim was at
least 13 years old and the offender was not more than 4 years older than
the victim and the sexual conduct was consensual, or an offense consisting
of consensual sexual conduct with an adult) whether Federal, State, local,
tribal, foreign (other than an offense based on conduct that would not
be a crime if the conduct took place in the United States), military,
juvenile or other, that is--
(A) a specified offense against a minor;
(B) a serious sex offense; or
(C) a misdemeanor sex offense against a minor.
(4) EXPANSION OF DEFINITION OF OFFENSE TO INCLUDE ALL CHILD PREDATORS-
The term `specified offense against a minor' means an offense against
a minor that involves any of the following:
(A) Kidnapping (unless committed by a parent).
(B) False imprisonment (unless committed by a parent).
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Possession, production, or distribution of child pornography.
(G) Criminal sexual conduct towards a minor.
(H) Any conduct that by its nature is a sexual offense against a minor.
(I) Any other offense designated by the Attorney General for inclusion
in this definition.
(J) Any attempt or conspiracy to commit an offense described in this
paragraph.
(5) SEX OFFENSE- The term `sex offense' means a criminal offense that
has an element involving a sexual act or sexual contact with another,
or an attempt or conspiracy to commit such an offense.
(6) SERIOUS SEX OFFENSE- The term `serious sex offense' means--
(A) a sex offense punishable under the law of a jurisdiction by imprisonment
for more than one year;
(B) any Federal offense under chapter 109A, 110, 117, or section 1591
of title 18, United States Code;
(C) an offense in a category specified by the Secretary of Defense under
section 115(a)(8)(C) of title I of Public Law 105-119 (10 U.S.C. 951
note);
(D) any other offense designated by the Attorney General for inclusion
in this definition.
(7) MISDEMEANOR SEX OFFENSE AGAINST A MINOR- The term `misdemeanor sex
offense against a minor' means a sex offense against a minor punishable
by imprisonment for not more than one year.
(8) STUDENT- The term `student' means an individual who enrolls or attends
an educational institution, including (whether public or private) a secondary
school, trade or professional school, and institution of higher education.
(9) EMPLOYEE- The term `employee' includes an individual who is self-employed
or works for any other entity, whether compensated or not.
(10) RESIDES- The term `resides' means, with respect to an individual,
the location of the individual's home or other place where the individual
lives.
(11) MINOR- The term `minor' means an individual who has not attained
the age of 18 years.
SEC. 112. REGISTRY REQUIREMENTS FOR JURISDICTIONS.
Each jurisdiction shall maintain a jurisdiction-wide sex offender registry
conforming to the requirements of this title. The Attorney General shall
issue guidelines and regulations to interpret and implement this title.
SEC. 113. REGISTRY REQUIREMENTS FOR SEX OFFENDERS.
(a) In General- A sex offender must register, and keep the registration
current, in each jurisdiction where the offender resides, where the offender
is an employee, and where the offender is a student.
(b) Initial Registration- The sex offender shall initially register--
(1) before completing a sentence of imprisonment with respect to the offense
giving rise to the registration requirement; or
(2) not later than 5 days after being sentenced for that offense, if the
sex offender is not sentenced to a term of imprisonment.
(c) Keeping the Registration Current- A sex offender must inform each jurisdiction
involved, not later than 5 days after each change of residence, employment,
or student status.
(d) Retroactive Duty to Register- The Attorney General shall prescribe a
method for the registration of sex offenders convicted before the enactment
of this Act or its effective date in a particular jurisdiction.
(e) State Penalty for Failure to Comply- Each jurisdiction, other than a
Federally recognized Indian tribe shall provide a criminal penalty, that
includes a maximum term of imprisonment that is greater than one year, and
a minimum term of imprisonment that is no less than 90 days, for the failure
of a sex offender to comply with the requirements of this title.
SEC. 114. INFORMATION REQUIRED IN REGISTRATION.
(a) Provided by the Offender- The sex offender must provide the following
information to the appropriate official for inclusion in the sex offender
registry:
(1) The name of the sex offender (including any alias used by the individual).
(2) The Social Security number of the sex offender.
(3) The address and location of the residence at which the sex offender
resides or will reside.
(4) The place where the sex offender is employed or will be employed.
(5) The place where the sex offender is a student or will be a student.
(6) The license plate number and description of any vehicle owned or operated
by the sex offender.
(7) A photograph of the sex offender.
(8) A set of fingerprints and palm prints of the sex offender, if the
appropriate official determines that the jurisdiction does not already
have available an accurate set.
(9) A DNA sample of the sex offender, if the appropriate official determines
that the jurisdiction does not already have available an appropriate DNA
sample.
(10) Any other information required by the Attorney General.
(b) Provided by the Jurisdiction- The jurisdiction in which the sex offender
registers shall include the following information in the registry for that
sex offender:
(1) A statement of the facts of the offense giving rise to the requirement
to register under this title, including the date of the offense, and whether
or not the sex offender was prosecuted as a juvenile at the time of the
offense.
(2) The criminal history of the sex offender.
(3) Any other information required by the Attorney General.
SEC. 115. DURATION OF REGISTRATION REQUIREMENT.
A sex offender shall keep the registration current--
(1) for the life of the sex offender, if the offense is a specified offense
against a minor, a serious sex offense, or a second misdemeanor sex offense
against a minor; and
(2) for a period of 20 years (but such 20-year period shall not include
any time the offender is in custody or civilly committed), in any other
case.
SEC. 116. IN PERSON VERIFICATION.
A sex offender shall appear in person and verify the information in each
registry in which that offender is required to be registered not less frequently
than once every six months.
SEC. 117. DUTY TO NOTIFY SEX OFFENDERS OF REGISTRATION REQUIREMENTS AND
TO REGISTER.
An appropriate official shall, shortly before release from custody of the
sex offender, or, if the sex offender is not in custody, immediately after
the sentencing of the sex offender, for the offense giving rise to the duty
to register--
(1) inform the sex offender of the duty to register and explain that duty;
(2) require the sex offender to read and sign a form stating that the
duty to register has been explained and that the sex offender understands
the registration requirement; and
(3) ensure that the sex offender is registered.
SEC. 118. JESSICA LUNSFORD ADDRESS VERIFICATION PROGRAM.
(a) Establishment- There is established the Jessica Lunsford Address Verification
Program (hereinafter in this section referred to as the `Program').
(b) Verification- In the Program, an appropriate official shall verify the
residence of each registered sex offender not less than monthly or, in the
case of a sex offender required to register because of a misdemeanor sex
offense against a minor, not less than quarterly.
(c) Use of Mailed Form Authorized- Such verification may be achieved by
mailing a nonforwardable verification form to the last known address of
the sex offender. The date of the mailing may be selected at random. The
sex offender must return the form, including a notarized signature, within
a set period of time. A failure to return the form as required may be a
failure to register for the purposes of this title.
SEC. 119. NATIONAL SEX OFFENDER REGISTRY.
The Attorney General shall maintain a national database at the Federal Bureau
of Investigation for each sex offender and other person required to register
in a jurisdiction's sex offender registry. The database shall be known as
the National Sex Offender Registry.
SEC. 120. DRU SJODIN NATIONAL SEX OFFENDER PUBLIC WEBSITE.
(a) Establishment- There is established the Dru Sjodin National Sex Offender
Public Website (hereinafter referred to as the `Website').
(b) Information to Be Provided- The Attorney General shall maintain the
Website as a site on the Internet which allows the public to obtain relevant
information for each sex offender by a single query in a form established
by the Attorney General.
(c) Electronic Forwarding- The Attorney General shall ensure (through the
National Sex Offender Registry or otherwise) that updated information about
a sex offender is immediately transmitted by electronic forwarding to all
relevant jurisdictions, unless the Attorney General determines that each
jurisdiction has so modified its sex offender registry and notification
program that there is no longer a need for the Attorney General to do.
SEC. 121. PUBLIC ACCESS TO SEX OFFENDER INFORMATION THROUGH THE INTERNET.
(a) In General- Except as provided in subsection (b), each jurisdiction
shall make available on the Internet all information about each sex offender
in the registry, except for the offender's Social Security number, the identity
of any victim, and any other information exempted from disclosure by the
Attorney General. The jurisdiction shall provide this information in a manner
that is readily accessible to the public.
(b) Exception- To the extent authorized by the Attorney General, a jurisdiction
need not make available on the Internet information about a sex offender
required to register for committing a misdemeanor sex offense against a
minor who has attained the age of 16 years.
SEC. 122. MEGAN NICOLE KANKA AND ALEXANDRA NICOLE ZAPP COMMUNITY NOTIFICATION
PROGRAM.
(a) Establishment of Program- There is established the Megan Nicole Kanka
and Alexandra Nicole Zapp Community Program (hereinafter in this section
referred to as the `Program').
(b) Notification- In the Program, as soon as possible, and in any case not
later than 5 days after a sex offender registers or updates a registration,
an appropriate official in the jurisdiction shall provide the information
in the registry (other than information exempted from disclosure by the
Attorney General) about that offender to the following:
(1) The Attorney General, who shall include that information in the National
Sex Offender Registry.
(2) Appropriate law enforcement agencies (including probation agencies,
if appropriate), and each school and public housing agency, in each area
in which the individual resides, is employed, or is a student.
(3) Each jurisdiction where the sex offender resides, works, or attends
school, and each jurisdiction from or to which a change of residence,
work, or student status occurs.
(4) Any agency responsible for conducting employment-related background
checks under section 3 of the National Child Protection Act of 1993 (42
U.S.C. 5119a).
(5) Social service entities responsible for protecting minors in the child
welfare system.
(6) Volunteer organizations in which contact with minors or other vulnerable
individuals might occur.
SEC. 123. ACTIONS TO BE TAKEN WHEN SEX OFFENDER FAILS TO COMPLY.
An appropriate official shall notify the Attorney General and appropriate
State and local law enforcement agencies of any failure by a sex offender
to comply with the requirements of a registry. The appropriate official,
the Attorney General, and each such State and local law enforcement agency
shall take any appropriate action to ensure compliance.
SEC. 124. IMMUNITY FOR GOOD FAITH CONDUCT.
The Federal Government, jurisdictions, political subdivisions of jurisdictions,
and their agencies, officers, employees, and agents shall be immune from
liability for good faith conduct under this title.
SEC. 125. DEVELOPMENT AND AVAILABILITY OF REGISTRY MANAGEMENT SOFTWARE.
The Attorney General shall develop and support software for use to establish,
maintain, publish, and share sex offender registries.
SEC. 126. FEDERAL DUTY WHEN STATE PROGRAMS NOT MINIMALLY SUFFICIENT.
If the Attorney General determines that a jurisdiction does not have a minimally
sufficient sex offender registration program, the Department of Justice
shall, to the extent practicable, carry out the duties imposed on that jurisdiction
by this title.
SEC. 127. PERIOD FOR IMPLEMENTATION BY JURISDICTIONS.
Each jurisdiction shall implement this title not later than 2 years after
the date of the enactment of this Act. However, the Attorney General may
authorize up to two one-year extensions of the deadline.
SEC. 128. FAILURE TO COMPLY.
(a) In General- For any fiscal year after the end of the period for implementation,
a jurisdiction that fails to implement this title shall not receive 10 percent
of the funds that would otherwise be allocated for that fiscal year to the
jurisdiction under each of the following programs:
(1) BYRNE- Subpart 1 of part E of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.), whether characterized
as the Edward Byrne Memorial State and Local Law Enforcement Assistance
Programs, the Edward Byrne Memorial Justice Assistance Grant Program,
or otherwise.
(2) LLEBG- The Local Government Law Enforcement Block Grants program.
(b) Reallocation- Amounts not allocated under a program referred to in paragraph
(1) to a jurisdiction for failure to fully implement this title shall be
reallocated under that program to jurisdictions that have not failed to
implement this title or may be reallocated to a jurisdiction from which
they were withheld to be used solely for the purpose of implementing this
title.
(c) Rule of Construction- The provisions of this title that are cast as
directions to jurisdictions or their officials constitute only conditions
required to avoid the reduction of Federal funding under this section.
SEC. 129. SEX OFFENDER MANAGEMENT ASSISTANCE (SOMA) PROGRAM.
(a) In General- The Attorney General shall establish and implement a Sex
Offender Management Assistance program (in this title referred to as the
`SOMA program') under which the Attorney General may award a grant to a
jurisdiction to offset the costs of implementing this title.
(b) Application- The chief executive of a jurisdiction shall, on an annual
basis, submit to the Attorney General an application in such form and containing
such information as the Attorney General may require.
(c) Bonus Payments for Prompt Compliance- A jurisdiction that, as determined
by the Attorney General, has implemented this title not later than two years
after the date of the enactment of this Act is eligible for a bonus payment.
Such payment shall be made under the SOMA program for the first fiscal year
beginning after that determination. The amount of the payment shall be--
(1) 10 percent of the total received by the jurisdiction under the SOMA
program for the preceding fiscal year, if implementation is not later
than one year after the date of enactment of this Act; and
(2) 5 percent of such total, if not later than two years after that date.
(d) Authorization of Appropriations- In addition to any amounts otherwise
authorized to be appropriated, there are authorized to be appropriated such
sums as may be necessary to the Attorney General, to be available only for
the SOMA program, for fiscal years 2006 through 2008.
SEC. 130. DEMONSTRATION PROJECT FOR USE OF ELECTRONIC MONITORING DEVICES.
