child abuse, you would turn all of the money over to them from your magazine, all of the profits?

Mr. FLYNT. Yes; I would.

Mr. VOLKMER. Is that after taxes or before taxes?

Mr. FLYNT. Any way they want it, as long as it is legal.

Mr. VOLKMER. And you believe, sincerely, I suppose, from your testimony here, that what has been shown in your magazine and other similar magazines and periodicals should be permitted by this country, and films, et cetera, that they have had no adverse social effect on this country?

Mr. FLYNT. I don't know. There is nothing that would indicate that it has.

Mr. VOLKMER. What do you give-and this is a little along the same subject-what do you give as a cause of the number of child pregnancies in this country, over and above what there were 5, 10, 15, or 20 years ago, both percentagewise and numerically? What do you attribute that to?

Mr. FLYNT. A number of factors. One is the lack of sex education. And the other factor that has had more effect on it than anything else is the changing woman's role, and by that I mean the women's movement.

And I do not say this cauvinistically, but a great deal of the pholosophy behind the feminist movement causes women to get into lesbianism or masturbation, and this results in emasculation of the male ego and a breakdown of the family unit in society as we know it.

I feel it is a much more serious problem than the sexual exploitation aspect. I just simply feel it is a side effect of the woman's movement that we have to face.

Mr. VOLKMER. You blame the women's movement for it?

Mr. FLYNT. We are moving closer and closer to a bisexual world, not as a result of being in a permissive society, but as a result of the women's movement.

Mr. VOLKMER. There is participation in sexual activities a lot earlier than what occured in past years, is that correct?

Mr. CONYERS. May I remind my colleague that his time is running

out.

Mr. VOLKMER. I will conclude.

You say that it is just humor, man's inhumanity to man, your words? Mr. FLYNT. Yes.

Mr. VOLKMER. Do you personally agree with that type of humor? Mr. FLYNT. Yes, whether it is Laurel and Hardy, Charlie Chaplin, Abbott and Costello knocking each other over the head, people tripping and falling. You can't tell me any kind of humor that is not based on some sort of misfortune in life, because the only way you can make something funny is to take what is absurd and make it appear real, or take what is real and make it appear absurd. If anything, the appearance of this in Hustler magazine will at least get people to reassess attitudes and values.

Mr. VOLKMER. You believe it is humorous for man to be inhuman to man?

Mr. FLYNT. I didn't say that is what it stands for. I said that is why it exists.

Mr. CONYERS. I want to thank you both for coming here. I think your testimony and the comments that have followed it have been helpful.

We would like to be able to direct to counsel a few questions through the mail for our staff to incorporate that we don't have time to go into today.

Mr. FLYNT. We welcome them.

Mr. CONYERS. Thank you both very much.

Our next witness is the Honorable Richard R. Wier, Jr., Attorney General of Delaware.

TESTIMONY OF HON. RICHARD R. WIER, JR., ATTORNEY GENERAL OF DELAWARE

Mr. CONYERS. Mr. Wier, I know you are under some time constraints. Mr. WIER. Not serious, Mr. Chairman.

Mr. CONYERS. I am glad to hear that. We welcome you here, Mr. Attorney General, and recognize that you are among other things the youngest person to be elected to that office from your State. We appreciate your prepared testimony, and you may summarize it in any way that you wish, and please introduce your associate.

Mr. WIER. Mr. Chairman, my associate is Charles Meuse. One regret that I have is that I am not able to offer this committee $30 million. Mr. CONYERS. Yes; you come in a very difficult position here, with no monetary contributions to make whatsoever.

Mr. WIER. So what I can give you is some specific advice, and consistent with what that costs you, you may accept or reject it, because it is going to be free.

One of the concerns I have with this hearing is that I think it has been interesting to listen to, but I don't think it has been very productive.

Mr. CONYERS. You know, we get that feeling frequently in the subcommittee, and in the entire Congress.

Mr. WIER. The reason I don't think it has ben productive is I don't think you have been offered any concrete suggestions; I don't think you have dealt with specifics. I don't propose to waste your time or my time with reading the statement that you have before you.

