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7 LONG TITLE
8 General Description:
9 This bill modifies the requirement of actual emotional distress or harm from the offense
10 of distribution of intimate images.
11 Highlighted Provisions:
12 This bill:
13 ▸ modifies the requirement of demonstrating actual emotional distress or harm to the
14 subject of the distributed intimate images from the offense of distribution of
15 intimate images; and
16 ▸ makes technical changes.
17 Money Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 76-5b-203, as last amended by Laws of Utah 2019, Chapter 378
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25 Be it enacted by the Legislature of the state of Utah:
26 Section 1. Section 76-5b-203 is amended to read:
27 76-5b-203. Distribution of an intimate image -- Penalty.
28 (1) As used in this section:
29 (a) "Distribute" means selling, exhibiting, displaying, wholesaling, retailing, providing,
30 giving, granting admission to, providing access to, or otherwise transferring or presenting an
31 image to another individual, with or without consideration.
32 (b) "Intimate image" means any visual depiction, photograph, film, video, recording,
33 picture, or computer or computer-generated image or picture, whether made or produced by
34 electronic, mechanical, or other means, that depicts:
35 (i) exposed human male or female genitals or pubic area, with less than an opaque
36 covering;
37 (ii) a female breast with less than an opaque covering, or any portion of the female
38 breast below the top of the areola; or
39 (iii) the individual engaged in any sexually explicit conduct.
40 (c) "Sexually explicit conduct" means actual or simulated:
41 (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
42 whether between persons of the same or opposite sex;
43 (ii) masturbation;
44 (iii) bestiality;
45 (iv) sadistic or masochistic activities;
46 (v) exhibition of the genitals, pubic region, buttocks, or female breast of any
47 individual;
48 (vi) visual depiction of nudity or partial nudity;
49 (vii) fondling or touching of the genitals, pubic region, buttocks, or female breast; or
50 (viii) explicit representation of the defecation or urination functions.
51 (d) "Simulated sexually explicit conduct" means a feigned or pretended act of sexually
52 explicit conduct that duplicates, within the perception of an average person, the appearance of
53 an actual act of sexually explicit conduct.
54 (2) (a) An actor commits the offense of distribution of an intimate [
55 (i) the actor knowingly or intentionally distributes to [
56 intimate image of an individual who is 18 years [
57 know that the distribution would cause a reasonable person to suffer emotional distress or
58 harm[
59 [
60 given consent to the actor to distribute the intimate image;
61 [
62 circumstances in which the individual depicted in the image has a reasonable expectation of
63 privacy; and
64 [
65 caused to the [
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67 (b) Subsection (2)(a)(iv) is not an element of the offense described in Subsection (2)(a)
68 if the individual depicted in the intimate image is incapacitated or deceased.
69 (3) This section does not apply to:
70 (a) (i) lawful practices of law enforcement agencies;
71 (ii) prosecutorial agency functions;
72 (iii) the reporting of a criminal offense;
73 (iv) court proceedings or any other judicial proceeding; or
74 (v) lawful and generally accepted medical practices and procedures;
75 (b) an intimate image if the individual portrayed in the image voluntarily allows public
76 exposure of the image;
77 (c) an intimate image that is portrayed in a lawful commercial setting; or
78 (d) an intimate image that is related to a matter of public concern or interest.
79 (4) (a) This section does not apply to an Internet service provider or interactive
80 computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
81 communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service,
82 information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a
83 commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined
84 in 47 U.S.C. Sec. 522, if:
85 (i) the distribution of an intimate image by the Internet service provider occurs only
86 incidentally through the provider's function of:
87 (A) transmitting or routing data from one person to another person; or
88 (B) providing a connection between one person and another person;
89 (ii) the provider does not intentionally aid or abet in the distribution of the intimate
90 image; and
91 (iii) the provider does not knowingly receive from or through a person who distributes
92 the intimate image a fee greater than the fee generally charged by the provider, as a specific
93 condition for permitting the person to distribute the intimate image.
94 (b) This section does not apply to a hosting company, as defined in Section
95 76-10-1230, if:
96 (i) the distribution of an intimate image by the hosting company occurs only
97 incidentally through the hosting company's function of providing data storage space or data
98 caching to a person;
99 (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
100 of the intimate image; and
101 (iii) the hosting company does not knowingly receive from or through a person who
102 distributes the intimate image a fee greater than the fee generally charged by the provider, as a
103 specific condition for permitting the person to distribute, store, or cache the intimate image.
104 (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
105 section if it complies with Section 76-10-1231.
106 (5) (a) Distribution of an intimate image is a class A misdemeanor except under
107 Subsection (5)(b).
108 (b) Distribution of an intimate image is a third degree felony on a second or subsequent
109 conviction for an offense under this section that arises from a separate criminal episode as
110 defined in Section 76-1-401.