Enrolled Copy H.B. 148
1 ARTIFICIAL PORNOGRAPHIC IMAGES AMENDMENTS
2024 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Ariel Defay Senate Sponsor: Chris H. Wilson
2
3 LONG TITLE
4 General Description:
5 This bill amends provisions in Title 76, Chapter 5b, Sexual Exploitation Act.
6 Highlighted Provisions:
7 This bill:
8 ▸ clarifies that certain prohibited materials in Title 76, Chapter 5b, Sexual Exploitation
9 Act, includes computer-generated videos; and
10 ▸ makes technical and conforming changes.
11 Money Appropriated in this Bill:
12 None
13 Other Special Clauses:
14 None
15 Utah Code Sections Affected:
16 AMENDS:
17 76-5b-103, as last amended by Laws of Utah 2023, Chapter 231
18 76-5b-203, as last amended by Laws of Utah 2022, Chapter 181
19 76-5b-204, as last amended by Laws of Utah 2022, Chapters 181, 184 and last amended by
20 Coordination Clause, Laws of Utah 2022, Chapter 184
21 76-5b-205, as last amended by Laws of Utah 2022, Chapters 112, 181 and 185 and last
22 amended by Coordination Clause, Laws of Utah 2022, Chapter 185
23
24 Be it enacted by the Legislature of the state of Utah:
25 Section 1. Section 76-5b-103 is amended to read:
26 76-5b-103 . Definitions.
27 As used in this chapter:
28 (1) "Child sexual abuse material" means any visual depiction, including any live
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29 performance, photograph, film, video, picture, or computer or computer-generated image[
30 or] , picture, or video, whether made or produced by electronic, mechanical, or other
31 means, of sexually explicit conduct, where:
32 (a) the production of the visual depiction involves the use of a minor engaging in
33 sexually explicit conduct;
34 (b) the visual depiction is of a minor engaging in sexually explicit conduct; or
35 (c) the visual depiction has been created, adapted, or modified to appear that an
36 identifiable minor is engaging in sexually explicit conduct.
37 (2) "Distribute" means[ the selling, exhibiting, displaying, wholesaling, retailing,
38 providing, giving, granting admission to, or otherwise transferring or presenting child
39 sexual abuse material or vulnerable adult sexual abuse material with or without
40 consideration] , with or without consideration, to sell, exhibit, display, provide, give,
41 grant admission to, provide access to, or otherwise transfer.
42 (3) "Identifiable minor" means [a person] an individual:
43 (a) (i) who was a minor at the time the visual depiction was created, adapted, or
44 modified; or
45 (ii) whose image as a minor was used in creating, adapting, or modifying the visual
46 depiction; and
47 (b) who is recognizable as an actual [person] individual by the [person's] individual's
48 face, likeness, or other distinguishing characteristic, such as a birthmark, or other
49 recognizable feature.
50 (4) "Identifiable vulnerable adult" means [a person] an individual:
51 (a) (i) who was a vulnerable adult at the time the visual depiction was created,
52 adapted, or modified; or
53 (ii) whose image as a vulnerable adult was used in creating, adapting, or modifying
54 the visual depiction; and
55 (b) who is recognizable as an actual [person] individual by the [person's] individual's
56 face, likeness, or other distinguishing characteristic, such as a birthmark, or other
57 recognizable feature.
58 (5) "Lacks capacity to consent" [is as] means the same as that term is defined in Section
59 76-5-111.4.
60 (6) "Live performance" means any act, play, dance, pantomime, song, or other activity
61 performed by live actors in person.
62 (7) "Minor" means [a person] an individual younger than 18 years old.
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63 (8) "Nudity or partial nudity" means any state of dress or undress in which the human
64 genitals, pubic region, buttocks, or the female breast, at a point below the top of the
65 areola, is less than completely and opaquely covered.
66 (9) "Produce" means:
67 (a) the photographing, filming, taping, directing, producing, creating, designing, or
68 composing of child sexual abuse material or vulnerable adult sexual abuse material; or
69 (b) the securing or hiring of [persons] individuals to engage in the photographing,
70 filming, taping, directing, producing, creating, designing, or composing of child
71 sexual abuse material or vulnerable adult sexual abuse material.