(a) Project Required- The Attorney General shall carry out a demonstration
project under which the Attorney General makes grants to jurisdictions to
demonstrate the extent to which electronic monitoring devices can be used
effectively in a sex offender management program.
(b) Use of Funds- The jurisdiction may use grant amounts under this section
directly, or through arrangements with public or private entities, to carry
out programs under which the whereabouts of sex offenders are monitored
by electronic monitoring devices.
(c) Participants- Not more than 10 jurisdictions may participate in the
demonstration project at any one time.
(d) Factors- In selecting jurisdictions to participate in the demonstration
project, the Attorney General shall consider the following factors:
(1) The total number of sex offenders in the jurisdiction.
(2) The percentage of those sex offenders who fail to comply with registration
requirements.
(3) The threat to public safety posed by those sex offenders who fail
to comply with registration requirements.
(4) Any other factor the Attorney General considers appropriate.
(e) Duration- The Attorney General shall carry out the demonstration project
for fiscal years 2007, 2008, and 2009.
(f) Innovation- In making grants under this section, the Attorney General
shall ensure that different approaches to monitoring are funded to allow
an assessment of effectiveness.
(g) One-Time Report and Recommendations- Not later than April 1, 2008, the
Attorney General shall submit to Congress a report--
(1) assessing the effectiveness and value of programs funded by this section;
(2) comparing the cost-effectiveness of the electronic monitoring to reduce
sex offenses compared to other alternatives; and
(3) making recommendations for continuing funding and the appropriate
levels for such funding.
(h) Reports- The Attorney General shall submit to Congress an annual report
on the demonstration project. Each such report shall describe the activities
carried out by each participant, assess the effectiveness of those activities,
and contain any other information or recommendations that the Attorney General
considers appropriate.
(i) Authorization of Appropriations- There are authorized to be appropriated
to carry out this section such sums as may be necessary.
SEC. 131. BONUS PAYMENTS TO STATES THAT IMPLEMENT ELECTRONIC MONITORING.
(a) In General- A State that, within 3 years after the date of the enactment
of this Act, has in effect laws and policies described in subsection (b)
shall be eligible for a bonus payment described in subsection (c), to be
paid by the Attorney General from any amounts available to the Attorney
General for such purpose.
(b) Electronic Monitoring Laws and Policies-
(1) IN GENERAL- Laws and policies referred to in subsection (a) are laws
and policies that ensure that electronic monitoring is required of a person
if that person is released after being convicted of a State sex offense
in which an individual who has not attained the age of 18 years is the
victim.
(2) MONITORING REQUIRED- The monitoring required under paragraph (1) is
a system that actively monitors and identifies the person's location and
timely reports or records the person's presence near or within a crime
scene or in a prohibited area or the person's departure from specified
geographic limitations.
(3) DURATION- The electronic monitoring required by paragraph (1) shall
be required of the person--
(A) for the life of the person, if--
(i) an individual who has not attained the age of 12 years is the
victim; or
(ii) the person has a prior sex conviction (as defined in section
3559(e) of title 18, United States Code); and
(B) for the period during which the person is on probation, parole,
or supervised release for the offense, in any other case.
(4) STATE REQUIRED TO MONITOR ALL SEX OFFENDERS RESIDING IN STATE- In
addition, laws and policies referred to in subsection (a) also include
laws and policies that ensure that the State frequently monitors each
person residing in the State for whom electronic monitoring is required,
whether such monitoring is required under this section or under section
3563(a)(9) of title 18, United States Code.
(c) Bonus Payments- The bonus payment referred to in subsection (a) is a
payment equal to 10 percent of the funds that would otherwise be allocated
for that fiscal year to the jurisdiction under each of the following programs:
(1) BYRNE- Subpart 1 of part E of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.), whether characterized
as the Edward Byrne Memorial State and Local Law Enforcement Assistance
Programs, the Edward Byrne Memorial Justice Assistance Grant Program,
or otherwise.
(2) LLEBG- The Local Government Law Enforcement Block Grants program.
(d) Definition- In this section, the term `State sex offense' means any
criminal offense that is one of the following:
(1) A specified offense against a minor.
(2) A serious sex offense.
SEC. 132. NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN ACCESS TO
INTERSTATE IDENTIFICATION INDEX.
(a) In General- Notwithstanding any other provision of law, the Attorney
General shall ensure that the National Center for Missing and Exploited
Children has access to the Interstate Identification Index, to be used by
the Center only within the scope of its duties and responsibilities under
Federal law. The access provided under this section shall be authorized
only to personnel of the Center that have met all the requirements for access,
including training, certification, and background screening.
(b) Immunity- Personnel of the Center shall not be civilly or criminally
liable for any use or misuse of information in the Interstate Identification
Index if in good faith.
SEC. 133. LIMITED IMMUNITY FOR NATIONAL CENTER FOR MISSING AND EXPLOITED
CHILDREN WITH RESPECT TO CYBERTIPLINE.
Section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032)
is amended by adding at the end the following new subsection:
`(g) Limitation on Liability-
`(1) IN GENERAL- Except as provided in paragraphs (2) and (3), the National
Center for Missing and Exploited Children, including any of its directors,
officers, employees, or agents, is not liable in any civil or criminal
action arising from the performance of its CyberTipline responsibilities
and functions as defined by this section.
`(2) INTENTIONAL, RECKLESS, OR OTHER MISCONDUCT- Paragraph (1) does not
apply in an action in which a party proves that the National Center for
Missing and Exploited Children, or its officer, employee, or agent as
the case may be, engaged in intentional misconduct or acted, or failed
to act, with actual malice, with reckless disregard to a substantial risk
of causing injury without legal justification, or for a purpose unrelated
to the performance of responsibilities or functions under this section.
`(3) ORDINARY BUSINESS ACTIVITIES- Paragraph (1) does not apply to an
act or omission related to an ordinary business activity, such as an activity
involving general administration or operations, the use of motor vehicles,
or personnel management.'.
SEC. 134. TREATMENT AND MANAGEMENT OF SEX OFFENDERS IN THE BUREAU OF PRISONS.
Section 3621 of title 18, United States Code, is amended by adding at the
end the following new subsection:
`(f) Sex Offender Management-
`(1) IN GENERAL- The Bureau of Prisons shall make available appropriate
treatment to sex offenders who are in need of and suitable for treatment,
as follows:
`(A) SEX OFFENDER MANAGEMENT PROGRAMS- The Bureau of Prisons shall establish
non-residential sex offender management programs to provide appropriate
treatment, monitoring, and supervision of sex offenders and to provide
aftercare during pre-release custody.
`(B) RESIDENTIAL SEX OFFENDER TREATMENT PROGRAMS- The Bureau of Prisons
shall establish residential sex offender treatment programs to provide
treatment to sex offenders who volunteer for such programs and are deemed
by the Bureau of Prisons to be in need of and suitable for residential
treatment.
`(2) REGIONS- At least one sex offender management program under paragraph
(1)(A), and at least one residential sex offender treatment program under
paragraph (1)(B), shall be established in each region within the Bureau
of Prisons.
`(3) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
to the Bureau of Prisons for each fiscal year such sums as may be necessary
to carry out this subsection.'.
SEC. 135. ASSISTANCE IN IDENTIFICATION AND LOCATION OF SEX OFFENDERS RELOCATED
AS A RESULT OF HURRICANE KATRINA.
The Attorney General shall provide technical assistance to jurisdictions
to assist them in the identification and location of sex offenders relocated
as a result of Hurricane Katrina.
SEC. 136. GAO STUDIES ON FEASIBILITY OF USING DRIVER'S LICENSE REGISTRATION
PROCESSES AS ADDITIONAL REGISTRATION REQUIREMENTS FOR SEX OFFENDERS.
For the purposes of determining the feasibility of using driver's license
registration processes as additional registration requirements for sex offenders
to improve the level of compliance with sex offender registration requirements
for change of address upon relocation and other related updates of personal
information, the Congress requires the following studies:
(1) Not later than 180 days after the date of the enactment of this Act,
the Government Accountability Office shall complete a study for the Committee
on the Judiciary of the House of Representatives to survey a majority
of the States to assess the relative systems capabilities to comply with
a Federal law that required all State driver's license systems to automatically
access State and national databases of registered sex offenders in a form
similar to the requirement of the Nevada law described in paragraph (2).
The Government Accountability Office shall use the information drawn from
this survey, along with other expert sources, to determine what the potential
costs to the States would be if such a Federal law came into effect, and
what level of Federal grants would be required to prevent an unfunded
mandate. In addition, the Government Accountability Office shall seek
the views of Federal and State law enforcement agencies, including in
particular the Federal Bureau of Investigation, with regard to the anticipated
effects of such a national requirement, including potential for undesired
side effects in terms of actual compliance with this Act and related laws.
(2) Not later than October 2006, the Government Accountability Office
shall complete a study to evaluate the provisions of Chapter 507 of Statutes
of Nevada 2005 to determine--
(A) if those provisions are effective in increasing the registration
compliance rates of sex offenders;
(B) the aggregate direct and indirect costs for the state of Nevada
to bring those provisions into effect; and
(C) whether those provisions should be modified to improve compliance
by registered sex offenders.
Subtitle B--Criminal Law Enforcement of Registration Requirements
SEC. 151. AMENDMENTS TO TITLE 18, UNITED STATES CODE, RELATING TO SEX
OFFENDER REGISTRATION.
(a) Criminal Penalties for Nonregistration- Part I of title 18, United States
Code, is amended by inserting after chapter 109A the following:
`CHAPTER 109B--SEX OFFENDER AND CRIMES AGAINST CHILDREN REGISTRY
`2250. Failure to register.
`Sec. 2250. Failure to register
`Whoever is required to register under the Sex Offender Registration and
Notification Act and--
`(1) is a sex offender as defined for the purposes of that Act by reason
of a conviction under Federal law; or
`(2) thereafter travels in interstate or foreign commerce, or enters or
leaves, or resides in, Indian country;
and knowingly fails to register as required shall be fined under this title
and imprisoned not less than 5 years nor more than 20 years.'.
(b) Clerical Amendment- The table of chapters for part I of title 18, United
States Code, is amended by inserting after the item relating to chapter
109A the following new item:
--2250'.
(c) False Statement Offense- Section 1001(a) of title 18, United States
Code, is amended by adding at the end the following: `If the matter relates
to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then
the term of imprisonment imposed under this section shall be not less than
5 years nor more than 20 years.'.
(d) Probation- Paragraph (8) of section 3563(a) of title 18, United States
Code, is amended to read as follows:
`(8) for a person required to register under the Sex Offender Registration
and Notification Act, that the person comply with the requirements of
that Act; and'.
(e) Supervised Release- Section 3583 of title 18, United States Code, is
amended--
(1) in subsection (d), in the sentence beginning with `The court shall
order, as an explicit condition of supervised release for a person described
in section 4042(c)(4)', by striking `described in section 4042(c)(4)'
and all that follows through the end of the sentence and inserting `required
to register under the Sex Offender Registration and Notification Act that
the person comply with the requirements of that Act.'.
(A) by striking `2244(a)(1), 2244(a)(2)' and inserting `2243, 2244,
2245, 2250';
(B) by inserting `not less than 5,' after `any term of years'; and
(C) by adding at the end the following: `If a defendant required to
register under the Sex Offender Registration and Notification Act violates
the requirements of that Act or commits any criminal offense for which
imprisonment for a term longer than one year can be imposed, the court
shall revoke the term of supervised release and require the defendant
to serve a term of imprisonment under subsection (e)(3) without regard
to the exception contained therein. Such term shall be not less than
5 years, and if the offense was an offense under chapter 109A, 109B,
110, or 117, or section 1591, not less than 10 years.'.
(f) Duties of Bureau of Prisons- Paragraph (3) of section 4042(c) of title
18, United States Code, is amended to read as follows:
`(3) The Director of the Bureau of Prisons shall inform a person who is
released from prison and required to register under the Sex Offender Registration
and Notification Act of the requirements of that Act as they apply to that
person and the same information shall be provided to a person sentenced
to probation by the probation officer responsible for supervision of that
person.'.
(g) Conforming Amendments to Cross References- Paragraphs (1) and (2) of
section 4042(c) of title 18, United States Code, are each amended by striking
`(4)' and inserting `(3)'.
(h) Conforming Repeal of Deadwood- Paragraph (4) of section 4042(c) of title
18, United States Code, is repealed.
SEC. 152. INVESTIGATION BY UNITED STATES MARSHALS OF SEX OFFENDER VIOLATIONS
OF REGISTRATION REQUIREMENTS.
(a) In General- The Attorney General shall use the authority provided in
section 566(e)(1)(B) of title 28, United States Code, to assist States and
other jurisdictions in locating and apprehending sex offenders who violate
sex offender registration requirements.
(b) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary for fiscal years 2006 through 2008 to implement
this section.
SEC. 153. SEX OFFENDER APPREHENSION GRANTS.
Title I of the Omnibus Crime Control and Safe Streets Act of 1968 is amended
by adding at the end the following new part:
`PART JJ--SEX OFFENDER APPREHENSION GRANTS
`SEC. 3011. AUTHORITY TO MAKE SEX OFFENDER APPREHENSION GRANTS.
`(a) In General- From amounts made available to carry out this part, the
Attorney General may make grants to States, units of local government, Indian
tribal governments, other public and private entities, and multi-jurisdictional
or regional consortia thereof for activities specified in subsection (b).
`(b) Covered Activities- An activity referred to in subsection (a) is any
program, project, or other activity to assist a State in enforcing sex offender
registration requirements.
