First Substitute H.B. 5

Senator Darin G. Peterson proposes the following substitute bill:

1 INTERNET SEXUAL CONTENT - PROTECTION
2 OF MINORS
3 2007 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Paul Ray
6 Senate Sponsor: Darin G. Peterson
7
8 LONG TITLE
9 General Description:
10 This bill modifies the Criminal Code by amending the penalties for enticing a minor
11 over the Internet in order to commit a sexual offense. This bill also modifies Title 76,
12 Chapter 10, Part 12, Pornographic and Harmful Materials and Performances.
13 Highlighted Provisions:
14 This bill:
15 . amends the penalty for enticing a minor to commit a first degree felony sexual
16 offense, so that the enticement offense is a first degree felony with a specified
17 penalty;
18 . includes enticing a minor over the Internet when subsequent contact is by electronic
19 or written means other than the use of a computer;
20 . provides that if a defendant commits the offense of enticing a minor to commit any
21 felony sexual offense, and the defendant has previously committed a sexual offense
22 or kidnapping against a minor, the court may not shorten the prison sentence;
23 . repeals the following sections:
24 . repeals the section establishing an adult content registry and references to the
25 registry; and

26 . repeals the section requiring that an Internet services provider must provide to
27 consumers the service of blocking material on the adult content registry;
28 . provides a definition of "negligent" regarding material harmful to minors;
29 . describes the circumstances under which an Internet service provider or a hosting
30 company is not guilty of criminal conduct involving distributing pornographic
31 material, inducing acceptance of pornographic material, or dealing in material
32 harmful to a minor;
33 . increases the minimum mandatory fine for dealing in material harmful to a minor;
34 . provides that a felony or class A offense of enticing a minor over the Internet is a
35 prior offense regarding sex offender lifetime registration;
36 . clarifies the standard applicable to conduct of Internet service providers regarding
37 filtering of material harmful to minors from negligently or recklessly to a standard
38 of knowing or intentional conduct; and
39 . amends the provisions regarding charging the consumer for software that blocks
40 material harmful to minors.
41 Monies Appropriated in this Bill:
42 None
43 Other Special Clauses:
44 This bill provides an immediate effective date.
45 Utah Code Sections Affected:
46 AMENDS:
47 76-4-401, as last amended by Chapter 164, Laws of Utah 2003
48 76-10-1201, as last amended by Chapter 9, Laws of Utah 2001
49 76-10-1204, as last amended by Chapter 281, Laws of Utah 2005
50 76-10-1205, as last amended by Chapter 281, Laws of Utah 2005
51 76-10-1206, as last amended by Chapter 281, Laws of Utah 2005
52 76-10-1230, as enacted by Chapter 281, Laws of Utah 2005
53 76-10-1231, as enacted by Chapter 281, Laws of Utah 2005
54 77-27-21.5, as last amended by Chapters 189, 269 and 334, Laws of Utah 2006
55 REPEALS:
56 67-5-19, as enacted by Chapter 281, Laws of Utah 2005

57 76-10-1232, as enacted by Chapter 281, Laws of Utah 2005
58
59 Be it enacted by the Legislature of the state of Utah:
60 Section 1. Section 76-4-401 is amended to read:
61 76-4-401. Enticing a minor over the Internet -- Elements -- Penalties.
62 (1) (a) A person commits enticement of a minor over the Internet when the person
63 knowingly uses a computer to solicit, seduce, lure, or entice, or attempts to use a computer to
64 solicit, seduce, lure, or entice a minor or a person the defendant believes to be a minor to
65 engage in any sexual activity which is a violation of state criminal law.
66 (b) A person commits enticement of a minor over the Internet when the person
67 knowingly uses a computer to initiate contact with a minor or a person the defendant believes
68 to be a minor and subsequently, by any electronic or written means, solicits, seduces, lures, or
69 entices, or attempts to solicit, seduce, lure, or entice the minor or a person the defendant
70 believes to be the minor to engage in any sexual activity which is a violation of state criminal
71 law.
72 (2) It is not a defense to the crime of enticing a minor under Subsection (1), or an
73 attempt to commit this offense, that a law enforcement officer or an undercover operative who
74 is working with a law enforcement agency was involved in the detection or investigation of the
75 offense.
76 (3) An enticement of a minor under Subsection (1) with the intent to commit:
77 (a) a first degree felony is a [second degree felony] first degree felony punishable by
78 imprisonment for an indeterminate term of not fewer than three years and which may be for
79 life;
80 (b) a second degree felony is a third degree felony;
81 (c) a third degree felony is a class A misdemeanor;
82 (d) a class A misdemeanor is a class B misdemeanor; and
83 (e) a class B misdemeanor is a class C misdemeanor.
84 (4) (a) When a person who commits a felony violation of this section has been
85 previously convicted of an offense under Subsection (4)(b), the court may not in any way
86 shorten the prison sentence, and the court may not:
87 (i) grant probation;

