Chief Sponsor: Andrew Stoddard

Senate Sponsor: Jani Iwamoto


8     General Description:
9          This bill provides criminal penalties for the misuse of evidence in certain types of
10     criminal actions.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms; and
14          ▸     provides criminal penalties for any individual to duplicate, share, copy, or display
15     an intimate image during a criminal action.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          76-5b-203, as last amended by Laws of Utah 2019, Chapter 378
23     ENACTS:
24          76-5b-203.5, Utah Code Annotated 1953

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 76-5b-203 is amended to read:
28          76-5b-203. Distribution of an intimate image -- Penalty.

29          (1) As used in this section:
30          (a) "Distribute" means selling, exhibiting, displaying, wholesaling, retailing, providing,
31     giving, granting admission to, providing access to, or otherwise transferring or presenting an
32     image to another individual, with or without consideration.
33          (b) "Intimate image" means any visual depiction, photograph, film, video, recording,
34     picture, or computer or computer-generated image or picture, whether made or produced by
35     electronic, mechanical, or other means, that depicts:
36          (i) exposed human male or female genitals or pubic area, with less than an opaque
37     covering;
38          (ii) a female breast with less than an opaque covering, or any portion of the female
39     breast below the top of the areola; or
40          (iii) the individual engaged in any sexually explicit conduct.
41          (c) "Sexually explicit conduct" means actual or simulated:
42          (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
43     whether between persons of the same or opposite sex;
44          (ii) masturbation;
45          (iii) bestiality;
46          (iv) sadistic or masochistic activities;
47          (v) exhibition of the genitals, pubic region, buttocks, or female breast of any
48     individual;
49          (vi) visual depiction of nudity or partial nudity;
50          (vii) fondling or touching of the genitals, pubic region, buttocks, or female breast; or
51          (viii) explicit representation of the defecation or urination functions.
52          (d) "Simulated sexually explicit conduct" means a feigned or pretended act of sexually
53     explicit conduct that duplicates, within the perception of an average person, the appearance of
54     an actual act of sexually explicit conduct.
55          (2) An actor commits the offense of distribution of intimate images if the actor

56     knowingly or intentionally distributes to any third party, or knowingly duplicates or copies, any
57     intimate image of an individual who is 18 years of age or older and knows or should know that
58     the distribution, duplication or copying would cause a reasonable person to suffer emotional
59     distress or harm, if:
60          (a) the actor [knows that] has not received consent from the depicted individual [has
61     not given consent to the actor] to distribute the intimate image;
62          (b) the intimate image was created by or provided to the actor under circumstances in
63     which the individual has a reasonable expectation of privacy; and
64          (c) actual emotional distress or harm is caused to the person as a result of the
65     distribution under this section.
66          (3) This section does not apply to:
67          (a) except as provided in Section 76-5b-203.5:
68          (i) lawful practices of law enforcement agencies;
69          (ii) prosecutorial agency functions;
70          (iii) the reporting of a criminal offense;
71          (iv) court proceedings or any other judicial proceeding; or
72          (v) lawful and generally accepted medical practices and procedures;
73          (b) an intimate image if the individual portrayed in the image voluntarily allows public
74     exposure of the image;
75          (c) an intimate image that is portrayed in a lawful commercial setting; or
76          (d) an intimate image that is related to a matter of public concern or interest.
77          (4) (a) This section does not apply to an Internet service provider or interactive
78     computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
79     communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service,
80     information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a
81     commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined
82     in 47 U.S.C. Sec. 522, if:

83          (i) the distribution of an intimate image by the Internet service provider occurs only
84     incidentally through the provider's function of:
85          (A) transmitting or routing data from one person to another person; or
86          (B) providing a connection between one person and another person;
87          (ii) the provider does not intentionally aid or abet in the distribution of the intimate
88     image; and
89          (iii) the provider does not knowingly receive from or through a person who distributes
90     the intimate image a fee greater than the fee generally charged by the provider, as a specific
91     condition for permitting the person to distribute the intimate image.
92          (b) This section does not apply to a hosting company, as defined in Section
93     76-10-1230, if:
94          (i) the distribution of an intimate image by the hosting company occurs only
95     incidentally through the hosting company's function of providing data storage space or data
96     caching to a person;
97          (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
98     of the intimate image; and
99          (iii) the hosting company does not knowingly receive from or through a person who
100     distributes the intimate image a fee greater than the fee generally charged by the provider, as a
101     specific condition for permitting the person to distribute, store, or cache the intimate image.
102          (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
103     section if it complies with Section 76-10-1231.
104          (5) (a) Distribution of an intimate image is a class A misdemeanor except under
105     Subsection (5)(b).
106          (b) Distribution of an intimate image is a third degree felony on a second or subsequent
107     conviction for an offense under this section that arises from a separate criminal episode as
108     defined in Section 76-1-401.
109          Section 2. Section 76-5b-203.5 is enacted to read:

110          76-5b-203.5. Misuse of intimate image during a criminal action.
111          (1) As used in this section, "intimate image" has the same meaning as in Section
112     76-5b-203.
113          (2) Any actor who obtains access to an intimate image in the course of a criminal
114     action as defined in Subsection 77-1-3(1) may not intentionally display, duplicate, copy, or
115     share the intimate image, unless:
116          (a) displaying, duplicating, copying, or sharing the intimate image is done solely for the
117     purpose of the adjudication, defense, prosecution or investigation of a criminal matter
118     involving the intimate image;
119          (b) each individual who is the subject of the intimate image gives written permission to
120     display, duplicate, copy, or share the intimate image; or
121          (c) the intimate image was not created by or provided to the actor under circumstances
122     in which the depicted individual has a reasonable expectation of privacy.
123          (3) An actor who violates Subsection (2) is guilty of:
124          (a) a class A misdemeanor for a first offense; or
125          (b) a third degree felony for each subsequent offense.
126          (4) Nothing in this section precludes an agency that employs an individual who is
127     involved in a criminal action from establishing internal policies for an individual's violation of
128     this section.