72
Opinion of the Court
ment in the absence of express contrary intent.2 Second, Staples' concern with harsh penalties looms equally large respecting § 2252: Violations are punishable by up to 10 years in prison as well as substantial fines and forfeiture. 18 U. S. C. §§ 2252(b), 2253, 2254. See also Morissette, supra, at 260.
Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct. Staples held that the features of a gun as technically described by the firearm registration Act was such an element. Its holding rested upon "the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items." Staples, supra, at 619. Age of minority in § 2252 indisputably possesses the same status as an elemental fact because nonob-scene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. Alexander v. United States, 509 U. S. 544, 549-550 (1993); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989); FW/PBS, Inc. v. Dallas, 493 U. S. 215, 224 (1990); Smith v. California, 361 U. S., at 152.3 In the light of these
2 Morissette's treatment of the common-law presumption of mens rea recognized that the presumption expressly excepted "sex offenses, such as rape, in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent." 342 U. S., at 251, n. 8. But as in the criminalization of pornography production at 18 U. S. C. § 2251, see infra, at 76, n. 5, the perpetrator confronts the underage victim personally and may reasonably be required to ascertain that victim's age. The opportunity for reasonable mistake as to age increases significantly once the victim is reduced to a visual depiction, unavailable for questioning by the distributor or receiver. Thus we do not think the common-law treatment of sex offenses militates against our construction of the present statute.
3 In this regard, age of minority is not a "jurisdictional fact" that enhances an offense otherwise committed with an evil intent. See, e. g., United States v. Feola, 420 U. S. 671 (1975). There, the Court did not
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