72 (10) "Sexually explicit conduct" means actual or simulated:
73 (a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
74 whether between [persons] individuals of the same or opposite sex;
75 (b) masturbation;
76 (c) bestiality;
77 (d) sadistic or masochistic activities;
78 (e) lascivious exhibition of the genitals, pubic region, buttocks, or female breast of any [
79 person] individual;
80 (f) the visual depiction of nudity or partial nudity for the purpose of causing sexual
81 arousal of any [person] individual;
82 (g) the fondling or touching of the genitals, pubic region, buttocks, or female breast; or
83 (h) the explicit representation of the defecation or urination functions.
84 (11) "Simulated sexually explicit conduct" means a feigned or pretended act of sexually
85 explicit conduct which duplicates, within the perception of an average person, the
86 appearance of an actual act of sexually explicit conduct.
87 (12) "Vulnerable adult" [is as] means the same as that term is defined in Subsection 76-5-111
88 (1).
89 (13) "Vulnerable adult sexual abuse material" means any visual depiction, including any
90 live performance, photograph, film, video, picture, or computer or computer-generated
91 image or picture, whether made or produced by electronic, mechanical, or other means,
92 of sexually explicit conduct, where:
93 (a) the production of the visual depiction involves the use of a vulnerable adult engaging
94 in sexually explicit conduct;
95 (b) the visual depiction is of a vulnerable adult engaging in sexually explicit conduct; or
96 (c) the visual depiction has been created, adapted, or modified to appear that an
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97 identifiable vulnerable adult is engaging in sexually explicit conduct.
98 Section 2. Section 76-5b-203 is amended to read:
99 76-5b-203 . Distribution of an intimate image -- Penalty.
100 (1) (a) As used in this section:
101 [(i) "Distribute" means selling, exhibiting, displaying, wholesaling, retailing,
102 providing, giving, granting admission to, providing access to, or otherwise
103 transferring or presenting an image to another individual, with or without
104 consideration.]
105 [(ii)] (i) "Intimate image" means any visual depiction, photograph, film, video,
106 recording, picture, or computer or computer-generated image[ or ], picture, or
107 video, whether made or produced by electronic, mechanical, or other means, that
108 depicts:
109 (A) exposed human male or female genitals or pubic area, with less than an
110 opaque covering;
111 (B) a female breast with less than an opaque covering, or any portion of the
112 female breast below the top of the areola; or
113 (C) the individual engaged in any sexually explicit conduct.
114 [(iii)] (ii) "Sexually explicit conduct" means actual or simulated:
115 (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or
116 oral-anal, whether between [persons] individuals of the same or opposite sex;
117 (B) masturbation;
118 (C) bestiality;
119 (D) sadistic or masochistic activities;
120 (E) exhibition of the genitals, pubic region, buttocks, or female breast of any
121 individual;
122 (F) visual depiction of nudity or partial nudity;
123 (G) fondling or touching of the genitals, pubic region, buttocks, or female breast;
124 or
125 (H) explicit representation of the defecation or urination functions.
126 [(iv)] (iii) "Simulated sexually explicit conduct" means a feigned or pretended act of
127 sexually explicit conduct that duplicates, within the perception of an average
128 person, the appearance of an actual act of sexually explicit conduct.
129 [(v)] (iv) "Single criminal episode" means the same as that term is defined in Section
130 76-1-401.
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131 (b) Terms defined in Section 76-1-101.5 apply to this section.
132 (2) (a) An actor commits the offense of distribution of an intimate image if:
133 (i) the actor knowingly or intentionally distributes to a third party, or knowingly
134 duplicates or copies an intimate image of an individual who is 18 years old or
135 older and knows or should know that the distribution, duplication or copying
136 would cause a reasonable person to suffer emotional distress or harm;
137 (ii) the actor has not received consent from the individual depicted in the image to
138 distribute the intimate image;
139 (iii) the intimate image was created by or provided to the actor under circumstances
140 in which the individual depicted in the image has a reasonable expectation of
141 privacy; and
142 (iv) except as provided in Subsection (2)(b), actual emotional distress or harm is
143 caused to the individual depicted in the image as a result of the distribution.
144 (b) Subsection (2)(a)(iv) is not an element of the offense described in Subsection (2)(a)
145 if:
146 (i) the individual depicted in the intimate image was the victim of a crime;
147 (ii) the intimate image was provided to law enforcement as part of an investigation or
148 prosecution of a crime committed against the victim;
149 (iii) the intimate image was distributed without a legitimate law enforcement or
150 investigative purpose by an individual who had access to the intimate image due
151 to the individual's association with the investigation or prosecution described in
152 Subsection (2)(b)(ii); and
153 (iv) the victim is incapacitated or deceased.