`SEC. 3012. AUTHORIZATION OF APPROPRIATIONS.
`There are authorized to be appropriated such sums as may be necessary for
fiscal years 2006 through 2008 to carry out this part.'.
SEC. 154. USE OF ANY CONTROLLED SUBSTANCE TO FACILITATE SEX OFFENSE.
(a) Increased Punishment- Chapter 109A of title 18, United States Code,
is amended by adding at the end the following:
`Sec. 2249. Use of any controlled substance to facilitate sex offense
`(a) Whoever, knowingly uses a controlled substance to substantially impair
the ability of a person to appraise or control conduct, in order to commit
a sex offense, other than an offense where such use is an element of the
offense, shall, in addition to the punishment provided for the sex offense,
be imprisoned for any term of years not less than 10, or for life.
`(b) As used in this section, the term `sex offense' means an offense under
this chapter other than an offense under this section.'.
(b) Amendment to Table- The table of sections at the beginning of chapter
109A of title 18, United States Code, is amended by adding at the end the
following new item:
`2249. Use of any controlled substance to facilitate sex offense.'.
SEC. 155. REPEAL OF PREDECESSOR SEX OFFENDER PROGRAM.
Sections 170101 (42 U.S.C. 14071) and 170102 (42 U.S.C. 14072) of the Violent
Crime Control and Law Enforcement Act of 1994, and section 8 of the Pam
Lychner Sexual Offender Tracking and Identification Act of 1996 (42 U.S.C.
14073), are repealed.
SEC. 156. ASSISTANCE FOR PROSECUTIONS OF CASES CLEARED THROUGH USE OF
DNA BACKLOG CLEARANCE FUNDS.
(a) In General- The Attorney General may make grants to train and employ
personnel to help investigate and prosecute cases cleared through use of
funds provided for DNA backlog elimination.
(b) Authorization- There are authorized to be appropriated such sums as
may be necessary for each of fiscal years 2006 through 2010 to carry out
this section.
SEC. 157. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS.
In addition to any other amounts authorized by law, there are authorized
to be appropriated for grants to the American Prosecutors Research Institute
under section 214A of the Victims of Child Abuse Act of 1990 (42 U.S.C.
13003) $7,500,000 for each of fiscal years 2006 through 2010.
SEC. 158. GRANTS TO COMBAT SEXUAL ABUSE OF CHILDREN.
(a) In General- The Bureau of Justice Assistance shall make grants to law
enforcement agencies for purposes of this section. The Bureau shall make
such a grant--
(1) to each law enforcement agency that serves a jurisdiction with 50,000
or more residents; and
(2) to each law enforcement agency that serves a jurisdiction with fewer
than 50,000 residents, upon a showing of need.
(b) Use of Grant Amounts- Grants under this section may be used by the law
enforcement agency to--
(1) hire additional law enforcement personnel, or train existing staff
to combat the sexual abuse of children through community education and
outreach, investigation of complaints, enforcement of laws relating to
sex offender registries, and management of released sex offenders;
(2) investigate the use of the Internet to facilitate the sexual abuse
of children; and
(3) purchase computer hardware and software necessary to investigate sexual
abuse of children over the Internet, access local, State, and Federal
databases needed to apprehend sex offenders, and facilitate the creation
and enforcement of sex offender registries.
(c) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary for fiscal years 2006 through 2008 to carry
out this section.
SEC. 159. EXPANSION OF TRAINING AND TECHNOLOGY EFFORTS.
(a) Training- The Attorney General, in consultation with the Office of Juvenile
Justice and Delinquency Prevention, shall--
(1) expand training efforts with Federal, State, and local law enforcement
officers and prosecutors to effectively respond to the threat to children
and the public posed by sex offenders who use the internet and technology
to solicit or otherwise exploit children;
(2) facilitate meetings, between corporations that sell computer hardware
and software or provide services to the general public related to use
of the Internet, to identify problems associated with the use of technology
for the purpose of exploiting children;
(3) host national conferences to train Federal, State, and local law enforcement
officers, probation and parole officers, and prosecutors regarding pro-active
approaches to monitoring sex offender activity on the Internet;
(4) develop and distribute, for personnel listed in paragraph (3), information
regarding multi-disciplinary approaches to holding offenders accountable
to the terms of their probation, parole, and sex offender registration
laws; and
(5) partner with other agencies to improve the coordination of joint investigations
among agencies to effectively combat on-line solicitation of children
by sex offenders.
(b) Technology- The Attorney General, in consultation with the Office of
Juvenile Justice and Delinquency Prevention, shall--
(1) deploy, to all Internet Crimes Against Children Task Forces and their
partner agencies, technology modeled after the Canadian Child Exploitation
Tracking System; and
(2) conduct training in the use of that technology.
(c) Report- Not later than July 1, 2006, the Attorney General, in consultation
with the Office of Juvenile Justice and Delinquency Prevention, shall submit
to Congress a report on the activities carried out under this section. The
report shall include any recommendations that the Attorney General, in consultation
with the Office, considers appropriate.
(d) Authorization of Appropriations- There are authorized to be appropriated
to the Attorney General, for fiscal year 2006--
(1) $1,000,000 to carry out subsection (a); and
(2) $2,000,000 to carry out subsection (b).
Subtitle C--Children's Safety Office
SEC. 161. ESTABLISHMENT.
There is hereby established within the Department of Justice, under the
general authority of the Attorney General, a Children's Safety Office.
SEC. 162. PURPOSE.
The purpose of the Office is to administer the sex offender registration
program under subtitle A and to coordinate with other departments, agencies,
and offices in preventing sexual abuse of children, prosecuting child sex
offenders, and tracking child abusers post-conviction.
SEC. 163. DIRECTOR.
(a) Advice and Consent- At the head of the Office shall be a Director, appointed
by the President, by and with the advice and consent of the Senate. The
Director shall report directly to the Attorney General.
(b) Qualifications- The Director shall be appointed from among distinguished
individuals who have--
(1) proven academic, management, and leadership credentials;
(2) a superior record of achievement; and
(3) training or expertise in criminal law or the exploitation of children,
or both.
(c) Duties- The Director shall have the following duties:
(1) To maintain liaison with the judicial branches of the Federal and
State Governments on matters relating to children's safety from sex offenders.
(2) To provide information to the President, the Congress, the Judiciary,
State and local governments, and the general public on matters relating
to children's safety from sex offenders.
(3) To serve, when requested by the Attorney General, as the representative
of the Department of Justice on domestic task forces, committees, or commissions
addressing policy or issues relating to children's safety from sex offenders.
(4) To provide technical assistance, coordination, and support to--
(A) other components of the Department of Justice, in efforts to develop
policy and to enforce Federal laws relating to sexual assaults against
children, including the litigation of civil and criminal actions relating
to enforcing such laws; and
(B) other Federal, State, and local agencies, in efforts to develop
policy, provide technical assistance, and improve coordination among
agencies carrying out efforts to eliminate sexual assaults against children.
(5) To exercise such other powers and functions as may be vested in the
Director pursuant to this or any other Act or by delegation of the Attorney
General in accordance with law.
(6) To establish such rules, regulations, guidelines, and procedures as
are necessary to carry out any function of the Office.
(A) the grant programs under subtitle A; and
(B) any other grant programs of the Department of Justice to the extent
they relate to sexual assaults against children.
SEC. 164. ANNUAL REPORT.
Not later than 180 days after the end of each fiscal year for which grants
are made under subtitle A, the Attorney General shall submit to the Committee
on the Judiciary of the House of Representatives and the Committee on the
Judiciary of the Senate a report that includes, for each State or other
jurisdiction--
(1) the number of grants made and funds distributed under subtitle A;
(2) a summary of the purposes for which those grants were provided and
an evaluation of their progress;
(3) a statistical summary of persons served, detailing the nature of victimization,
and providing data on age, sex, relationship of victim to offender, geographic
distribution, race, ethnicity, language, and disability, and the membership
of persons served in any underserved population; and
(4) an evaluation of the effectiveness of programs funded under subtitle
A.
SEC. 165. STAFF.
The Attorney General shall ensure that the Director has adequate staff to
support the Director in carrying out the responsibilities of the Director.
SEC. 166. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are necessary to carry
out this subtitle.
SEC. 167. NONMONETARY ASSISTANCE.
In addition to the assistance provided under subtitle A, the Attorney General
may request any Federal agency to use its authorities and the resources
granted to it under Federal law (including personnel, equipment, supplies,
facilities, and managerial, technical, and advisory services) in support
of State and local assistance efforts consistent with the purposes of this
title.
TITLE II--DNA FINGERPRINTING
SEC. 201. SHORT TITLE.
This title may be cited as the `DNA Fingerprinting Act of 2005'.
SEC. 202. EXPANDING USE OF DNA TO IDENTIFY AND PROSECUTE SEX OFFENDERS.
(a) Expansion of National DNA Index System- Section 210304 of the DNA Identification
Act of 1994 (42 U.S.C. 14132) is amended--
(1) in subsection (a)(1)(C), by striking `, provided' and all that follows
through `System'; and
(2) by striking subsections (d) and (e).
(b) DNA Sample Collection From Persons Arrested or Detained Under Federal
Authority-
(1) IN GENERAL- Section 3 of the DNA Analysis Backlog Elimination Act
of 2000 (42 U.S.C. 14135a) is amended--
(i) in paragraph (1), by striking `The Director' and inserting the
following:
`(A) The Attorney General may, as provided by the Attorney General by
regulation, collect DNA samples from individuals who are arrested, detained,
or convicted under the authority of the United States. The Attorney
General may delegate this function within the Department of Justice
as provided in section 510 of title 28, United States Code, and may
also authorize and direct any other agency of the United States that
arrests or detains individuals or supervises individuals facing charges
to carry out any function and exercise any power of the Attorney General
under this section.
(ii) in paragraphs (3) and (4), by striking `Director of the Bureau
of Prisons' each place it appears and inserting `Attorney General,
the Director of the Bureau of Prisons,'; and
(B) in subsection (b), by striking `Director of the Bureau of Prisons'
and inserting `Attorney General, the Director of the Bureau of Prisons,'.
(2) CONFORMING AMENDMENT- Subsections (b) and (c)(1)(A) of section 3142
of title 18, United States Code, are each amended by inserting `and subject
to the condition that the person cooperate in the collection of a DNA
sample from the person if the collection of such a sample is authorized
pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000
(42 U.S.C. 14135a)' after `period of release'.
(c) Tolling of Statute of Limitations in Sexual Abuse Cases- Section 3297
of title 18, United States Code, is amended by striking `except for a felony
offense under chapter 109A,'.
SEC. 203. STOPPING VIOLENT PREDATORS AGAINST CHILDREN.
In carrying out Acts of Congress relating to DNA databases, the Attorney
General shall give appropriate consideration to the need for the collection
and testing of DNA to stop violent predators against children.
SEC. 204. MODEL CODE ON INVESTIGATING MISSING PERSONS AND DEATHS.
(a) Model Code Required- Not later than 60 days after the date of the enactment
of this Act, the Attorney General shall publish a model code setting forth
procedures to be followed by law enforcement officers when investigating
a missing person or a death. The procedures shall include the use of DNA
analysis to help locate missing persons and to help identify human remains.
(b) Sense of Congress- It is the sense of Congress that each State should,
not later than 1 year after the date on which the Attorney General publishes
the model code, enact laws implementing the model code.
(c) GAO Study- Not later than 2 years after the date on which the Attorney
General publishes the model code, the Comptroller General shall submit to
Congress a report on the extent to which States have implemented the model
code. The report shall, for each State--
(1) describe the extent to which the State has implemented the model code;
and
(2) to the extent the State has not implemented the model code, describe
the reasons why the State has not done so.
TITLE III--PREVENTION AND DETERRENCE OF CRIMES AGAINST CHILDREN ACT OF
2005
SEC. 301. SHORT TITLE.
This title may be cited as the `Prevention and Deterrence of Crimes Against
Children Act of 2005'.
SEC. 302. ASSURED PUNISHMENT FOR VIOLENT CRIMES AGAINST CHILDREN.
(a) Special Sentencing Rule- Subsection (d) of section 3559 of title 18,
United States Code, is amended to read as follows:
`(d) Mandatory Minimum Terms of Imprisonment for Violent Crimes Against
Children- A person who is convicted of a felony crime of violence against
the person of an individual who has not attained the age of 18 years shall,
unless a greater mandatory minimum sentence of imprisonment is otherwise
provided by law and regardless of any maximum term of imprisonment otherwise
provided for the offense--
`(1) if the crime of violence results in the death of a person who has
not attained the age of 18 years, be sentenced to death or life in prison;
`(2) if the crime of violence is kidnapping, aggravated sexual abuse,
sexual abuse, or maiming, or results in serious bodily injury (as defined
in section 2119(2)) be imprisoned for life or any term of years not less
than 30;
`(3) if the crime of violence results in bodily injury (as defined in
section 1365) or is an offense under paragraphs (1), (2), or (5) of section
2244(a), be imprisoned for life or for any term of years not less than
20;
`(4) if a dangerous weapon was used during and in relation to the crime
of violence, be imprisoned for life or for any term of years not less
than 15; and
`(5) in any other case, be imprisoned for life or for any term of years
not less than 10.'.
SEC. 303. ENSURING FAIR AND EXPEDITIOUS FEDERAL COLLATERAL REVIEW OF CONVICTIONS
FOR KILLING A CHILD.