What I suggest we do is to take a look at the guts of what this hearing is all about. And that means, one, should you even do anything, why should the Federal Government be involved, is there a need; and secondly, why have you come up with-I don't address this to you all individually but as a body of the Congress-with bills that you have reviewed, both in the Senate and the House, that I feel are totally inadequate.

I think they obviously have been well-intended, but I don't think they address the problems.

First of all, let me indicate that as attorney general of Delaware I have a unique position in that my office does all of the criminal prosecution in the State. There are no local attorneys, there are no states' attorneys. My background has been as a criminal trial lawyer for the last decade.

I have also had considerable experience in terms of drafting legislation. Our experience in Delaware, as the first witness indicated, was we have enacted statutes and they are attached to my statement. The statutes are the genesis of the legislation that my office has drafted and

secured the enactment of in Delaware, dealing with sexual exploitation of children, and dealing with obscenity and dealing with the licensing of adult book stores and massage parlors.

It has been our experience in trying to prosecute under broad obscenity standards and prosecute under the restrictions that State prosecutors or the attorney general in Delaware have to labor under because of the fact that we simply do not have the mechanism, the States do not have the mechanisms for effectively prosecuting the evil you are concerned about.

The evil you are concerned about is the production of this type of material involving children in sexual activity.

That brings up the Federal Government. What specific efforts would the Federal Government be able to provide that the States are having trouble with.

First of all, as one of your witnesses testified, the cost, particularly in this area, when it is intertwined with the first amendment, the cost of prosecution is enormous from the State's point of view, because marshaled on the other side are the $30 million of the Larry Flynts and the multimillion dollars of the Hefners and other people.

Larry Flynt makes more money than Delaware has in its budget. So that effectively the Federal resources are necessary in terms of monetary response to secure adequate prosecution in the Federal courts for the producers, the manufacturers, and those who knowingly transport such filth in or through interstate or foreign commerce.

In addition, one of the problems that we have, obviously, because of interstate nature of the industry, which I think is recognized by this committee, is the inability of us basically through subpena power and through the cumbersome mechanism of the extradition laws, to effectively go very far beyond our borders.

The Federal Government, if there were a Federal crime such as attempted to be articulated in H.R. 3914, the House bill, the Federal Government, and your U.S. attorneys, could effectively, I think, utilize State or nationwide subpena power, and could effectively utilize, without resorting to the cumbersome extradition process, the return of individuals charged with a Federal crime.

As you know, they don't have to go under the extradition laws to bring someone charged with a Federal crime, for example, in California to Delaware. So there are real practical problems with State prosecution that the Federal Government must address itself to, and you must address yourselves to that problem by the enacting of legislation that is not done in haste, and that recognizes the obvious problems that we have discussed with the first amendment.

Let me specifically address myself, one, to some of the legislation that I think you should consider, and second, to a criticism of H.R. 3914.

But as I view the other legislation, the Senate bills and House bills, they essentially track the language of H.R. 3914. I suggest you consider amending your racketeering act to include along with your State violations, that is, extortion, bribery, et cetera, include violations of State child exploitation laws. That would be an easy amendment, it would enable the U.S. attorneys to act immediately, as they are now doing under the racketeering acts, but also I think it would provide an incentive for the States to enact legislation.

One of the problems you have is waiting for States to respond. That point was raised, I think, by Congressman Volkmer, why haven't all of the States enacted statutes.

And even assuming they all enact statutes like Delaware's, you have differing standards, differing zeal, you have a variety of different approaches that don't lend themselves to any type of consistent nationwide effort in an area that is nationwide, and that is the production of child exploitation materials.

I think you have to get away from calling it child pornography. As I state in my statement, I think it is incorrect to call it child pornography. We are not talking about obscenity, we are talking about the crime of using children for illegal sexual purposes, just like murder and the production of filming of that, and other recordation of those acts are crimes and should be crimes.

When they are embodied in material and then disseminated or sold, then you begin to bring in the first amendment. So the specific recommendation I would have is you look at your racketeering act.