88 (ii) suspend the execution or imposition of the sentence;
89 (iii) enter a judgment for a lower category of offense; or
90 (iv) order hospitalization.
91 (b) The sections referred to in Subsection (4)(a) are:
92 (i) Section 76-4-401 , enticing a minor over the Internet;
93 (ii) Section 76-5-301.1 , child kidnapping;
94 (iii) Section 76-5-402 , rape;
95 (iv) Section 76-5-402.1 , rape of a child;
96 (v) Section 76-5-402.2 , object rape;
97 (vi) Section 76-5-402.3 , object rape of a child;
98 (vii) Subsection 76-5-403 (2), forcible sodomy;
99 (viii) Section 76-5-403.1 , sodomy on a child;
100 (ix) Section 76-5-404 , forcible sexual abuse;
101 (x) Section 76-5-404.1 , sexual abuse of a child and aggravated sexual abuse of a child;
102 (xi) Section 76-5-405 , aggravated sexual assault;
103 (xii) any offense in any other state or federal jurisdiction which constitutes or would
104 constitute a crime in Subsections (4)(b)(i) through (xi); or
105 (xiii) the attempt to commit any of the offenses in Subsections (4)(b)(i) through (xii).
106 Section 2. Section 76-10-1201 is amended to read:
107 76-10-1201. Definitions.
108 For the purpose of this part:
109 (1) "Contemporary community standards" means those current standards in the
110 vicinage where an offense alleged under this act has occurred, is occurring, or will occur.
111 (2) "Distribute" means to transfer possession of materials whether with or without
112 consideration.
113 (3) "Exhibit" means to show.
114 (4) "Harmful to minors" means that quality of any description or representation, in
115 whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when
116 it:
117 (a) taken as a whole, appeals to the prurient interest in sex [of] with minors;
118 (b) is patently offensive to prevailing standards in the adult community as a whole with

119 respect to what is suitable material for minors; and
120 (c) taken as a whole, does not have serious value for minors. Serious value includes
121 only serious literary, artistic, political, or scientific value for minors.
122 (5) "Knowingly" means an awareness, whether actual or constructive, of the character
123 of material or of a performance. A person has constructive knowledge if a reasonable
124 inspection or observation under the circumstances would have disclosed the nature of the
125 subject matter and if a failure to inspect or observe is either for the purpose of avoiding the
126 disclosure or is criminally negligent as described in Section 76-2-103 .
127 (6) "Material" means anything printed or written or any picture, drawing, photograph,
128 motion picture, or pictorial representation, or any statue or other figure, or any recording or
129 transcription, or any mechanical, chemical, or electrical reproduction, or anything which is or
130 may be used as a means of communication. Material includes undeveloped photographs,
131 molds, printing plates, and other latent representational objects.
132 (7) "Minor" means any person less than [eighteen] 18 years of age.
133 (8) "Negligently" means simple negligence, the failure to exercise that degree of care
134 that a reasonable and prudent person would exercise under like or similar circumstances.
135 [(8)] (9) "Nudity" means the showing of the human male or female genitals, pubic area,
136 or buttocks, with less than an opaque covering, or the showing of a female breast with less than
137 an opaque covering, or any portion thereof below the top of the nipple, or the depiction of
138 covered male genitals in a discernibly turgid state.
139 [(9)] (10) "Performance" means any physical human bodily activity, whether engaged
140 in alone or with other persons, including but not limited to singing, speaking, dancing, acting,
141 simulating, or pantomiming.
142 [(10)] (11) "Public place" includes a place to which admission is gained by payment of
143 a membership or admission fee, however designated, notwithstanding its being designated a
144 private club or by words of like import.
145 [(11)] (12) "Sado-masochistic abuse" means flagellation or torture by or upon a person
146 who is nude or clad in undergarments, a mask, or in a revealing or bizarre costume, or the
147 condition of being fettered, bound, or otherwise physically restrained on the part of one so
148 clothed.
149 [(12)] (13) "Sexual conduct" means acts of masturbation, sexual intercourse, or any

