1     
REVENGE PORN AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Craig Hall

5     
Senate Sponsor: Todd D. Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the requirement of proving actual emotional distress or harm for the
10     offense of distribution of intimate images.
11     Highlighted Provisions:
12          This bill:
13          ▸     provides that actual emotional distress or harm to the subject of a distributed
14     intimate image is not an element of the offense in certain circumstances; and
15          ▸     makes technical changes.
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     

24     Be it enacted by the Legislature of the state of Utah:
25          Section 1. Section 76-5b-203 is amended to read:
26          76-5b-203. Distribution of an intimate image -- Penalty.
27          (1) As used in this section:
28          (a) "Distribute" means selling, exhibiting, displaying, wholesaling, retailing, providing,
29     giving, granting admission to, providing access to, or otherwise transferring or presenting an
30     image to another individual, with or without consideration.
31          (b) "Intimate image" means any visual depiction, photograph, film, video, recording,
32     picture, or computer or computer-generated image or picture, whether made or produced by
33     electronic, mechanical, or other means, that depicts:
34          (i) exposed human male or female genitals or pubic area, with less than an opaque
35     covering;
36          (ii) a female breast with less than an opaque covering, or any portion of the female
37     breast below the top of the areola; or
38          (iii) the individual engaged in any sexually explicit conduct.
39          (c) "Sexually explicit conduct" means actual or simulated:
40          (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
41     whether between persons of the same or opposite sex;
42          (ii) masturbation;
43          (iii) bestiality;
44          (iv) sadistic or masochistic activities;
45          (v) exhibition of the genitals, pubic region, buttocks, or female breast of any
46     individual;
47          (vi) visual depiction of nudity or partial nudity;
48          (vii) fondling or touching of the genitals, pubic region, buttocks, or female breast; or
49          (viii) explicit representation of the defecation or urination functions.
50          (d) "Simulated sexually explicit conduct" means a feigned or pretended act of sexually
51     explicit conduct that duplicates, within the perception of an average person, the appearance of
52     an actual act of sexually explicit conduct.
53          (2) (a) An actor commits the offense of distribution of an intimate [images] image if:
54          (i) the actor knowingly or intentionally distributes to [any] a third party [any] an
55     intimate image of an individual who is 18 years [of age] old or older and knows or should
56     know that the distribution would cause a reasonable person to suffer emotional distress or
57     harm[, if:];
58          [(a)] (ii) the actor knows that the [depicted] individual depicted in the image has not
59     given consent to the actor to distribute the intimate image;
60          [(b)] (iii) the intimate image was created by or provided to the actor under
61     circumstances in which the individual depicted in the image has a reasonable expectation of
62     privacy; and
63          [(c)] (iv) except as provided in Subsection (2)(b), actual emotional distress or harm is
64     caused to the [person] individual depicted in the image as a result of the distribution [under this
65     section].
66          (b) Subsection (2)(a)(iv) is not an element of the offense described in Subsection (2)(a)
67     if:
68          (i) the individual depicted in the intimate image was the victim of a crime;
69          (ii) the intimate image was provided to law enforcement as part of an investigation or
70     prosecution of a crime committed against the victim;
71          (iii) the intimate image was distributed without a legitimate law enforcement or
72     investigative purpose by an individual who had access to the intimate image due to the
73     individual's association with the investigation or prosecution described in Subsection (2)(b)(ii);
74     and
75          (iv) the victim is incapacitated or deceased.
76          (3) This section does not apply to:
77          (a) (i) lawful practices of law enforcement agencies;
78          (ii) prosecutorial agency functions;
79          (iii) the reporting of a criminal offense;
80          (iv) court proceedings or any other judicial proceeding; or
81          (v) lawful and generally accepted medical practices and procedures;
82          (b) an intimate image if the individual portrayed in the image voluntarily allows public
83     exposure of the image;
84          (c) an intimate image that is portrayed in a lawful commercial setting; or
85          (d) an intimate image that is related to a matter of public concern or interest.
86          (4) (a) This section does not apply to an Internet service provider or interactive
87     computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
88     communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service,
89     information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a
90     commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined
91     in 47 U.S.C. Sec. 522, if:
92          (i) the distribution of an intimate image by the Internet service provider occurs only
93     incidentally through the provider's function of:
94          (A) transmitting or routing data from one person to another person; or
95          (B) providing a connection between one person and another person;
96          (ii) the provider does not intentionally aid or abet in the distribution of the intimate
97     image; and
98          (iii) the provider does not knowingly receive from or through a person who distributes
99     the intimate image a fee greater than the fee generally charged by the provider, as a specific
100     condition for permitting the person to distribute the intimate image.
101          (b) This section does not apply to a hosting company, as defined in Section
102     76-10-1230, if:
103          (i) the distribution of an intimate image by the hosting company occurs only
104     incidentally through the hosting company's function of providing data storage space or data
105     caching to a person;
106          (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
107     of the intimate image; and
108          (iii) the hosting company does not knowingly receive from or through a person who
109     distributes the intimate image a fee greater than the fee generally charged by the provider, as a
110     specific condition for permitting the person to distribute, store, or cache the intimate image.
111          (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
112     section if it complies with Section 76-10-1231.
113          (5) (a) Distribution of an intimate image is a class A misdemeanor except under
114     Subsection (5)(b).
115          (b) Distribution of an intimate image is a third degree felony on a second or subsequent
116     conviction for an offense under this section that arises from a separate criminal episode as
117     defined in Section 76-1-401.