(a) Limits on Cases- Section 2254 of title 28, United States Code, is amended
by adding at the end the following:
`(j)(1) A court, justice, or judge shall not have jurisdiction to consider
any claim relating to the judgment or sentence in an application described
under paragraph (2), unless the applicant shows that the claim qualifies
for consideration on the grounds described in subsection (e)(2). Any such
application that is presented to a court, justice, or judge other than a
district court shall be transferred to the appropriate district court for
consideration or dismissal in conformity with this subsection, except that
a court of appeals panel must authorize any second or successive application
in conformity with section 2244 before any consideration by the district
court.
`(2) This subsection applies to an application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judgment of a State court
for a crime that involved the killing of a individual who has not attained
the age of 18 years.
`(3) For an application described in paragraph (2), the following requirements
shall apply in the district court:
`(A) Any motion by either party for an evidentiary hearing shall be filed
and served not later than 90 days after the State files its answer or,
if no timely answer is filed, the date on which such answer is due.
`(B) Any motion for an evidentiary hearing shall be granted or denied
not later than 30 days after the date on which the party opposing such
motion files a pleading in opposition to such motion or, if no timely
pleading in opposition is filed, the date on which such pleading in opposition
is due.
`(C) Any evidentiary hearing shall be--
`(i) convened not less than 60 days after the order granting such hearing;
and
`(ii) completed not more than 150 days after the order granting such
hearing.
`(D) A district court shall enter a final order, granting or denying the
application for a writ of habeas corpus, not later than 15 months after
the date on which the State files its answer or, if no timely answer is
filed, the date on which such answer is due, or not later than 60 days
after the case is submitted for decision, whichever is earlier.
`(E) If the district court fails to comply with the requirements of this
paragraph, the State may petition the court of appeals for a writ of mandamus
to enforce the requirements. The court of appeals shall grant or deny
the petition for a writ of mandamus not later than 30 days after such
petition is filed with the court.
`(4) For an application described in paragraph (2), the following requirements
shall apply in the court of appeals:
`(A) A timely filed notice of appeal from an order issuing a writ of habeas
corpus shall operate as a stay of that order pending final disposition
of the appeal.
`(B) The court of appeals shall decide the appeal from an order granting
or denying a writ of habeas corpus--
`(i) not later than 120 days after the date on which the brief of the
appellee is filed or, if no timely brief is filed, the date on which
such brief is due; or
`(ii) if a cross-appeal is filed, not later than 120 days after the
date on which the appellant files a brief in response to the issues
presented by the cross-appeal or, if no timely brief is filed, the date
on which such brief is due.
`(C)(i) Following a decision by a panel of the court of appeals under
subparagraph (B), a petition for panel rehearing is not allowed, but rehearing
by the court of appeals en banc may be requested. The court of appeals
shall decide whether to grant a petition for rehearing en banc not later
than 30 days after the date on which the petition is filed, unless a response
is required, in which case the court shall decide whether to grant the
petition not later than 30 days after the date on which the response is
filed or, if no timely response is filed, the date on which the response
is due.
`(ii) If rehearing en banc is granted, the court of appeals shall make
a final determination of the appeal not later than 120 days after the
date on which the order granting rehearing en banc is entered.
`(D) If the court of appeals fails to comply with the requirements of
this paragraph, the State may petition the Supreme Court or a justice
thereof for a writ of mandamus to enforce the requirements.
`(5)(A) The time limitations under paragraphs (3) and (4) shall apply to
an initial application described in paragraph (2), any second or successive
application described in paragraph (2), and any redetermination of an application
described in paragraph (2) or related appeal following a remand by the court
of appeals or the Supreme Court for further proceedings.
`(B) In proceedings following remand in the district court, time limits
running from the time the State files its answer under paragraph (3) shall
run from the date the remand is ordered if further briefing is not required
in the district court. If there is further briefing following remand in
the district court, such time limits shall run from the date on which a
responsive brief is filed or, if no timely responsive brief is filed, the
date on which such brief is due.
`(C) In proceedings following remand in the court of appeals, the time limit
specified in paragraph (4)(B) shall run from the date the remand is ordered
if further briefing is not required in the court of appeals. If there is
further briefing in the court of appeals, the time limit specified in paragraph
(4)(B) shall run from the date on which a responsive brief is filed or,
if no timely responsive brief is filed, from the date on which such brief
is due.
`(6) The failure of a court to meet or comply with a time limitation under
this subsection shall not be a ground for granting relief from a judgment
of conviction or sentence, nor shall the time limitations under this subsection
be construed to entitle a capital applicant to a stay of execution, to which
the applicant would otherwise not be entitled, for the purpose of litigating
any application or appeal.
`(k) Sentencing Claims- A court, justice, or judge shall not have jurisdiction
to consider an application with respect to an error relating to the applicant's
sentence or sentencing that has been found to be harmless or not prejudicial
in State court proceedings, or that was found by a State court to be procedurally
barred, unless a determination that the error is not structural is contrary
to clearly established Federal law, as determined by the Supreme Court of
the United States.'.
(b) Victims' Rights in Habeas Cases- Section 3771(b) of title 18, United
States Code, is amended by adding at the end the following: `The rights
established for crime victims by this section shall also be extended in
a Federal habeas corpus proceeding arising out of a State conviction to
victims of the State offense at issue.'.
(c) Application to Pending Cases-
(1) IN GENERAL- The amendment made by this section apply to cases pending
on the date of the enactment of this Act as well as to cases commenced
on and after that date.
(2) SPECIAL RULE FOR TIME LIMITS- In a case pending on the date of the
enactment of this Act, if the amendment made by subsection (a) provides
that a time limit runs from an event or time that has occurred before
that date, the time limit shall instead run from that date.
SEC. 304. STATISTICS.
(a) Coverage- Subsection (b)(1) of the first section of the Hate Crime Statistics
Act (28 U.S.C. 534 note) is amended by inserting `gender,' before `or ethnicity'.
(b) Data- Subsection (b)(5) of the first section of the Hate Crime Statistics
Act (28 U.S.C. 534 note) is amended by inserting `, including data about
crimes committed by and directed against juveniles' after `data acquired
under this section'.
SEC. 305. STUDY OF INTERSTATE TRACKING OF PERSONS CONVICTED OF OR UNDER
INVESTIGATION FOR CHILD ABUSE.
(a) STUDY- The Attorney General, in consultation with the Secretary of Health
and Human Services, shall study the establishment of a nationwide interstate
tracking system of persons convicted of, or under investigation for, child
abuse. The study shall include an analysis, along with the costs and benefits,
of various mechanisms for establishing an interstate tracking system, and
include the extent to which existing registries could be used.
(b) REPORT- Not later than 90 days after the date of the enactment of this
Act, the Secretary shall report to the Congress the results of the study
under this section.
SEC. 306. ACCESS TO FEDERAL CRIME INFORMATION DATABASES BY EDUCATIONAL
AGENCIES FOR CERTAIN PURPOSES.
(a) In General- The Attorney General of the United States shall, upon request
of the chief executive officer of a State, conduct fingerprint-based checks
of the national crime information databases (as defined in section 534(e)(3)(A)
of title 28, United States Code), pursuant to a request submitted by a local
educational agency or State educational agency in that State, on individuals
under consideration for employment by the agency in a position in which
the individual would work with or around children. Where possible, the check
shall include a fingerprint-based check of State criminal history databases.
The Attorney General and the States may charge any applicable fees for these
checks.
(b) Protection of Information- An individual having information derived
as a result of a check under subsection (a) may release that information
only to an appropriate officer of a local educational agency or State educational
agency, or to another person authorized by law to receive that information.
(c) Criminal Penalties- An individual who knowingly exceeds the authority
in subsection (a), or knowingly releases information in violation of subsection
(b), shall be imprisoned not more than 10 years or fined under title 18,
United States Code, or both.
(d) Definition- In this section, the terms `local educational agency' and
`State educational agency' have the meanings given to those terms in section
9101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).
TITLE IV--PROTECTION AGAINST SEXUAL EXPLOITATION OF CHILDREN ACT OF 2005
SEC. 401. SHORT TITLE.
This title may be cited as the `Protection Against Sexual Exploitation of
Children Act of 2005'.
SEC. 402. INCREASED PENALTIES FOR SEXUAL OFFENSES AGAINST CHILDREN.
(a) Sexual Abuse and Contact-
(1) AGGRAVATED SEXUAL ABUSE OF CHILDREN- Section 2241(c) of title 18,
United States Code, is amended by striking `, imprisoned for any term
of years or life, or both.' and inserting `and imprisoned for not less
than 30 years or for life.'.
(2) ABUSIVE SEXUAL CONTACT WITH CHILDREN- Section 2244 of chapter 109A
of title 18, United States Code, is amended--
(i) in paragraph (1), by inserting `subsection (a) or (b) of' before
`section 2241';
(ii) by striking `or' at the end of paragraph (3);
(iii) by striking the period at the end of paragraph (4) and inserting
`; or'; and
(iv) by inserting after paragraph (4) the following:
`(5) subsection (c) of section 2241 of this title had the sexual contact
been a sexual act, shall be fined under this title and imprisoned for
not less than 10 years and not more than 25 years.'; and
(B) in subsection (c), by inserting `(other than subsection (a)(5))'
after `violates this section'.
(3) SEXUAL ABUSE OF CHILDREN RESULTING IN DEATH- Section 2245 of title
18, United States Code, is amended--
(A) by inserting `, chapter 110, chapter 117, or section 1591' after
`this chapter';
(B) by striking `A person' and inserting `(a) In General- A person';
and
(C) by adding at the end the following:
`(b) Offenses Involving Young Children- A person who, in the course of an
offense under this chapter, chapter 110, chapter 117, or section 1591 engages
in conduct that results in the death of a person who has not attained the
age of 12 years, shall be punished by death or imprisoned for not less than
30 years or for life.'.
(4) DEATH PENALTY AGGRAVATING FACTOR- Section 3592(c)(1) of title 18,
United States Code, is amended by inserting `section 2245 (sexual abuse
resulting in death),' after `(wrecking trains),'.
(b) Sexual Exploitation and Other Abuse of Children-
(1) SEXUAL EXPLOITATION OF CHILDREN- Section 2251(e) of title 18, United
States Code, is amended--
(A) by striking `15 years nor more than 30 years' and inserting `25
years or for life';
(B) by inserting `section 1591,' after `this chapter,' the first place
it appears;
(C) by striking `the sexual exploitation of children' the first place
it appears and inserting `aggravated sexual abuse, sexual abuse, abusive
sexual contact involving a minor or ward, or sex trafficking of children,
or the production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography';
(D) by striking `not less than 25 years nor more than 50 years, but
if such person has 2 or more prior convictions under this chapter, chapter
71, chapter 109A, or chapter 117, or under section 920 of title 10 (article
120 of the Uniform Code of Military Justice), or under the laws of any
State relating to the sexual exploitation of children, such person shall
be fined under this title and imprisoned not less than 35 years nor
more than life.' and inserting `life.'; and
(E) by striking `any term of years or for life' and inserting `not less
than 30 years or for life'.
(2) ACTIVITIES RELATING TO MATERIAL INVOLVING THE SEXUAL EXPLOITATION
OF CHILDREN- Section 2252(b) of title 18, United States Code, is amended--
(i) by striking `paragraphs (1)' and inserting `paragraph (1)';
(ii) by inserting `section 1591,' after `this chapter,';
(iii) by inserting `, or sex trafficking of children' after `pornography';
(iv) by striking `5 years and not more than 20 years' and inserting
`25 years or for life'; and
(v) by striking `not less than 15 years nor more than 40 years.' and
inserting `life.'; and
(i) by striking `or imprisoned not more than 10 years' and inserting
`and imprisoned for not less than 10 nor more than 30 years';
(ii) by striking `, or both'; and
(iii) by striking `10 years nor more than 20 years.' and inserting
`30 years or for life.'.
(3) ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR CONTAINING CHILD PORNOGRAPHY-
Section 2252A(b) of title 18, United States Code, is amended--
(i) by inserting `section 1591,' after `this chapter,';
(ii) by inserting `, or sex trafficking of children' after `pornography';
(iii) by striking `5 years and not more than 20 years' and inserting
`25 years or for life'; and
(iv) by striking `not less than 15 years nor more than 40 years' and
inserting `life'; and
(i) by striking `or imprisoned not more than 10 years, or both' and
inserting `and imprisoned for not less than 10 nor more than 30 years';
and
(ii) by striking `10 years nor more than 20 years' and inserting `30
years or for life'.
(4) USING MISLEADING DOMAIN NAMES TO DIRECT CHILDREN TO HARMFUL MATERIAL
ON THE INTERNET- Section 2252B(b) of title 18, United States Code, is
amended by striking `or imprisoned not more than 4 years, or both' and
inserting ` and imprisoned not less than 10 nor more than 30 years'.
(5) PRODUCTION OF SEXUALLY EXPLICIT DEPICTIONS OF CHILDREN- Section 2260(c)
of title 18, United States Code, is amended by striking paragraphs (1)
and (2) and inserting the following:
`(1) shall be fined under this title and imprisoned for any term or years
not less than 25 or for life; and
`(2) if the person has a prior conviction under this chapter, section
1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of
title 10 (article 120 of the Uniform Code of Military Justice), shall
be fined under this title and imprisoned for life.'.