150 touching of a person's clothed or unclothed genitals, pubic area, buttocks, or, if the person is a
151 female, breast, whether alone or between members of the same or opposite sex or between
152 humans and animals in an act of apparent or actual sexual stimulation or gratification.
153 [(13)] (14) "Sexual excitement" means a condition of human male or female genitals
154 when in a state of sexual stimulation or arousal, or the sensual experiences of humans engaging
155 in or witnessing sexual conduct or nudity.
156 Section 3. Section 76-10-1204 is amended to read:
157 76-10-1204. Distributing pornographic material.
158 (1) A person is guilty of distributing pornographic material when he knowingly:
159 (a) sends or brings any pornographic material into the state with intent to distribute or
160 exhibit it to others;
161 (b) prepares, publishes, prints, or possesses any pornographic material with intent to
162 distribute or exhibit it to others;
163 (c) distributes or offers to distribute, exhibits or offers to exhibit any pornographic
164 material to others;
165 (d) writes, creates, or solicits the publication or advertising of pornographic material;
166 (e) promotes the distribution or exhibition of material he represents to be pornographic;
167 or
168 (f) presents or directs a pornographic performance in any public place or any place
169 exposed to public view or participates in that portion of the performance which makes it
170 pornographic.
171 (2) Each distributing of pornographic material as defined in Subsection (1) is a separate
172 offense.
173 (3) It is a separate offense under this section for:
174 (a) each day's exhibition of any pornographic motion picture film; and
175 (b) each day in which any pornographic publication is displayed or exhibited in a
176 public place with intent to distribute or exhibit it to others.
177 (4) (a) An offense under this section is a third degree felony punishable by:
178 (i) a minimum mandatory fine of not less than $1,000 plus $10 for each article
179 exhibited up to the maximum allowed by law; and
180 (ii) incarceration, without suspension of sentence in any way, for a term of not less than

181 30 days.
182 (b) This Subsection (4) supersedes Section 77-18-1 .
183 [(5) A service provider, as defined in Section 76-10-1230 , complies with this section if
184 it complies with Sections 76-10-1231 and 76-10-1232 .]
185 (5) (a) This section does not apply to an Internet service provider, as defined in Section
186 76-10-1230 , if:
187 (i) the distribution of pornographic material by the Internet service provider occurs
188 only incidentally through the Internet service provider's function of:
189 (A) transmitting or routing data from one person to another person; or
190 (B) providing a connection between one person and another person;
191 (ii) the Internet Service provider does not intentionally aid or abet in the distribution of
192 the pornographic material; and
193 (iii) the Internet service provider does not knowingly receive funds from or through a
194 person who distributes the pornographic material in exchange for permitting the person to
195 distribute the pornographic material.
196 (b) This section does not apply to a hosting company, as defined in Section
197 76-10-1230 , if:
198 (i) the distribution of pornographic material by the hosting company occurs only
199 incidentally through the hosting company's function of providing data storage space or data
200 caching to a person;
201 (ii) the hosting company does not intentionally participate, aid, or abet in the
202 distribution of the pornographic material; and
203 (iii) the hosting company does not knowingly receive funds from or through a person
204 who distributes the pornographic material in exchange for permitting the person to distribute,
205 store, or cache the pornographic material.
206 Section 4. Section 76-10-1205 is amended to read:
207 76-10-1205. Inducing acceptance of pornographic material.
208 (1) A person is guilty of inducing acceptance of pornographic material when he
209 knowingly:
210 (a) requires or demands as a condition to a sale, allocation, consignment, or delivery
211 for resale of any newspaper, magazine, periodical, book, publication, or other merchandise that

