This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Tue, Mar 12, 2019 at 9:58 AM by lpoole.
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7 LONG TITLE
8 General Description:
9 This bill amends provisions relating to distribution of an intimate image and indecent
10 liberties.
11 Highlighted Provisions:
12 This bill:
13 ▸ changes the intent provisions for the crime of distribution of an intimate image from
14 intent to cause emotional distress to knowing that the distribution would cause a
15 reasonable person emotional distress;
16 ▸ provides that indecent liberties includes the touching of certain areas of the body or
17 causing certain areas of the body to be touched; and
18 ▸ adds particular offenses to provisions in which any touching is sufficient as an
19 element of the offense.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
26 76-5-407, as last amended by Laws of Utah 2000, Chapter 128
27 76-5-416, as enacted by Laws of Utah 2018, Chapter 192
28 76-5b-203, as enacted by Laws of Utah 2014, Chapter 124
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30 Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 76-5-407 is amended to read:
32 76-5-407. Applicability of part -- "Penetration" or "touching" sufficient to
33 constitute offense.
34 (1) The provisions of this part do not apply to consensual conduct between persons
35 married to each other.
36 (2) In any prosecution for:
37 (a) the following offenses, any sexual penetration, however slight, is sufficient to
38 constitute the relevant element of the offense:
39 (i) unlawful sexual activity with a minor, a violation of Section 76-5-401, involving
40 sexual intercourse;
41 (ii) unlawful sexual conduct with a 16 or 17 year old, a violation of Section
42 76-5-401.2, involving sexual intercourse; or
43 (iii) rape, a violation of Section 76-5-402; or
44 (b) the following offenses, any touching, however slight, is sufficient to constitute the
45 relevant element of the offense:
46 (i) unlawful sexual activity with a minor, a violation of Section 76-5-401, involving
47 acts of sodomy;
48 (ii) unlawful sexual conduct with a 16 or 17 year old, a violation of Section
49 76-5-401.2, involving acts of sodomy;
50 (iii) sodomy, a violation of Subsection 76-5-403(1);
51 (iv) forcible sodomy, a violation of Subsection 76-5-403(2);
52 (v) rape of a child, a violation of Section 76-5-402.1; or
53 (vi) object rape of a child, a violation of Section 76-5-402.3.
54 (3) In any prosecution for the following offenses, any touching, even if accomplished
55 through clothing, is sufficient to constitute the relevant element of the offense:
56 (a) sodomy on a child, a violation of Section 76-5-403.1; [
57 (b) sexual abuse of a child or aggravated sexual abuse of a child, a violation of Section
58 76-5-404.1;
59 (c) sexual abuse of a minor, a violation of Section 76-5-401.1;
60 (d) unlawful sexual conduct with a 16- or 17-year-old, a violation of Section
61 76-5-401.2;
62 (e) forcible sexual abuse, a violation of Section 76-5-404;
63 (f) custodial sexual relations, a violation of Section 76-5-412; or
64 (g) custodial sexual relations or misconduct with youth receiving state services, a
65 violation of Ŝ→ Section ←Ŝ 76-5-413.
66 Section 2. Section 76-5-416 is amended to read:
67 76-5-416. Indecent liberties -- Definition.
68 As used in this part, "takes indecent liberties" means:
69 (1) the actor touching the [
70 female breast [
71 (2) causing any part of the [
72 genitals, pubic area, anus, buttocks, or female breast;
73 (3) simulating or pretending to engage in sexual intercourse with the victim, including
74 genital-genital, oral-genital, anal-genital, or oral-anal intercourse; or
75 (4) causing the victim to simulate or pretend to engage in sexual intercourse with the
76 actor or another, including genital-genital, oral-genital, anal-genital, or oral-anal intercourse.
77 Section 3. Section 76-5b-203 is amended to read:
78 76-5b-203. Distribution of an intimate image -- Penalty.
