Entrapment of the month

Text by: P.M. [edit]

Customs seizures have posed a problem for some boy-lovers. One correspondent relates an incident where a magazine from U.S. Customs declared the publication obscene under section 1305, title 13, United States Code. When the correspondent sent a registered letter pointing out that the photos in question did not depict sexual acts nor were suggestive (as are Penthouse and Playboy) in any way, he received a letter informing him to recover his materials in person. U.S. Customs had declined to institute judicial proceedings. Because he had to pick up the publication in person within 30 days at a considerable distance from his home, the incident presented inconvenience and expense. It did not present a threat of criminal prosecution.

What Are The Laws?

The reader who related this incident to us correctly saw that nudity in itself is not obscene. He is also to be admired for standing up for what he knew to be right. When, then, is criminal prosecution a risk? Two laws are currently applicable. One is the old Comstock law which makes it a crime to import obscene materials. Because the definition of obscenity is so confused, prosecution under this law is very difficult and, consequently, unlikely.

The other law is the Child Protection Act of 1984. It is an amendment of the Sexual Exploitation of Children Act of 1978 which makes it illegal to knowingly receive child pornography. The act lists specific sexual acts which are considered pornographic. Previously, only the production and commercial dissemination of child pornography had been considered criminal.

Another correspondent has sent us an article from a Harrisburg, Pennsylvania newspaper reporting on the arrest of two men for receiving child pornography. The arrest was made through a "controlled delivery" where Federal agents and local police actually witnessed a mail delivery. Such an arrest can also be made when an individual picks up mail at a post office under a pre-arranged setup. Customs seizures do not present a threat because if the material is withheld it cannot be received. If released, the material can only be deemed not obscene.

There is the danger, however, that U.S. Customs, in working together with postal authorities, will hold back on sending notices of seizures. Postal authorities can then decide on doing a controlled delivery. Because of the possibility that materials may be sent unsolicited, postal investigations are unlikely to be begun before seizure of a number of pieces of an individual's mail.

Extreme Caution Urged

Our second correspondent urges us to contact firms overseas and tell them their customers are being arrested. This presupposes that these firms are known to this column and that the arrested men did not deal with bogus firms set up for exactly such a scam. This possibility prompted us to expose Alex Smit as a likely Swedish based scam in our December column. Since anybody can be sent unsolicited materials, courts have to decide on whether proscribed materials have indeed been knowingly received - what better way than having a bogus firm receive orders? If it looks suspicious, stay away.

Different Name, Same Scam

When we did not get anyone to send us examples of postal scams in over two months, we couldn't believe that the Post Office had finally decided to give up looking through keyholes. We have at last received a new example of the type of scam which masquerades itself as an organization. The latest one calls itself Candy's Love Club (CLC) and gives PO Box 2912, Norfolk VA 23501 as its address. As is common to all these scams, it has a self-incriminating questionnaire attached and gives the mark the escape clause to disregard the material if it was mailed in error. The introduction appeals to the recipient's first amendment rights to read "whatever we please." It fails to mention that people can rot in jail many years before anyone will convince the present Supreme Court that the First Amendment has been subverted.

Entrapment is also a legal term which requires that the thought of a "crime" would not have occurred without the intervention of the authorities. All scams are therefor structured in such ways as to convince judges that only the opportunity of the "crime" was presented. An entrapment defense is therefor a very difficult one to present.

Thanks are here given to Michael L. [edit] and to Bob Rhodes for their help in interpreting items for this column.

source: Article 'Entrapment of the month' by P.M. [edit]; NAMBLA Bulletin, Vol. 6, n. 3; April 1985