Ten years ago, in United States v. Stevens, the United States Supreme Court overturned the federal anti-animal cruelty statute 18 U.S.C. § 48 for the first time. The statute was specifically drafted to target the clandestine underground production of so-called “crush videos,” adult entertainment videos depicting animals being purposefully tortured to death by scantily clad women.
The Court overturned the statute for potentially criminalizing portrayals of legal activity with redeeming socio-cultural value, such as hunting. While the Court relied heavily on analyzing speech as it relates to child pornography, it did not address whether depictions of animal torture constitute “obscenity” outside the protection of the First Amendment. Even after the statute was narrowed in 2010 following the Stevens decision, it was again criticized in 2014 and 2017 at the appellate level for criminalizing depictions that did not explicitly contain “sexual conduct.”
Today, the most current revision to 18 U.S.C. § 48 (2019), titled the “Preventing Animal Cruelty and Torture Act,” is still not strong enough to accomplish its intended purpose of preventing depictions of animal cruelty. The statute as written prohibits the sale of “obscene” depictions in interstate commerce yet lacks a useful way to interpret exactly what types of content that applies to. This means the statute has a much greater chance of being challenged by a future court on the basis of constitutional overbreadth. To address this, this article proposes two additional changes which would both strengthen its enforcement and improve its likelihood of passing constitutional muster. First, this Article argues that re-classifying crush videos sold for profit under “commercial speech” would make it easier to regulate because commercial speech based on the commission of underlying criminal acts is illegal. Second, this article proposes enhancing the scienter language of 18 U.S.C. § 48 with a “prurient intent” element, requiring prosecutors to demonstrate that a particular depiction was made for “prurient” purposes. Because courts would have to closely examine the purpose and intent motivating production of crush video depictions, this would reduce the likelihood of criminalizing protected speech. The statute would therefore be more likely to pass constitutional muster.
This Article has six parts to support its argument. First, it examines the background and legislative history of the federal anti-animal cruelty statute, 18 U.S.C. § 48, including weaknesses of subsequent amendments. Second, the Article dissects both the majority and dissenting opinions of Stevens to show how the Supreme Court departed from traditional obscenity analysis in refusing to find the conduct compelling enough to ban outright. Third, to show how the Court could have approached the obscenity issue, this Article discusses First Amendment speech analysis as it relates to regulating depictions of obscene speech in commercial contexts and on the internet. Fourth, this Article reviews other federal and state court interpretations of statutes criminalizing the dissemination of obscene materials to show that there were other options available aside from invalidating for overbreadth. Fifth, this Article argues that re-classifying crush videos sold for profit under “commercial speech” would make it easier to regulate than creating a new category of unprotected speech because commercial speech based on the commission of underlying criminal acts is illegal. Sixth, this Article proposes that enhancing the scienter language of 18 U.S.C. § 48 with a “prurient intent” element would strengthen the statute to pass judicial review by requiring prosecutors to use additional circumstantial evidence to demonstrate that a particular depiction was made for “prurient” purposes. Such closer examination into the purpose motivating production of crush video depictions would rule out criminalizing protected speech. In addition, this Article discusses alternative remedies for animal abusers guilty under 18 U.S.C. § 48 and beyond, and suggests a proactive, treatment-based approach to address reducing recidivism in lieu of traditional, reactive incarceration.
United States v. Stevens at 10: Adding a “Prurient Intent” Element to Resolve Constitutional Overbreadth in the Federal Anti-Animal Cruelty Statute, 18 U.S.C. § 48,
1 Hastings J. Crime & Punish. 221
Available at: https://repository.uchastings.edu/hastings_journal_crime_punishment/vol1/iss2/5