212 the purchaser or consignee receive any pornographic material or material reasonably believed
213 by the purchaser or consignee to be pornographic; or
214 (b) denies, revokes, or threatens to deny or revoke a franchise, or to impose any
215 penalty, financial or otherwise, because of the failure or refusal to accept pornographic material
216 or material reasonably believed by the purchaser or consignee to be pornographic.
217 (2) (a) An offense under this section is a third degree felony punishable by:
218 (i) a minimum mandatory fine of not less than $1,000 plus $10 for each article
219 exhibited up to the maximum allowed by law; and
220 (ii) incarceration, without suspension of sentence in any way, for a term of not less than
221 30 days.
222 (b) This Subsection (2) supersedes Section 77-18-1 .
223 [(3) A service provider, as defined in Section 76-10-1230 , complies with this section if
224 it complies with Sections 76-10-1231 and 76-10-1232 .]
225 (3) (a) This section does not apply to an Internet service provider, as defined in Section
226 76-10-1230 , if:
227 (i) the distribution of pornographic material by the Internet service provider occurs
228 only incidentally through the Internet service provider's function of:
229 (A) transmitting or routing data from one person to another person; or
230 (B) providing a connection between one person and another person;
231 (ii) the Internet Service provider does not intentionally aid or abet in the distribution of
232 the pornographic material; and
233 (iii) the Internet service provider does not knowingly receive funds from or through a
234 person who distributes the pornographic material in exchange for permitting the person to
235 distribute the pornographic material.
236 (b) This section does not apply to a hosting company, as defined in Section
237 76-10-1230 , if:
238 (i) the distribution of pornographic material by the hosting company occurs only
239 incidentally through the hosting company's function of providing data storage space or data
240 caching to a person;
241 (ii) the hosting company does not intentionally participate, aid, or abet in the
242 distribution of the pornographic material; and

243 (iii) the hosting company does not knowingly receive funds from or through a person
244 who distributes the pornographic material in exchange for permitting the person to distribute,
245 store, or cache the pornographic material.
246 Section 5. Section 76-10-1206 is amended to read:
247 76-10-1206. Dealing in material harmful to a minor.
248 (1) A person is guilty of dealing in material harmful to minors when, knowing that a
249 person is a minor, or having negligently [or recklessly] failed to determine the proper age of a
250 minor, [he] the person:
251 (a) intentionally distributes or offers to distribute, exhibits or offers to exhibit to a
252 minor any material harmful to minors;
253 (b) intentionally produces, presents, or directs any performance before a minor, that is
254 harmful to minors; or
255 (c) intentionally participates in any performance before a minor, that is harmful to
256 minors.
257 (2) (a) Each separate offense under this section is a third degree felony punishable by:
258 (i) a minimum mandatory fine of not less than [$300] $1,000 plus $10 for each article
259 exhibited up to the maximum allowed by law; and
260 (ii) incarceration, without suspension of sentence, for a term of not less than 14 days.
261 (b) This section supersedes Section 77-18-1 .
262 (3) (a) If a defendant has already been convicted once under this section, each separate
263 further offense is a second degree felony punishable by:
264 (i) a minimum mandatory fine of not less than $5,000 plus $10 for each article
265 exhibited up to the maximum allowed by law; and
266 (ii) incarceration, without suspension of sentence, for a term of not less than one year.
267 (b) This section supersedes Section 77-18-1 .
268 (c) (i) This section does not apply to an Internet service provider, as defined in Section
269 76-10-1230 , if:
270 (A) the distribution of pornographic material by the Internet service provider occurs
271 only incidentally through the Internet service provider's function of:
272 (I) transmitting or routing data from one person to another person; or
273 (II) providing a connection between one person and another person;

274 (B) the Internet Service provider does not intentionally aid or abet in the distribution of
275 the pornographic material; and
276 (C) the Internet service provider does not knowingly receive funds from or through a
277 person who distributes the pornographic material in exchange for permitting the person to
278 distribute the pornographic material.
279 (ii) This section does not apply to a hosting company, as defined in Section
280 76-10-1230 , if:
281 (A) the distribution of pornographic material by the hosting company occurs only
282 incidentally through the hosting company's function of providing data storage space or data
283 caching to a person;
284 (B) the hosting company does not intentionally participate, aid, or abet in the
285 distribution of the pornographic material; and
286 (C) the hosting company does not knowingly receive funds from or through a person
287 who distributes the pornographic material in exchange for permitting the person to distribute,
288 store, or cache the pornographic material.
289 (4) (a) A service provider, as defined in Section 76-10-1230 , [complies with] is not
290 negligent under this section if it complies with [Sections] Section 76-10-1231 [and
291 76-10-1232 ].
292 (b) A content provider, as defined in Section 76-10-1230 , [complies with] is not
293 negligent under this section if it complies with Section 76-10-1233 .
294 Section 6. Section 76-10-1230 is amended to read:
295 76-10-1230. Definitions.
296 As used in Sections 76-10-1231 [, 76-10-1232 ,] and 76-10-1233 :
297 (1) "Access restricted" means that a content provider limits access to material harmful
298 to minors by:
299 (a) properly rating content;
300 (b) providing an age verification mechanism designed to prevent a minor's access to
301 material harmful to minors, including requiring use of a credit card, adult access code, or
302 digital certificate verifying age; or
303 (c) any other reasonable measures feasible under available technology.
304 [(2) "Adult content registry" means the adult content registry created by Section