(c) Mandatory Life Imprisonment for Certain Repeated Sex Offenses Against
Children- Section 3559(e)(2)(A) of title 18, United States Code, is amended--
(1) by striking `or 2423(a)' and inserting `2423(a)'; and
(2) by inserting `, 2423(b) (relating to travel with intent to engage
in illicit sexual conduct), 2423(c) (relating to illicit sexual conduct
in foreign places), or 2425 (relating to use of interstate facilities
to transmit information about a minor)' after `minors)'.
SEC. 403. SENSE OF CONGRESS WITH RESPECT TO PROSECUTIONS UNDER SECTION
2422(b) OF TITLE 18, UNITED STATES CODE.
(a) Findings- Congress finds that--
(1) a jury convicted Jan P. Helder, Jr., of using a computer to attempt
to entice an individual who had not attained the age of 18 years to engage
in unlawful sexual activity;
(2) during the trial, evidence showed that Jan Helder had engaged in an
online chat with an individual posing as a minor, who unbeknownst to him,
was an undercover law enforcement officer;
(3) notwithstanding, Dean Whipple, District Judge for the Western District
of Missouri, acquitted Jan Helder, ruling that because he did not, in
fact, communicate with a minor, he did not commit a crime;
(4) the 9th Circuit Court of Appeals, in United States v. Jeffrey Meek,
specifically addressed the question facing Judge Whipple and concurred
with the 5th and 11th Circuit Courts in finding that `an actual minor
victim is not required for an attempt conviction under 18 U.S.C. 2422(b).';
(5) the Department of Justice has successfully used evidence obtained
through undercover law enforcement to prosecute and convict perpetrators
who attempted to solicit children on the Internet; and
(6) the Department of Justice states, `Online child pornography/child
sexual exploitation is the most significant cyber crime problem confronting
the FBI that involves crimes against children'.
(b) Sense of Congress- It is the sense of Congress that--
(1) it is a crime under section 2422(b) of title 18, United States Code,
to use a facility of interstate commerce to attempt to entice an individual
who has not attained the age of 18 years into unlawful sexual activity,
even if the perpetrator incorrectly believes that the individual has not
attained the age of 18 years;
(2) well-established caselaw has established that section 2422(b) of title
18, United States Code, criminalizes any attempt to entice a minor into
unlawful sexual activity, even if the perpetrator incorrectly believes
that the individual has not attained the age of 18 years;
(3) the Department of Justice should appeal Judge Whipple's decision in
United States v. Helder, Jr. and aggressively continue to track down and
prosecute sex offenders on the Internet; and
(4) Judge Whipple's decision in United States v. Helder, Jr. should be
overturned in light of the law as it is written, the intent of Congress,
and well-established caselaw.
TITLE V--FOSTER CHILD PROTECTION AND CHILD SEXUAL PREDATOR DETERRENCE
SEC. 501. SHORT TITLE.
This title may be cited as the `Foster Child Protection and Child Sexual
Predator Sentencing Act of 2005'.
SEC. 502. REQUIREMENT TO COMPLETE BACKGROUND CHECKS BEFORE APPROVAL OF
ANY FOSTER OR ADOPTIVE PLACEMENT AND TO CHECK NATIONAL CRIME INFORMATION
DATABASES AND STATE CHILD ABUSE REGISTRIES; SUSPENSION AND SUBSEQUENT ELIMINATION
OF OPT-OUT.
(a) Requirement to Complete Background Checks Before Approval of Any Foster
or Adoptive Placement and to Check National Crime Information Databases
and State Child Abuse Registries; Suspension of Opt-out-
(1) REQUIREMENT TO CHECK NATIONAL CRIME INFORMATION DATABASES AND STATE
CHILD ABUSE REGISTRIES- Section 471(a)(20) of the Social Security Act
(42 U.S.C. 671(a)(20)) is amended--
(A) in subparagraph (A)--
(i) in the matter preceding clause (i)--
(I) by inserting `, including checks of national crime information
databases (as defined in section 534(e)(3)(A) of title 28, United
States Code),' after `criminal records checks'; and
(II) by striking `on whose behalf foster care maintenance payments
or adoption assistance payments are to be made' and inserting `regardless
of whether foster care maintenance payments or adoption assistance
payments are to be made on behalf of the child'; and
(ii) in each of clauses (i) and (ii), by inserting `involving a child
on whose behalf such payments are to be so made' after `in any case';
and
(B) by adding at the end the following:
`(C) provides that the State shall--
`(i) check any child abuse and neglect registry maintained by the State
for information on any prospective foster or adoptive parent and on
any other adult living in the home of such a prospective parent, and
request any other State in which any such prospective parent or other
adult has resided in the preceding 5 years, to enable the State to check
any child abuse and neglect registry maintained by such other State
for such information, before the prospective foster or adoptive parent
may be finally approved for placement of a child, regardless of whether
foster care maintenance payments or adoption assistance payments are
to be made on behalf of the child under the State plan under this part;
`(ii) comply with any request described in clause (i) that is received
from another State; and
`(iii) have in place safeguards to prevent the unauthorized disclosure
of information in any child abuse and neglect registry maintained by
the State, and to prevent any such information obtained pursuant to
this subparagraph from being used for a purpose other than the conducting
of background checks in foster or adoptive placement cases;'.
(2) SUSPENSION OF OPT-OUT- Section 471(a)(20)(B) of such Act (42 U.S.C.
671(a)(20)(B)) is amended--
(A) by inserting `, on or before September 30, 2005,' after `plan if';
and
(B) by inserting `, on or before such date,' after `or if'.
(b) Elimination of Opt-Out- Section 471(a)(20) of such Act (42 U.S.C. 671(a)(20)),
as amended by subsection (a) of this section, is amended--
(1) in subparagraph (A), in the matter preceding clause (i), by striking
`unless an election provided for in subparagraph (B) is made with respect
to the State,'; and
(2) by striking subparagraph (B) and redesignating subparagraph (C) as
subparagraph (B).
(1) IN GENERAL- The amendments made by subsection (a) shall take effect
on October 1, 2005, and shall apply with respect to payments under part
E of title IV of the Social Security Act for calendar quarters beginning
on or after such date, without regard to whether regulations to implement
the amendments are promulgated by such date.
(2) ELIMINATION OF OPT-OUT- The amendments made by subsection (b) shall
take effect on October 1, 2007, and shall apply with respect to payments
under part E of title IV of the Social Security Act for calendar quarters
beginning on or after such date, without regard to whether regulations
to implement the amendments are promulgated by such date.
(3) DELAY PERMITTED IF STATE LEGISLATION REQUIRED- If the Secretary of
Health and Human Services determines that State legislation (other than
legislation appropriating funds) is required in order for a State plan
under section 471 of the Social Security Act to meet the additional requirements
imposed by the amendments made by a subsection of this section, the plan
shall not be regarded as failing to meet any of the additional requirements
before the first day of the first calendar quarter beginning after the
first regular session of the State legislature that begins after the otherwise
applicable effective date of the amendments. If the State has a 2-year
legislative session, each year of the session is deemed to be a separate
regular session of the State legislature.
SEC. 503. ACCESS TO FEDERAL CRIME INFORMATION DATABASES BY CHILD WELFARE
AGENCIES FOR CERTAIN PURPOSES.
(a) IN GENERAL- The Attorney General of the United States shall, upon request
of the chief executive officer of a State, conduct fingerprint-based checks
of the national crime information databases (as defined in section 534(e)(3)(A)
of title 28, United States Code) submitted by a local child welfare agency
for the purpose of conducting a background check required under section
471(a)(20) of the Social Security Act on individuals under consideration
as prospective foster or adoptive parents. Where possible, the check shall
include a fingerprint-based check of State criminal history databases. The
Attorney General and the States may charge any applicable fees for the checks.
(b) LIMITATION- An officer may use the authority under subsection (a) only
for the purpose of conducting the background checks required under section
471(a)(20) of the Social Security Act.
(c) PROTECTION OF INFORMATION- An individual having information derived
as a result of a check under subsection (a) may release that information
only to appropriate officers of child welfare agencies or another person
authorized by law to receive that information.
(d) CRIMINAL PENALTIES- An individual who knowingly exceeds the authority
in subsection (a), or knowingly releases information in violation of subsection
(c), shall be imprisoned not more than 10 years or fined under title 18,
United States Code, or both.
(e) CHILD WELFARE AGENCY DEFINED- In this section, the term `child welfare
agency' means--
(1) the State or local agency responsible for administering the plan under
part B or part E of title IV of the Social Security Act; and
(2) any other public agency, or any other private agency under contract
with the State or local agency responsible for administering the plan
under part B or part E of title IV of the Social Security Act, that is
responsible for the licensing or approval of foster or adoptive parents.
SEC. 504. PENALTIES FOR COERCION AND ENTICEMENT BY SEX OFFENDERS.
Section 2422(a) of title 18, United States Code, is amended by striking
`or imprisoned not more than 20 years, or both' and inserting `and imprisoned
not less than 10 years nor more than 30 years'.
SEC. 505. PENALTIES FOR CONDUCT RELATING TO CHILD PROSTITUTION.
Section 2423 of title 18, United States Code, is amended--
(1) in subsection (a), by striking `5 years and not more than 30 years'
and inserting `30 years or for life';
(2) in subsection (b), by striking `or imprisoned not more than 30 years,
or both' and inserting `and imprisoned for not less than 10 years and
not more than 30 years';
(3) in subsection (c), by striking `or imprisoned not more than 30 years,
or both' and inserting `and imprisoned for not less than 10 years and
not more than 30 years'; and
(4) in subsection (d), by striking `imprisoned not more than 30 years,
or both' and inserting `and imprisoned for not less than 10 nor more than
30 years'.
SEC. 506. PENALTIES FOR SEXUAL ABUSE.
(a) Aggravated Sexual Abuse- Section 2241 of title 18, United States Code,
is amended--
(1) in subsection (a), by striking `, imprisoned for any term of years
or life, or both' and inserting `and imprisoned for any term of years
not less than 30 or for life'; and
(2) in subsection (b), by striking `, imprisoned for any term of years
or life, or both' and inserting `and imprisoned for any term of years
not less than 25 or for life'.
(b) Sexual Abuse- Section 2242 of title 18, United States Code, is amended
by striking `, imprisoned not more than 20 years, or both' and inserting
`and imprisoned not less than 15 years nor more than 40 years'.
(c) Abusive Sexual Contact- Section 2244(a) of title 18, United States Code,
is amended--
(1) in paragraph (2), by striking `, imprisoned not more than three years,
or both' and inserting `and imprisoned not less than 5 years nor more
than 30 years';
(2) in paragraph (3), by striking `, imprisoned not more than two years,
or both' and inserting `and imprisoned not less than 4 years nor more
than 20 years'; and
(3) in paragraph (4), by striking `, imprisoned not more than six months,
or both' and inserting `and imprisoned not less than 2 years nor more
than 10 years'.
SEC. 507. SEX OFFENDER SUBMISSION TO SEARCH AS CONDITION OF RELEASE.
(a) Conditions of Probation- Section 3563(a) of title 18, United States
Code, is amended--
(1) in paragraph (9), by striking the period and inserting `; and'; and
(2) by inserting after paragraph (9) the following:
`(10) for a person who is a felon or required to register under the Sex
Offender Registration and Notification Act, that the person submit his
person, and any property, house, residence, vehicle, papers, computer,
other electronic communication or data storage devices or media, and effects
to search at any time, with or without a warrant, by any law enforcement
or probation officer with reasonable suspicion concerning a violation
of a condition of probation or unlawful conduct by the person, and by
any probation officer in the lawful discharge of the officer's supervision
functions.'.
(b) Supervised Release- Section 3583(d) of title 18, United States Code,
is amended by adding at the end the following: `The court may order, as
an explicit condition of supervised release for a person who is a felon
or required to register under the Sex Offender Registration and Notification
Act, that the person submit his person, and any property, house, residence,
vehicle, papers, computer, other electronic communications or data storage
devices or media, and effects to search at any time, with or without a warrant,
by any law enforcement or probation officer with reasonable suspicion concerning
a violation of a condition of supervised release or unlawful conduct by
the person, and by any probation officer in the lawful discharge of the
officer's supervision functions.'.
SEC. 508. KIDNAPPING PENALTIES AND JURISDICTION.
Section 1201 of title 18, United States Code, is amended--
(1) in subsection (a)(1), by striking `if the person was alive when the
transportation began' and inserting `, or the offender travels in interstate
or foreign commerce or uses the mail or any means, facility, or instrumentality
of interstate or foreign commerce in committing or in furtherance of the
commission of the offense'; and
(2) in subsection (b), by striking `to interstate' and inserting `in interstate'.
SEC. 509. MARITAL COMMUNICATION AND ADVERSE SPOUSAL PRIVILEGE.
(a) In General- Chapter 119 of title 28, United States Code, is amended
by inserting after section 1826 the following:
`Sec. 1826A. Marital communications and adverse spousal privilege
`The confidential marital communication privilege and the adverse spousal
privilege shall be inapplicable in any Federal proceeding in which a spouse
is charged with a crime against--
`(1) a child of either spouse; or
`(2) a child under the custody or control of either spouse.'.
(b) Technical and Conforming Amendment- The table of sections for chapter
119 of title 28, United States Code, is amended by inserting after the item
relating to section 1826 the following:
`1826A. Marital communications and adverse spousal privilege.'.
SEC. 510. ABUSE AND NEGLECT OF INDIAN CHILDREN.
Section 1153(a) of title 18, United States Code, is amended by inserting
`felony child abuse or neglect,' after `years,'.