79 (1) As used in this section:
80 (a) "Distribute" means selling, exhibiting, displaying, wholesaling, retailing, providing,
81 giving, granting admission to, providing access to, or otherwise transferring or presenting an
82 image to another individual, with or without consideration.
83 (b) "Intimate image" means any visual depiction, photograph, film, video, recording,
84 picture, or computer or computer-generated image or picture, whether made or produced by
85 electronic, mechanical, or other means, that depicts:
86 (i) exposed human male or female genitals or pubic area, with less than an opaque
87 covering;
88 (ii) a female breast with less than an opaque covering, or any portion of the female
89 breast below the top of the areola; or
90 (iii) the individual engaged in any sexually explicit conduct.
91 (c) "Sexually explicit conduct" means actual or simulated:
92 (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
93 whether between persons of the same or opposite sex;
94 (ii) masturbation;
95 (iii) bestiality;
96 (iv) sadistic or masochistic activities;
97 (v) exhibition of the genitals, pubic region, buttocks, or female breast of any
98 individual;
99 (vi) visual depiction of nudity or partial nudity;
100 (vii) fondling or touching of the genitals, pubic region, buttocks, or female breast; or
101 (viii) explicit representation of the defecation or urination functions.
102 (d) "Simulated sexually explicit conduct" means a feigned or pretended act of sexually
103 explicit conduct that duplicates, within the perception of an average person, the appearance of
104 an actual act of sexually explicit conduct.
105 (2) An actor commits the offense of distribution of intimate images if the actor[
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107 third party any intimate image of an individual who is 18 years of age or older and knows or
108 should know that the distribution would cause a reasonable person to suffer emotional distress
109 or harm, if:
110 (a) the actor knows that the depicted individual has not given consent to the actor to
111 distribute the intimate image;
112 (b) the intimate image was created by or provided to the actor under circumstances in
113 which the individual has a reasonable expectation of privacy; and
114 (c) actual emotional distress or harm is caused to the person as a result of the
115 distribution under this section.
116 (3) This section does not apply to:
117 (a) (i) lawful practices of law enforcement agencies;
118 (ii) prosecutorial agency functions;
119 (iii) the reporting of a criminal offense;
120 (iv) court proceedings or any other judicial proceeding; or
121 (v) lawful and generally accepted medical practices and procedures;
122 (b) an intimate image if the individual portrayed in the image voluntarily allows public
123 exposure of the image; [
124 (c) an intimate image that is portrayed in a lawful commercial setting[
125 (d) an intimate image that is related to a matter of public concern or interest.
126 (4) (a) This section does not apply to an Internet service provider or interactive
127 computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
128 communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service,
129 information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a
130 commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined
131 in 47 U.S.C. Sec. 522, if:
132 (i) the distribution of an intimate image by the Internet service provider occurs only
133 incidentally through the provider's function of:
134 (A) transmitting or routing data from one person to another person; or
135 (B) providing a connection between one person and another person;
136 (ii) the provider does not intentionally aid or abet in the distribution of the intimate
137 image; and
138 (iii) the provider does not knowingly receive from or through a person who distributes
139 the intimate image a fee greater than the fee generally charged by the provider, as a specific
140 condition for permitting the person to distribute the intimate image.
141 (b) This section does not apply to a hosting company, as defined in Section
142 76-10-1230, if:
143 (i) the distribution of an intimate image by the hosting company occurs only
144 incidentally through the hosting company's function of providing data storage space or data
145 caching to a person;
146 (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
147 of the intimate image; and
148 (iii) the hosting company does not knowingly receive from or through a person who
149 distributes the intimate image a fee greater than the fee generally charged by the provider, as a
150 specific condition for permitting the person to distribute, store, or cache the intimate image.
151 (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
152 section if it complies with Section 76-10-1231.
153 (5) (a) Distribution of an intimate image is a class A misdemeanor except under
154 Subsection (5)(b).
155 (b) Distribution of an intimate image is a third degree felony on a second or subsequent
156 conviction for an offense under this section that arises from a separate criminal episode as
157 defined in Section 76-1-401.