305 67-5-19 .]
306 [(3)] (2) "Consumer" means a natural person residing in this state who subscribes to a
307 service provided by a service provider for personal or residential use.
308 [(4)] (3) "Content provider" means a person [that] domiciled in Utah or that generates
309 or hosts content in Utah, and that creates, collects, acquires, or organizes electronic data for
310 electronic delivery to a consumer with the intent of making a profit.
311 [(5)] (4) (a) "Hosting company" means a person that provides services or facilities for
312 storing or distributing content over the Internet without editorial or creative alteration of the
313 content.
314 (b) A hosting company may have policies concerning acceptable use without becoming
315 a content provider under Subsection [(4)] (3).
316 [(6)] (5) (a) "Internet service provider" means a person engaged in the business of
317 providing a computer [and] communications facility in Utah, with the intent of making a profit,
318 through which a consumer may obtain access to the Internet.
319 (b) "Internet service provider" does not include a common carrier if it provides only
320 telecommunications service.
321 [(7)] (6) "Properly rated" means content using a labeling system to label material
322 harmful to minors provided by the content provider in a way that:
323 (a) accurately apprises a consumer of the presence of material harmful to minors; and
324 (b) allows the consumer the ability to control access to material harmful to minors
325 based on the material's rating by use of reasonably priced commercially available software,
326 including software in the public domain.
327 [(8)] (7) (a) Except as provided in Subsection [(8)] (7)(b), "service provider" means:
328 (i) an Internet service provider; or
329 (ii) a person who otherwise provides an Internet access service to a consumer in Utah
330 with the intent of making a profit.
331 (b) "Service provider" does not include a person who does not terminate a service in
332 this state, but merely transmits data through:
333 (i) a wire;
334 (ii) a cable; or
335 (iii) an antenna.

336 (c) "Service provider," notwithstanding Subsection [(8)] (7)(b), includes a person who
337 meets the requirements of Subsection [(8)] (7)(a) and leases or rents a wire or cable for the
338 transmission of data.
339 Section 7. Section 76-10-1231 is amended to read:
340 76-10-1231. Data service providers -- Internet content harmful to minors.
341 (1) (a) Upon request by a consumer, a service provider shall filter content to prevent
342 the transmission of material harmful to minors to the consumer.
343 (b) A service provider complies with Subsection (1)(a) if it uses a generally accepted
344 and commercially reasonable method of filtering.
345 (2) At the time of a consumer's subscription to a service provider's service, or at the
346 time this section takes effect if the consumer subscribes to the service provider's service at the
347 time this section takes effect, the service provider shall notify the consumer in a conspicuous
348 manner that the consumer may request to have material harmful to minors blocked under
349 Subsection (1).
350 (3) (a) A service provider may comply with Subsection (1) by:
351 (i) providing in-network filtering to prevent receipt of material harmful to minors,
352 provided that the filtering does not affect or interfere with access to Internet content for
353 consumers who do not request filtering under Subsection (1); or
354 (ii) providing software, or engaging a third party to provide software, for
355 contemporaneous installation on the consumer's computer that blocks, in an easy-to-enable and
356 commercially reasonable manner, receipt of material harmful to minors.
357 [(b) (i) Except as provided in Subsection (3)(b)(ii), a service provider may not charge a
358 consumer for blocking material or providing software under this section, except that a service
359 provider may increase the cost to all subscribers to the service provider's services to recover the
360 cost of complying with this section.]
361 [(ii) A service provider with fewer than 7,500 subscribers may charge a consumer for
362 providing software under Subsection (3)(a)(ii) if the charge does not exceed the service
363 provider's cost for the software.]
364 (b) A service provider may charge a consumer for providing filtering under Subsection
365 (3)(a).
366 (4) If the attorney general determines that a service provider violates Subsection (1) or

367 (2), the attorney general shall:
368 (a) notify the service provider that the service provider is in violation of Subsection (1)
369 or (2); and
370 (b) notify the service provider that the service provider has 30 days to comply with the
371 provision being violated or be subject to Subsection (5).
372 (5) A service provider that vi