SEC. 511. CIVIL COMMITMENT.
Chapter 313 of title 18, United States Code, is amended--
(1) in the chapter analysis--
(A) in the item relating to section 4241, by inserting `or to undergo
postrelease proceedings' after `trial'; and
(B) by inserting at the end the following:
`4248. Civil commitment of a sexually dangerous person.';
(A) in the heading, by inserting `or to undergo postrelease proceedings'
after `trial';
(B) in the first sentence of subsection (a), by inserting `or at any
time after the commencement of probation or supervised release and prior
to the completion of the sentence,' after `defendant,';
(i) by striking `trial to proceed' each place it appears and inserting
`proceedings to go forward'; and
(ii) by striking `section 4246' and inserting `sections 4246 and 4248';
and
(i) by inserting `or other proceedings' after `trial'; and
(ii) by striking `chapter 207' and inserting `chapters 207 and 227';
(A) by striking `, or 4246' each place it appears and inserting `, 4246,
or 4248';
(B) in subsections (g) and (i), by striking `4243 or 4246' each place
it appears and inserting `4243, 4246, or 4248';
(i) by amending subparagraph (1)(C) to read as follows:
`(C) drug, alcohol, and sex offender treatment programs, and other treatment
programs that will assist the individual in overcoming a psychological
or physical dependence or any condition that makes the individual dangerous
to others; and';
(ii) in paragraph (2), by striking `and' at the end;
(iii) in paragraph (3), by striking the period at the end and inserting
a semicolon; and
(iv) by inserting at the end the following:
`(4) `bodily injury' includes sexual abuse;
`(5) `sexually dangerous person' means a person who has engaged or attempted
to engage in sexually violent conduct or child molestation and who is
sexually dangerous to others; and
`(6) `sexually dangerous to others' means that a person suffers from a
serious mental illness, abnormality, or disorder as a result of which
he would have serious difficulty in refraining from sexually violent conduct
or child molestation if released.';
(D) in subsection (b), by striking `4245 or 4246' and inserting `4245,
4246, or 4248'; and
(E) in subsection (c)(4)--
(i) by redesignating subparagraphs (D) and (E) as subparagraphs (E)
and (F) respectively; and
(ii) by inserting after subparagraph (C) the following:
`(D) if the examination is ordered under section 4248, whether the person
is a sexually dangerous person;'; and
(4) by inserting at the end the following:
`Sec. 4248. Civil commitment of a sexually dangerous person
`(a) Institution of Proceedings- In relation to a person who is in the custody
of the Bureau of Prisons, or who has been committed to the custody of the
Attorney General pursuant to section 4241(d), or against whom all criminal
charges have been dismissed solely for reasons relating to the mental condition
of the person, the Attorney General or any individual authorized by the
Attorney General or the Director of the Bureau of Prisons may certify that
the person is a sexually dangerous person, and transmit the certificate
to the clerk of the court for the district in which the person is confined.
The clerk shall send a copy of the certificate to the person, and to the
attorney for the Government, and, if the person was committed pursuant to
section 4241(d), to the clerk of the court that ordered the commitment.
The court shall order a hearing to determine whether the person is a sexually
dangerous person. A certificate filed under this subsection shall stay the
release of the person pending completion of procedures contained in this
section.
`(b) Psychiatric or Psychological Examination and Report- Prior to the date
of the hearing, the court may order that a psychiatric or psychological
examination of the defendant be conducted, and that a psychiatric or psychological
report be filed with the court, pursuant to the provisions of section 4247(b)
and (c).
`(c) Hearing- The hearing shall be conducted pursuant to the provisions
of section 4247(d).
`(d) Determination and Disposition- If, after the hearing, the court finds
by clear and convincing evidence that the person is a sexually dangerous
person, the court shall commit the person to the custody of the Attorney
General. The Attorney General shall release the person to the appropriate
official of the State in which the person is domiciled or was tried if such
State will assume responsibility for his custody, care, and treatment. The
Attorney General shall make all reasonable efforts to cause such a State
to assume such responsibility. If, notwithstanding such efforts, neither
such State will assume such responsibility, the Attorney General shall place
the person for treatment in a suitable facility, until--
`(1) such a State will assume such responsibility; or
`(2) the person's condition is such that he is no longer sexually dangerous
to others, or will not be sexually dangerous to others if released under
a prescribed regimen of medical, psychiatric, or psychological care or
treatment;
whichever is earlier. The Attorney General shall make all reasonable efforts
to have a State to assume such responsibility for the person's custody,
care, and treatment.
`(e) Discharge- When the Director of the facility in which a person is placed
pursuant to subsection (d) determines that the person's condition is such
that he is no longer sexually dangerous to others, or will not be sexually
dangerous to others if released under a prescribed regimen of medical, psychiatric,
or psychological care or treatment, he shall promptly file a certificate
to that effect with the clerk of the court that ordered the commitment.
The clerk shall send a copy of the certificate to the person's counsel and
to the attorney for the Government. The court shall order the discharge
of the person or, on motion of the attorney for the Government or on its
own motion, shall hold a hearing, conducted pursuant to the provisions of
section 4247(d), to determine whether he should be released. If, after the
hearing, the court finds by a preponderance of the evidence that the person's
condition is such that--
`(1) he will not be sexually dangerous to others if released unconditionally,
the court shall order that he be immediately discharged; or
`(2) he will not be sexually dangerous to others if released under a prescribed
regimen of medical, psychiatric, or psychological care or treatment, the
court shall--
`(A) order that he be conditionally discharged under a prescribed regimen
of medical, psychiatric, or psychological care or treatment that has
been prepared for him, that has been certified to the court as appropriate
by the Director of the facility in which he is committed, and that has
been found by the court to be appropriate; and
`(B) order, as an explicit condition of release, that he comply with
the prescribed regimen of medical, psychiatric, or psychological care
or treatment.
The court at any time may, after a hearing employing the same criteria,
modify or eliminate the regimen of medical, psychiatric, or psychological
care or treatment.
`(f) Revocation of Conditional Discharge- The director of a facility responsible
for administering a regimen imposed on a person conditionally discharged
under subsection (e) shall notify the Attorney General and the court having
jurisdiction over the person of any failure of the person to comply with
the regimen. Upon such notice, or upon other probable cause to believe that
the person has failed to comply with the prescribed regimen of medical,
psychiatric, or psychological care or treatment, the person may be arrested,
and, upon arrest, shall be taken without unnecessary delay before the court
having jurisdiction over him. The court shall, after a hearing, determine
whether the person should be remanded to a suitable facility on the ground
that he is sexually dangerous to others in light of his failure to comply
with the prescribed regimen of medical, psychiatric, or psychological care
or treatment.
`(g) Release to State of Certain Other Persons- If the director of the facility
in which a person is hospitalized or placed pursuant to this chapter certifies
to the Attorney General that a person, against him all charges have been
dismissed for reasons not related to the mental condition of the person,
is a sexually dangerous person, the Attorney General shall release the person
to the appropriate official of the State in which the person is domiciled
or was tried for the purpose of institution of State proceedings for civil
commitment. If neither such State will assume such responsibility, the Attorney
General shall release the person upon receipt of notice from the State that
it will not assume such responsibility, but not later than 10 days after
certification by the director of the facility.'.
SEC. 512. STATE CIVIL COMMITMENT PROGRAMS FOR SEXUALLY DANGEROUS PERSONS.
(a) Grants Authorized- The Attorney General shall make grants to jurisdictions
for the purpose of establishing, enhancing, or operating effective civil
commitment programs for sexually dangerous persons.
(1) IN GENERAL- To be eligible to receive a grant under this section,
a jurisdiction must, before the expiration of the compliance period--
(A) have established a civil commitment program for sexually dangerous
persons that is consistent with guidelines issued by the Attorney General;
or
(B) submit a plan for the establishment of such a program.
(2) COMPLIANCE PERIOD- The compliance period referred to in paragraph
(1) expires on the date that is 2 years after the date of the enactment
of this Act. However, the Attorney General may, on a case-by-case basis,
extend the compliance period that applies to a jurisdiction if the Attorney
General considers such an extension to be appropriate.
(c) Attorney General Reports- Not later than January 31 of each year, beginning
with 2008, the Attorney General shall submit to the Committee on the Judiciary
of the Senate and the Committee on the Judiciary of the House of Representatives
a report on the progress of jurisdictions in implementing this section and
the rate of sexually violent offenses for each jurisdiction.
(d) Definitions- As used in this section:
(1) The term `civil commitment program' means a program that involves--
(A) secure civil confinement, including appropriate control, care, and
treatment during such confinement; and
(B) appropriate supervision, care, and treatment for individuals released
following such confinement.
(2) The term `sexually dangerous person' means an individual who is dangerous
to others because of a mental illness, abnormality, or disorder that creates
a risk that the individual will engage in sexually violent conduct or
child molestation.
(3) The term `jurisdiction' has the meaning given such term in section
111.
(e) Authorization of Appropriations- There are authorized to be appropriated
to carry out this section $10,000,000 for each of fiscal years 2006, 2007,
2008, and 2009.
SEC. 513. MANDATORY PENALTIES FOR SEX-TRAFFICKING OF CHILDREN.
Section 1591(b) of title 18, United States Code, is amended--
(A) by striking `or imprisonment' and inserting `and imprisonment';
(B) by inserting `not less than 20' after `any term of years'; and
(C) by striking `, or both'; and
(A) by striking `or imprisonment for not' and inserting `and imprisonment
for not less than 10 years nor'; and
(B) by striking `, or both'.
SEC. 514. SEXUAL ABUSE OF WARDS.
Chapter 109A of title 18, United States Code, is amended--
(1) in section 2243(b), by striking `one year' and inserting `five years';
(2) in section 2244(b), by striking `six months' and inserting `two years';
and
(3) by inserting after `Federal prison,' each place it appears, other
than the second sentence of section 2241(c), the following: `or being
in the custody of the Attorney General or the Bureau of Prisons or confined
in any institution or facility by direction of the Attorney General or
the Bureau of Prisons,'.
SEC. 515. NO LIMITATION FOR PROSECUTION OF FELONY SEX OFFENSES.
Chapter 213 of title 18, United States Code, is amended--
(1) by adding at the end the following:
`Sec. 3298. Child abduction and sex offenses
`Notwithstanding any other law, an indictment may be found or an information
instituted at any time without limitation for any offense under section
1201 involving a minor victim, and for any felony under chapter 109A, 110,
or 117, or section 1591.'; and
(2) by adding at the end of the table of sections at the beginning of
the chapter the following new item:
`3298. Child abduction and sex offenses.'.
SEC. 516. CHILD ABUSE REPORTING.
Section 2258 of title 18, United States Code, is amended by striking `Class
B misdemeanor' and inserting `Class A misdemeanor'.
SEC. 517. SENSE OF CONGRESS.
It is the sense of Congress that background checks conducted as a precondition
to approval of any foster or adoptive placement of children affected by
a natural disaster or terrorist attack should be expedited in order to ensure
that such children do not become subjected to the offenses enumerated in
this Act.
SEC. 518. DEFENDANTS IN CERTAIN CRIMINAL CASES TO BE TESTED FOR HIV.
(a) In General- A jurisdiction shall have in effect laws or regulations
with respect to a defendant against whom an information or indictment is
presented for a crime in which by force or threat of force the perpetrator
compels the victim to engage in sexual activity that require as follows:
(1) That the defendant be tested for HIV disease if--
(A) the nature of the alleged crime is such that the sexual activity
would have placed the victim at risk of becoming infected with HIV;
or
(B) the victim requests that the defendant be so tested.
(2) That if the conditions specified in paragraph (1) are met, the defendant
undergo the test not later than 48 hours after the date on which the information
or indictment is presented, and that as soon thereafter as is practicable
the results of the test be made available to--
(B) the defendant (or if the defendant is a minor, to the legal guardian
of the defendant);
(C) the attorneys of the victim;
(D) the attorneys of the defendant;
(E) the prosecuting attorneys; and
(F) the judge presiding at the trial, if any.
(3) That if the defendant has been tested pursuant to paragraph (2), the
defendant, upon request of the victim, undergo such follow-up tests for
HIV as may be medically appropriate, and that as soon as is practicable
after each such test the results of the test be made available in accordance
with paragraph (1) (except that this paragraph applies only to the extent
that the individual involved continues to be a defendant in the judicial
proceedings involved, or is convicted in the proceedings).
(4) That, if the results of a test conducted pursuant to paragraph (2)
or (3) indicate that the defendant has HIV disease, such fact may, as
relevant, be considered in the judicial proceedings conducted with respect
to the alleged crime.
(1) IN GENERAL- For any fiscal year beginning 2 or more years after the
date of the enactment of this Act, a jurisdiction that fails to implement
this section shall not receive 10 percent of the funds that would otherwise
be allocated for that fiscal year to the jurisdiction under each of the
following programs:
(A) BYRNE- Subpart 1 of part E of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.), whether characterized
as the Edward Byrne Memorial State and Local Law Enforcement Assistance
Programs, the Edward Byrne Memorial Justice Assistance Grant Program,
or otherwise.
(B) LLEBG- The Local Government Law Enforcement Block Grants program.
(2) REALLOCATION- Amounts not allocated under a program referred to in
paragraph (1) to a jurisdiction for failure to fully implement this section
shall be reallocated under that program to jurisdictions that have not
failed to implement this section.