154 (3) (a) A violation of Subsection (2) is a class A misdemeanor.
155 (b) Notwithstanding Subsection (3)(a), a violation of Subsection (2) is a third degree
156 felony on a second or subsequent conviction for an offense under this section that
157 does not arise from a single criminal episode.
158 (4) This section does not apply to:
159 (a) except as provided in Section 76-5b-203.5:
160 (i) lawful practices of law enforcement agencies;
161 (ii) prosecutorial agency functions;
162 (iii) the reporting of a criminal offense;
163 (iv) court proceedings or any other judicial proceeding; or
164 (v) lawful and generally accepted medical practices and procedures;
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165 (b) an intimate image if the individual portrayed in the image voluntarily allows public
166 exposure of the image;
167 (c) an intimate image that is portrayed in a lawful commercial setting; or
168 (d) an intimate image that is related to a matter of public concern or interest.
169 (5) (a) This section does not apply to an Internet service provider or interactive computer
170 service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
171 communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications
172 service, information service, or mobile service as defined in 47 U.S.C. Sec. 153,
173 including a commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable
174 operator as defined in 47 U.S.C. Sec. 522, if:
175 (i) the distribution of an intimate image by the Internet service provider occurs only
176 incidentally through the provider's function of:
177 (A) transmitting or routing data from one person to another person; or
178 (B) providing a connection between one person and another person;
179 (ii) the provider does not intentionally aid or abet in the distribution of the intimate
180 image; and
181 (iii) the provider does not knowingly receive from or through a person who
182 distributes the intimate image a fee greater than the fee generally charged by the
183 provider, as a specific condition for permitting the person to distribute the intimate
184 image.
185 (b) This section does not apply to a hosting company, as defined in Section 76-10-1230,
186 if:
187 (i) the distribution of an intimate image by the hosting company occurs only
188 incidentally through the hosting company's function of providing data storage
189 space or data caching to a person;
190 (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
191 of the intimate image; and
192 (iii) the hosting company does not knowingly receive from or through a person who
193 distributes the intimate image a fee greater than the fee generally charged by the
194 provider, as a specific condition for permitting the person to distribute, store, or
195 cache the intimate image.
196 (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
197 section if it complies with Section 76-10-1231.
198 Section 3. Section 76-5b-204 is amended to read:
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199 76-5b-204 . Sexual extortion -- Penalties.
200 (1) (a) As used in this section:
201 (i) "Adult" means an individual 18 years [of age] old or older.
202 (ii) "Child" means any individual under the age of 18.
203 [(iii) "Distribute" means the same as that term is defined in Section 76-5b-203.]
204 [(iv)] (iii) "Intimate image" means the same as that term is defined in Section
205 76-5b-203.
206 [(v)] (iv) "Position of special trust" means the same as that term is defined in Section
207 76-5-404.1.
208 [(vi)] (v) "Sexually explicit conduct" means the same as that term is defined in
209 Section 76-5b-203.
210 [(vii)] (vi) "Simulated sexually explicit conduct" means the same as that term is
211 defined in Section 76-5b-203.
212 [(viii) "Vulnerable adult" means the same as that term is defined in Section 76-5-111.]
213 (b) Terms defined in Section 76-1-101.5 apply to this section.
214 (2) (a) An actor commits the offense of sexual extortion if the actor:
215 (i) with an intent to coerce a victim to engage in sexual contact, in sexually explicit
216 conduct, or in simulated sexually explicit conduct, or to produce, provide, or
217 distribute an image, video, or other recording of any individual naked or engaged
218 in sexually explicit conduct, communicates by any means a threat:
219 (A) to the victim's person, property, or reputation; or
220 (B) to distribute an intimate image or video of the victim;
221 (ii) knowingly causes a victim to engage in sexual contact, in sexually explicit
222 conduct, or in simulated sexually explicit conduct, or to produce, provide, or
223 distribute any image, video, or other recording of any individual naked or engaged
224 in sexually explicit conduct by means of a threat:
225 (A) to the victim's person, property, or reputation; or
226 (B) to distribute an intimate image or video of the victim; or
227 (iii) with intent to obtain a thing of value from a victim communicates, by any means,
228 a threat to distribute an intimate image or video of the victim.
229 (b) An actor commits aggravated sexual extortion when, in conjunction with the offense
230 described in Subsection (2)(a), any of the following circumst