Second, you look at section 1462 of the obscenity statute. It seems to me that if you want to amend the Federal act, S. 462 in particular that defines obscenity and talks about the transportation of it, that might be a superfluous act, because I think the dissemination of obscene materials that depict children are covered by those statutes. We have secured convictions in Delaware under our obscenity statute, which is attached to my statement, of individuals who sell or attempt to sell magazines involving solely young children.

The specific prosecution I am talking about is a magazine called Lollitots. I have a copy of that, but I will not display it.

Mr. CONYERS. Thank you.

Mr. WIER. I will not give it to the committee either because I am using it in 2 weeks in another prosecution.

But if the committee wishes to view it, I am sure I can arrange to have copies sent.

H.R. 3914, I think, is a very poorly drafted piece of legislation. I will tell you why. You are all familiar with it, I am sure.

First of all, one of the major problems I have with the act is it makes as a condition of liability the person who produces this stuff and makes it a condition that he knows, has reason to know, or intends that it be photographed or filmed and that it will be disseminated or otherwise affect interstate or foreign commerce.

That standard, first of all, is almost impossible for a prosecutor to meet. It is virtually impossible for your Federal or State prosecutors to prove that the person who in an isolated chain, if he is financing it or filming it or if it is the mother who permits her child to engage in that type of activity-and obviosuly we have that throughout the nation-it would be impossible to prove that those individuals knew, had reason to know, or intended it be disseminated in interstate

commerce.

Second, that requirement is not necessary. You don't need it. The reason you don't need it is-and I indicate the case law in my statement is that the basis of the Federal jurisdiction is obviously the transportation or dissemination of this type of material in or through foreign or interstate commerce, or affecting such commerce. That is

a jurisdictional fact, and it is an element that has to be proved. But you don't have to use that as a condition of a substantive offense that you are regulating.

In the case I point to, and I am sure counsel on the committee are familiar with it, it was a prosecution for conspiracy to assault a Federal officer. There were two types of crimes in that case. It was a classic rip-off case, and a narcotics case.

I am referring essentially now to pages 8 through 13 of my statement. But it is U.S. v. Feola, 420 U.S. 671, 95th Supreme Court, 1255.

Bascally, what that case involved were two Federal undercover agents, who had a drug transaction with the defendants, and the defendants in that case were going to sell sugar-this is a common practice to rip the agents off who were undercover, purporting it was heroin. If the agents weren't fooled, they were going to either shoot them or rob them of the purchase money, in any event.

One of the agents became alerted to their designs before the transaction was consummated, and he pulled a gun to prevent the murder of the other Federal officer, and lo and behold, these two guys who were going to enter into a drug transaction found themselves surprisingly charged with assaulting and conspiring to assault Federal

officers.

The district court in that case, without objection, instructed the jury that it was not necessary, as an element of conviction, that the Government establish that the defendants knew that the agents were Federal officers, the only basis for Federal jurisdiction, it was conceded in that case.

Upon appeal the court of appeals reversed, saying that no, the defendants had to know or had to be charged with knowing that the officers were Federal. The U.S. Supreme Court reversed and said knowledge of the jurisdictional fact is not required and they remanded it for additional prosecution.

The same principle applies to this statute. So the first recommendation I have is to eliminate in section 2251 of H.R. 3914, or any other statute you are considering requiring, as a condition precedent to liability under the act, that the defendant know, have reason to know, or intend the jurisdictional aspects, that is, transportation.

Second, I think that your definition of prohibited sexual activity poses serious problems in that it prohibits children engaged in any other sexual activity. As has already been stated in testimony by Mr. Parrish, and others, there are real constitutional problems obviously with that vague definition.

For example, as I indicate in the statement, if a parent takes a Polaroid picture of his or her grandchildren kissing each other, and they send it to the grandparents in another State, that may well be a violation of 3914. Obviously therefore you should eliminate from your draft and from your hopefully final legislation that vague term. Delaware has done that in its act, which deals with sexual exploitation.

I also have problems, as a prosecutor, with the definition of nudity, although we have the same definition in our act. I will not concede, therefore, it is unconstitutional. But I think you have real