TITLE VI--MISCELLANEOUS PROVISION
SEC. 601. BAN ON FIREARM FOR PERSON CONVICTED OF A MISDEMEANOR SEX OFFENSE
AGAINST A MINOR.
(a) Disposition of Firearm- Section 922(d) of title 18, United States Code,
is amended--
(1) by striking `or' at the end of paragraph (8);
(2) by striking the period at the end of paragraph (9) and inserting `;
or'; and
(3) by inserting after paragraph (9) the following:
`(10) has been convicted in any court of a misdemeanor sex offense against
a minor.'.
(b) Possession of Firearm- Section 922(g) of title 18, United States Code,
is amended--
(1) by striking `or' at the end of paragraph (8);
(2) by striking the comma at the end of paragraph (9) and inserting `;
or'; and
(3) by inserting after paragraph (9) the following:
`(10) who has been convicted in any court of a misdemeanor sex offense
against a minor,'.
(c) Misdemeanor Sex Offense Against a Minor Defined- Section 921(a) of such
title is amended by adding at the end the following:
`(36)(A) The term `misdemeanor sex offense against a minor' means a sex
offense against a minor punishable by imprisonment for not more than one
year.
`(B) The term `sex offense' means a criminal offense that has, as an element,
a sexual act or sexual contact with another, or an attempt or conspiracy
to commit such an offense.
`(C) The term `minor' means an individual who has not attained 18 years
of age.'.
TITLE VII--NATIONAL REGISTER OF CASES OF CHILD ABUSE OR NEGLECT
SEC. 701. NATIONAL REGISTER OF CASES OF CHILD ABUSE OR NEGLECT.
(a) In General- The Attorney General, in consultation with the Secretary
of Health and Human Services, shall create a national register of cases
of child abuse or neglect. The information in such register shall be supplied
by States, or, at the option of a State, by political subdivisions of such
State.
(b) Information- The register described in subsection (a) shall collect
in a central electronic database information on children reported to a State,
or a political subdivision of a State, as abused or neglected.
(c) Scope of Information-
(A) TREATMENT OF REPORTS- The information to be provided to the Secretary
of Health and Human Services under this section shall relate to substantiated
reports of child abuse or neglect. Except as provided in subparagraph
(B), each State, or, at the option of a State, each political subdivision
of such State, shall determine whether the information to be provided
to the Secretary of Health and Human Services under this section shall
also relate to reports of suspected instances of child abuse or neglect
that were unsubstantiated or determined to be unfounded.
(B) EXCEPTION- If a State or political subdivision of a State has an
equivalent electronic register of cases of child abuse or neglect that
it maintains pursuant to a requirement or authorization under any other
provision of law, the information provided to the Secretary of Health
and Human Services under this section shall be coextensive with that
in such register.
(2) FORM- Information provided to the Secretary of Health and Human Services
under this section--
(A) shall be in a standardized electronic form determined by the Secretary
of Health and Human Services; and
(B) shall contain case-specific identifying information, except that,
at the option of the entity supplying the information, the confidentiality
of identifying information concerning an individual initiating a report
or complaint regarding a suspected or known instance of child abuse
or neglect may be maintained.
(d) Construction- This section shall not be construed to require a State
or political subdivision of a State to modify--
(1) an equivalent register of cases of child abuse or neglect that it
maintains pursuant to a requirement or authorization under any other provision
of law; or
(2) any other record relating to child abuse or neglect, regardless of
whether the report of abuse or neglect was substantiated, unsubstantiated,
or determined to be unfounded.
(e) Dissemination- The Attorney General, in consultation with the Secretary
of Health and Human Services, shall establish standards for the dissemination
of information in the national register of cases of child abuse or neglect.
Such standards shall preserve the confidentiality of records in order to
protect the rights of the child and the child's parents or guardians while
also ensuring that Federal, State, and local government entities have access
to such information in order to carry out their responsibilities under law
to protect children from abuse and neglect.
(f) Authorization of Appropriations- There are authorized to be appropriated
to carry out this section such sums as may be necessary for fiscal year
2006 and succeeding fiscal years.
TITLE VIII--CHILD PORNOGRAPHY PREVENTION ACT OF 2005
SEC. 801. SHORT TITLE.
This title may be cited as the `Child Pornography Prevention Act of 2005'.
SEC. 802. FINDINGS.
Congress makes the following findings:
(1) The effect of the intrastate production, transportation, distribution,
receipt, advertising, and possession of child pornography on interstate
market in child pornography.
(A) The illegal production, transportation, distribution, receipt, advertising
and possession of child pornography, as defined in section 2256(8) of
title 18, United States Code, as well as the transfer of custody of
children for the production of child pornography, is harmful to the
physiological, emotional, and mental health of the children depicted
in child pornography and has a substantial and detrimental effect on
society as a whole.
(B) A substantial interstate market in child pornography exists, including
not only a multimillion dollar industry, but also a nationwide network
of individuals openly advertising their desire to exploit children and
to traffic in child pornography. Many of these individuals distribute
child pornography with the expectation of receiving other child pornography
in return.
(C) The interstate market in child pornography is carried on to a substantial
extent through the mails and other instrumentalities of interstate and
foreign commerce, such as the Internet. The advent of the Internet has
greatly increased the ease of transporting, distributing, receiving,
and advertising child pornography in interstate commerce. The advent
of digital cameras and digital video cameras, as well as videotape cameras,
has greatly increased the ease of producing child pornography. The advent
of inexpensive computer equipment with the capacity to store large numbers
of digital images of child pornography has greatly increased the ease
of possessing child pornography. Taken together, these technological
advances have had the unfortunate result of greatly increasing the interstate
market in child pornography.
(D) Intrastate incidents of production, transportation, distribution,
receipt, advertising, and possession of child pornography, as well as
the transfer of custody of children for the production of child pornography,
have a substantial and direct effect upon interstate commerce because:
(i) Some persons engaged in the production, transportation, distribution,
receipt, advertising, and possession of child pornography conduct
such activities entirely within the boundaries of one state. These
persons are unlikely to be content with the amount of child pornography
they produce, transport, distribute, receive, advertise, or possess.
These persons are therefore likely to enter the interstate market
in child pornography in search of additional child pornography, thereby
stimulating demand in the interstate market in child pornography.
(ii) When the persons described in subparagraph (D)(i) enter the interstate
market in search of additional child pornography, they are likely
to distribute the child pornography they already produce, transport,
distribute, receive, advertise, or possess to persons who will distribute
additional child pornography to them, thereby stimulating supply in
the interstate market in child pornography.
(iii) Much of the child pornography that supplies the interstate market
in child pornography is produced entirely within the boundaries of
one state, is not traceable, and enters the interstate market surreptitiously.
This child pornography supports demand in the interstate market in
child pornography and is essential to its existence.
(E) Prohibiting the intrastate production, transportation, distribution,
receipt, advertising, and possession of child pornography, as well as
the intrastate transfer of custody of children for the production of
child pornography, will cause some persons engaged in such intrastate
activities to cease all such activities, thereby reducing both supply
and demand in the interstate market for child pornography.
(F) Federal control of the intrastate incidents of the production, transportation,
distribution, receipt, advertising, and possession of child pornography,
as well as the intrastate transfer of children for the production of
child pornography, is essential to the effective control of the interstate
market in child pornography.
(2) The importance of protecting children from repeat exploitation in
child pornography:
(A) The vast majority of child pornography prosecutions today involve
images contained on computer hard drives, computer disks, and related
media.
(B) Child pornography is not entitled to protection under the First
Amendment and thus may be prohibited.
(C) The government has a compelling state interest in protecting children
from those who sexually exploit them, and this interest extends to stamping
out the vice of child pornography at all levels in the distribution
chain.
(D) Every instance of viewing images of child pornography represents
a renewed violation of the privacy of the victims and a repetition of
their abuse.
(E) Child pornography constitutes prima facie contraband, and as such
should not be distributed to, or copied by, child pornography defendants
or their attorneys.
(F) It is imperative to prohibit the reproduction of child pornography
in criminal cases so as to avoid repeated violation and abuse of victims,
so long as the government makes reasonable accommodations for the inspection,
viewing, and examination of such material for the purposes of mounting
a criminal defense.
SEC. 803. STRENGTHENING SECTION 2257 TO ENSURE THAT CHILDREN ARE NOT EXPLOITED
IN THE PRODUCTION OF PORNOGRAPHY.
Section 2257 of title 18 of the United States Code is amended--
(1) in subsection (a)(l), by striking `actual';
(2) in subsection (b), by striking `actual';
(3) in subsection (f)(4)(A), by striking `actual';
(4) by amending paragraph (1) of subsection (h) to read as follows:
`(1) the term `sexually explicit conduct' has the meaning set forth in
subparagraphs (A)(i) through (v) of paragraph (2) of section 2256 of this
title;';
(5) in subsection (h)(4), by striking `actual.';
(A) at the end of paragraph (3), by striking `and';
(B) at the end of paragraph (4)(B), by striking the period and inserting
`; and'; and
(C) by inserting after paragraph (4)(B) the following new paragraph:
`(5) for any person to whom subsection (a) applies to refuse to permit
the Attorney General or his or her delegee to conduct an inspection under
subsection (c).'.
(7) in subsection (h)(3), by striking `to produce, manufacture, or publish
any book, magazine, periodical, film, video tape, computer generated image,
digital image, or picture, or other similar matter and includes the duplication,
reproduction, or reissuing of any such matter, but does not include mere
distribution or any other activity which does not involve hiring, contracting
for managing or otherwise arranging for the participation of the performers
depicted' and inserting `actually filming, videotaping, photographing;
creating a picture, digital image, or digitally- or computer-manipulated
image of an actual human being; or digitizing an image, of a visual depiction
of sexually explicit conduct; or, assembling, manufacturing, publishing,
duplicating, reproducing, or reissuing a book, magazine, periodical, film,
videotape, digital image, or picture, or other matter intended for commercial
distribution, that contains a visual depiction of sexually explicit conduct;
or, inserting on a computer site or service a digital image of, or otherwise
managing the sexually explicit content, of a computer site or service
that contains a visual depiction of, sexually explicit conduct';
(8) in subsection (a), by inserting after `videotape,' the following:
`digital image, digitally- or computer-manipulated image of an actual
human being, or picture,'; and
(9) in subsection (f)(4), by inserting after `video' the following: `digital
image, digitally- or computer-manipulated image of an actual human being,
or picture,'.
SEC. 804. PREVENTION OF DISTRIBUTION OF CHILD PORNOGRAPHY USED AS EVIDENCE
IN PROSECUTIONS.
Section 3509 of title 18, United States Code, is amended by adding at the
end the following:
`(m) Prohibition on Reproduction of Child Pornography-
`(1) In any criminal proceeding, any property or material that constitutes
child pornography (as defined by section 2256 of this title) must remain
in the care, custody, and control of either the Government or the court.
`(2)(A) Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure,
a court shall deny, in any criminal proceeding, any request by the defendant
to copy, photograph, duplicate, or otherwise reproduce any property or
material that constitutes child pornography (as defined by section 2256
of this title), so long as the Government makes the property or material
reasonably available to the defendant.
`(B) For the purposes of subparagraph (A), property or material shall
be deemed to be reasonably available to the defendant if the Government
provides ample opportunity for inspection, viewing, and examination at
a Government facility of the property or material by the defendant, his
or her attorney, aid any individual the defendant may seek to qualify
to furnish expert testimony at trial.'.
SEC. 805. AUTHORIZING CIVIL AND CRIMINAL ASSET FORFEITURE IN CHILD EXPLOITATION
AND OBSCENITY CASES.
(a) Conforming Forfeiture Procedures for Obscenity Offenses- Section 1467
of title 18, United States Code, is amended--
(1) in subsection (a)(3), by inserting a period after `of such offense'
and striking all that follows; and
(2) by striking subsections (b) through (n) and inserting the following:
`(b) The provisions of section 413 of the Controlled Substance Act (21 U.S.C.
853) with the exception of subsection (d), shall apply to the criminal forfeiture
of property pursuant to subsection (a).
`(c) Any property subject to forfeiture pursuant to subjection (a) may be
forfeited to the United States in a civil case in accordance with the procedures
set forth in chapter 46 of this title.'.
(b) Amendments to Child Exploitation Forfeiture Provisions-
(1) CRIMINAL FORFEITURE- Section 2253(a) of title 18, United States Code,
is amended--
(A) in the matter preceding paragraph (1) by--
(i) inserting `or who is convicted of an offense under sections 2252B
or 2257 of this chapter,' after `2260 of this chapter';
(ii) inserting `, or 2425' after `2423' and striking `or' before `2423';
and
(iii) inserting `or an offense under chapter 109A' after `of chapter
117'; and
(B) in paragraph (I), by inserting `, 2252A, 2252B or 2257' after `2252'.
(2) CIVIL FORFEITURE- Section 2254(a) of title 18, United States Code,
is amended--
(A) in paragraph (1), by inserting `, 2252A, 2252B, or 2257' after `2252';
(i) by striking `or' and inserting `of' before `chapter 117';
(ii) by inserting `, or an offense under section 2252B or 2257 of
this chapter,' after `Chapter 117,' and
(iii) by inserting `, or an offense under chapter 109A' before the
period; and
(C) in paragraph (3) by--
(i) inserting `, or 2425' after `2423' and striking `or' before `2423';
and
(ii) inserting `, a violation of section 2252B or 2257 of this chapter,
or a violation of chapter 109A' before the period.
(c) Amendments to RICO- Section 1961(1)(B) of title 18, United States Code,
is amended by inserting `2252A, 2252B,' after `2252'.
SEC. 806. PROHIBITING THE PRODUCTION OF OBSCENITY AS WELL AS TRANSPORTATION,
DISTRIBUTION, AND SALE.
(a) Section 1465- Section 1465 of title 18 of the United States Code is
amended--
(1) by inserting `Production and' before `Transportation'
in the heading of the section;
(2) by inserting `produces with the intent to transport, distribute, or
transmit in interstate or foreign commerce, or whoever knowingly' after
`whoever knowingly' and before `transports or travels in'; and
(3) by inserting a comma after `in or affecting such commerce'.
(b) Section 1466- Section 1466 of title 18 of the United States Code is
amended--
(1) in subsection (a), by inserting `producing with intent to distribute
or sell, or' before `selling or transferring obscene matter,';
(2) in subsection (b), by inserting, `produces' before `sells or transfers
or offers to sell or transfer obscene matter'; and
(3) in subsection (b) by inserting `production,' before `selling or transferring
or offering to sell or transfer such material.'.
TITLE IX--PERSONAL DATA OF CHILDREN
SEC. 901. MISAPPROPRIATION OF DATA.
(a) In General- Chapter 88 of title 18, United States Code, is amended by
adding at the end the following:
`Sec. 1802. Misappropriation of personal data of children
`Whoever, in or affecting interstate or foreign commerce, knowingly misappropriates
the personally identifiable information of a person who has not attained
the age of 18 years shall be fined under this title or imprisoned not more
than 10 years, or both.'.
(b) Clerical Amendment- The table of sections at the beginning of chapter
88 of title 18, United States Code, is amended by adding at the end the
following new item:
`1802. Misappropriation of personal data of children.'.
TITLE X--LOCAL LAW ENFORCEMENT HATE CRIMES PREVENTION
SEC. 1001. SHORT TITLE.
This title may be cited as the `Local Law Enforcement Hate Crimes Prevention
Act of 2005'.
SEC. 1002. FINDINGS.
Congress makes the following findings:
(1) The incidence of violence motivated by the actual or perceived race,
color, religion, national origin, gender, sexual orientation, gender identity,
or disability of the victim poses a serious national problem.
(2) Such violence disrupts the tranquility and safety of communities and
is deeply divisive.
(3) State and local authorities are now and will continue to be responsible
for prosecuting the overwhelming majority of violent crimes in the United
States, including violent crimes motivated by bias. These authorities
can carry out their responsibilities more effectively with greater Federal
assistance.
(4) Existing Federal law is inadequate to address this problem.
(5) The prominent characteristic of a violent crime motivated by bias
is that it devastates not just the actual victim and the family and friends
of the victim, but frequently savages the community sharing the traits
that caused the victim to be selected.
(6) Such violence substantially affects interstate commerce in many ways,
including--
(A) by impeding the movement of members of targeted groups and forcing
such members to move across State lines to escape the incidence or risk
of such violence; and
(B) by preventing members of targeted groups from purchasing goods and
services, obtaining or sustaining employment, or participating in other
commercial activity.
(7) Perpetrators cross State lines to commit such violence.
(8) Channels, facilities, and instrumentalities of interstate commerce
are used to facilitate the commission of such violence.
(9) Such violence is committed using articles that have traveled in interstate
commerce.
(10) For generations, the institutions of slavery and involuntary servitude
were defined by the race, color, and ancestry of those held in bondage.
Slavery and involuntary servitude were enforced, both prior to and after
the adoption of the 13th amendment to the Constitution of the United States,
through widespread public and private violence directed at persons because
of their race, color, or ancestry, or perceived race, color, or ancestry.
Accordingly, eliminating racially motivated violence is an important means
of eliminating, to the extent possible, the badges, incidents, and relics
of slavery and involuntary servitude.
(11) Both at the time when the 13th, 14th, and 15th amendments to the
Constitution of the United States were adopted, and continuing to date,
members of certain religious and national origin groups were and are perceived
to be distinct `races'. Thus, in order to eliminate, to the extent possible,
the badges, incidents, and relics of slavery, it is necessary to prohibit
assaults on the basis of real or perceived religions or national origins,
at least to the extent such religions or national origins were regarded
as races at the time of the adoption of the 13th, 14th, and 15th amendments
to the Constitution of the United States.
(12) Federal jurisdiction over certain violent crimes motivated by bias
enables Federal, State, and local authorities to work together as partners
in the investigation and prosecution of such crimes.
(13) The problem of crimes motivated by bias is sufficiently serious,
widespread, and interstate in nature as to warrant Federal assistance
to States and local jurisdictions.
SEC. 1003. DEFINITION OF HATE CRIME.
In this title, the term `hate crime' has the same meaning as in section
280003(a) of the Violent Crime Control and Law Enforcement Act of 1994 (28
U.S.C. 994 note).
SEC. 1004. SUPPORT FOR CRIMINAL INVESTIGATIONS AND PROSECUTIONS BY STATE
AND LOCAL LAW ENFORCEMENT OFFICIALS.
(a) Assistance Other Than Financial Assistance-
(1) IN GENERAL- At the request of a law enforcement official of a State
or Indian tribe, the Attorney General may provide technical, forensic,
prosecutorial, or any other form of assistance in the criminal investigation
or prosecution of any crime that--
(A) constitutes a crime of violence (as defined in section 16 of title
18, United States Code);
(B) constitutes a felony under the laws of the State or Indian tribe;
and
(C) is motivated by prejudice based on the actual or perceived race,
color, religion, national origin, gender, sexual orientation, gender
identity, or disability of the victim, or is a violation of the hate
crime laws of the State or Indian tribe.
(2) PRIORITY- In providing assistance under paragraph (1), the Attorney
General shall give priority to crimes committed by offenders who have
committed crimes in more than 1 State and to rural jurisdictions that
have difficulty covering the extraordinary expenses relating to the investigation
or prosecution of the crime.
(1) IN GENERAL- The Attorney General may award grants to assist State,
local, and Indian law enforcement officials with the extraordinary expenses
associated with the investigation and prosecution of hate crimes.
(2) OFFICE OF JUSTICE PROGRAMS- In implementing the grant program, the
Office of Justice Programs shall work closely with the funded jurisdictions
to ensure that the concerns and needs of all affected parties, including
community groups and schools, colleges, and universities, are addressed
through the local infrastructure developed under the grants.
(A) IN GENERAL- Each State that desires a grant under this subsection
shall submit an application to the Attorney General at such time, in
such manner, and accompanied by or containing such information as the
Attorney General shall reasonably require.
(B) DATE FOR SUBMISSION- Applications submitted pursuant to subparagraph
(A) shall be submitted during the 60-day period beginning on a date
that the Attorney General shall prescribe.
(C) REQUIREMENTS- A State or political subdivision of a State or tribal
official applying for assistance under this subsection shall--
(i) describe the extraordinary purposes for which the grant is needed;
(ii) certify that the State, political subdivision, or Indian tribe
lacks the resources necessary to investigate or prosecute the hate
crime;
(iii) demonstrate that, in developing a plan to implement the grant,
the State, political subdivision, or tribal official has consulted
and coordinated with nonprofit, nongovernmental victim services programs
that have experience in providing services to victims of hate crimes;
and
(iv) certify that any Federal funds received under this subsection
will be used to supplement, not supplant, non-Federal funds that would
otherwise be available for activities funded under this subsection.
(4) DEADLINE- An application for a grant under this subsection shall be
approved or disapproved by the Attorney General not later than 30 business
days after the date on which the Attorney General receives the application.
(5) GRANT AMOUNT- A grant under this subsection shall not exceed $100,000
for any single jurisdiction within a 1 year period.
(6) REPORT- Not later than December 31, 2006, the Attorney General shall
submit to Congress a report describing the applications submitted for
grants under this subsection, the award of such grants, and the purposes
for which the grant amounts were expended.
(7) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be appropriated
to carry out this subsection $5,000,000 for each of fiscal years 2006
and 2007.
SEC. 1005. GRANT PROGRAM.
(a) Authority to Make Grants- The Office of Justice Programs of the Department
of Justice shall award grants, in accordance with such regulations as the
Attorney General may prescribe, to State and local programs designed to
combat hate crimes committed by juveniles, including programs to train local
law enforcement officers in identifying, investigating, prosecuting, and
preventing hate crimes.
(b) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary to carry out this section.
SEC. 1006. AUTHORIZATION FOR ADDITIONAL PERSONNEL TO ASSIST STATE AND
LOCAL LAW ENFORCEMENT.
There are authorized to be appropriated to the Department of Justice, including
the Community Relations Service, for fiscal years 2006, 2007, and 2008 such
sums as are necessary to increase the number of personnel to prevent and
respond to alleged violations of section 249 of title 18, United States
Code, as added by section 1007.
SEC. 1007. PROHIBITION OF CERTAIN HATE CRIME ACTS.
(a) In General- Chapter 13 of title 18, United States Code, is amended by
adding at the end the following:
`Sec. 249. Hate crime acts
`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR
NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully
causes bodily injury to any person or, through the use of fire, a firearm,
or an explosive or incendiary device, attempts to cause bodily injury
to any person, because of the actual or perceived race, color, religion,
or national origin of any person--
`(A) shall be imprisoned not more than 10 years, fined in accordance
with this title, or both; and
`(B) shall be imprisoned for any term of years or for life, fined in
accordance with this title, or both, if--
`(i) death results from the offense; or
`(ii) the offense includes kidnaping or an attempt to kidnap, aggravated
sexual abuse or an attempt to commit aggravated sexual abuse, or an
attempt to kill.
`(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN,
GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-
`(A) IN GENERAL- Whoever, whether or not acting under color of law,
in any circumstance described in subparagraph (B), willfully causes
bodily injury to any person or, through the use of fire, a firearm,
or an explosive or incendiary device, attempts to cause bodily injury
to any person, because of the actual or perceived religion, national
origin, gender, sexual orientation, gender identity or disability of
any person--
`(i) shall be imprisoned not more than 10 years, fined in accordance
with this title, or both; and
`(ii) shall be imprisoned for any term of years or for life, fined
in accordance with this title, or both, if--
`(I) death results from the offense; or
`(II) the offense includes kidnaping or an attempt to kidnap, aggravated
sexual abuse or an attempt to commit aggravated sexual abuse, or
an attempt to kill.
`(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the
circumstances described in this subparagraph are that--
`(i) the conduct described in subparagraph (A) occurs during the course
of, or as the result of, the travel of the defendant or the victim--
`(I) across a State line or national border; or
`(II) using a channel, facility, or instrumentality of interstate
or foreign commerce;
`(ii) the defendant uses a channel, facility, or instrumentality of
interstate or foreign commerce in connection with the conduct described
in subparagraph (A);
`(iii) in connection with the conduct described in subparagraph (A),
the defendant employs a firearm, explosive or incendiary device, or
other weapon that has traveled in interstate or foreign commerce;
or
`(iv) the conduct described in subparagraph (A)--
`(I) interferes with commercial or other economic activity in which
the victim is engaged at the time of the conduct; or
`(II) otherwise affects interstate or foreign commerce.
`(b) Certification Requirement- No prosecution of any offense described
in this subsection may be undertaken by the United States, except under
the certification in writing of the Attorney General, the Deputy Attorney
General, the Associate Attorney General, or any Assistant Attorney General
specially designated by the Attorney General that--
`(1) he or she has reasonable cause to believe that the actual or perceived
race, color, religion, national origin, gender, sexual orientation, gender
identity, or disability of any person was a motivating factor underlying
the alleged conduct of the defendant; and
`(2) he or his designee or she or her designee has consulted with State
or local law enforcement officials regarding the prosecution and determined
that--
`(A) the State does not have jurisdiction or does not intend to exercise
jurisdiction;
`(B) the State has requested that the Federal Government assume jurisdiction;
`(C) the State does not object to the Federal Government assuming jurisdiction;
or
`(D) the verdict or sentence obtained pursuant to State charges left
demonstratively unvindicated the Federal interest in eradicating bias-motivated
violence.
`(c) Definitions- In this section--
`(1) the term `explosive or incendiary device' has the meaning given the
term in section 232 of this title;
`(2) the term `firearm' has the meaning given the term in section 921(a)
of this title; and
`(3) the term `gender identity' for the purposes of this chapter means
actual or perceived gender-related characteristics.
`(d) Rule of Evidence- In a prosecution for an offense under this section,
evidence of expression or associations of the defendant may not be introduced
as substantive evidence at trial, unless the evidence specifically relates
to that offense. However, nothing in this section affects the rules of evidence
governing impeachment of a witness.'.
(b) Technical and Conforming Amendment- The analysis for chapter 13 of title
18, United States Code, is amended by adding at the end the following:
SEC. 1008. STATISTICS.
Subsection (b)(1) of the first section of the Hate Crimes Statistics Act
(28 U.S.C. 534 note) is amended by inserting `gender and gender identity,'
after `race,'.
SEC. 1009. SEVERABILITY.
If any provision of this title, an amendment made by this title, or the
application of such provision or amendment to any person or circumstance
is held to be unconstitutional, the remainder of this Act, the amendments
made by this Act, and the application of the provisions of such to any person
or circumstance shall not be affected thereby.
Passed the House of Representatives September 14, 2005.
Attest:
JEFF TRANDAHL,
Clerk.
By Gerasimos C. Vans,
Deputy Clerk.
END
