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7 LONG TITLE
8 General Description:
9 This bill creates the offense of the unlawful distribution of a counterfeit intimate image.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ creates the offense of unlawful distribution of a counterfeit intimate image;
14 ▸ creates the offense of aggravated unlawful distribution of a counterfeit intimate
15 image; and
16 ▸ imposes penalties.
17 Money Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 77-36-1, as last amended by Laws of Utah 2020, Chapter 142
24 ENACTS:
25 76-5b-205, Utah Code Annotated 1953
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27 Be it enacted by the Legislature of the state of Utah:
28 Section 1. Section 76-5b-205 is enacted to read:
29 76-5b-205. Unlawful distribution of a counterfeit intimate image -- Penalty.
30 (1) As used in this section:
31 (a) "Child" means an individual under the age of 18.
32 (b) "Counterfeit intimate image" means any visual depiction, photograph, film, video,
33 recording, picture, or computer or computer-generated image or picture, whether made or
34 produced by electronic, mechanical, or other means, that has been edited, manipulated, or
35 altered to depict the likeness of an identifiable individual and purports to, or is made to appear
36 to, depict that individual's:
37 (i) exposed human male or female genitals or pubic area, with less than an opaque
38 covering;
39 (ii) a female breast with less than an opaque covering, or any portion of the female
40 breast below the top of the areola; or
41 (iii) the individual engaged in any sexually explicit conduct or simulated sexually
42 explicit conduct.
43 (c) "Distribute" means the same as that term is defined in Section 76-5b-203.
44 (d) "Sexually explicit conduct" means the same as that term is defined in Section
45 76-5b-203.
46 (e) "Simulated sexually explicit conduct" means the same as that term is defined in
47 Section 76-5b-203.
48 (2) An actor commits the offense of unlawful distribution of a counterfeit intimate
49 image if the actor knowingly or intentionally distributes a counterfeit intimate image that the
50 actor knows or should reasonably know would cause a reasonable person to suffer emotional or
51 physical distress or harm, if:
52 (a) the actor has not received consent from the depicted individual to distribute the
53 counterfeit intimate image; and
54 (b) the counterfeit intimate image was created or provided by the actor without the
55 knowledge and consent of the depicted individual.
56 (3) An individual commits aggravated unlawful distribution of a counterfeit intimate
57 image if, in committing the offense described in Subsection (2), the individual depicted in the
58 counterfeit intimate image is a child.
59 (4) This section does not apply to:
60 (a) (i) lawful practices of law enforcement agencies;
61 (ii) prosecutorial agency functions;
62 (iii) the reporting of a criminal offense;
63 (iv) court proceedings or any other judicial proceeding; or
64 (v) lawful and generally accepted medical practices and procedures;
65 (b) a counterfeit intimate image if the individual portrayed in the image voluntarily
66 allows public exposure of the image;
67 (c) a counterfeit intimate image that is portrayed in a lawful commercial setting; or
68 (d) a counterfeit intimate image that is related to a matter of public concern or interest
69 or protected by the First Amendment to the United States Constitution or Article I, Sections 1
70 and 15 of the Utah Constitution.
71 (5) (a) This section does not apply to an Internet service provider or interactive
72 computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
73 communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service,
74 information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a
75 commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined
76 in 47 U.S.C. Sec. 522, if:
77 (i) the distribution of a counterfeit intimate image by the Internet service provider
78 occurs only incidentally through the provider's function of:
79 (A) transmitting or routing data from one person to another person; or
80 (B) providing a connection between one person and another person;
81 (ii) the provider does not intentionally aid or abet in the distribution of the counterfeit
82 intimate image; and
83 (iii) the provider does not knowingly receive from or through a person who distributes
84 the counterfeit intimate image a fee greater than the fee generally charged by the provider, as a
85 specific condition for permitting the person to distribute the counterfeit intimate image.
86 (b) This section does not apply to a hosting company, as defined in Section
87 76-10-1230, if:
88 (i) the distribution of a counterfeit intimate image by the hosting company occurs only
89 incidentally through the hosting company's function of providing data storage space or data
90 caching to a person;
91 (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
92 of the counterfeit intimate image;
93 (iii) the hosting company does not knowingly receive from or through a person who
94 distributes the counterfeit intimate image a fee greater than the fee generally charged by the
95 provider, as a specific condition for permitting the person to distribute, store, or cache the
96 counterfeit intimate image; and
97 (iv) the hosting company immediately removes the counterfeit intimate image upon
98 notice from a law enforcement agency, prosecutorial agency, or the individual purportedly
99 depicted in the counterfeit intimate image.
100 (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
101 section if it complies with Section 76-10-1231.
102 (6) This section does not apply to an actor who engages in conduct that constitutes a
103 violation of this section to the extent that the actor is chargeable, for the same conduct, under
104 Section 76-5b-201, sexual exploitation of a minor.
105 (7) (a) Except as provided in Subsection (7)(b), knowing or intentional unlawful
106 distribution of a counterfeit intimate image is a class A misdemeanor.
107 (b) Knowing or intentional unlawful distribution of a counterfeit intimate image is a
108 third degree felony on a second or subsequent conviction for an offense under this section that
109 arises from a separate criminal episode as defined in Section 76-1-401.
110 (c) Except as provided in Subsection (7)(d), knowing or intentional aggravated
111 unlawful distribution of a counterfeit intimate image is a third degree felony.
112 (d) Knowing or intentional aggravated unlawful distribution of a counterfeit intimate
113 image is a second degree felony on a second or subsequent conviction for an offense under this
114 section that arises from a separate criminal episode as defined in Section 76-1-401.
115 Section 2. Section 77-36-1 is amended to read:
116 77-36-1. Definitions.
117 As used in this chapter:
118 (1) "Cohabitant" means the same as that term is defined in Section 78B-7-102.
119 (2) "Department" means the Department of Public Safety.
120 (3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
121 3, Divorce.
122 (4) "Domestic violence" or "domestic violence offense" means any criminal offense
123 involving violence or physical harm or threat of violence or physical harm, or any attempt,
124 conspiracy, or solicitation to commit a criminal offense involving violence or physical harm,
125 when committed by one cohabitant against another. "Domestic violence" or "domestic
126 violence offense" includes commission or attempt to commit, any of the following offenses by
127 one cohabitant against another:
128 (a) aggravated assault, as described in Section 76-5-103;
129 (b) aggravated cruelty to an animal, as described in Subsection 76-9-301(4), with the
130 intent to harass or threaten the other cohabitant;
131 (c) assault, as described in Section 76-5-102;
132 (d) criminal homicide, as described in Section 76-5-201;
133 (e) harassment, as described in Section 76-5-106;
134 (f) electronic communication harassment, as described in Section 76-9-201;
135 (g) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
136 76-5-301, 76-5-301.1, and 76-5-302;
137 (h) mayhem, as described in Section 76-5-105;
138 (i) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
139 Section 76-5b-201, Sexual exploitation of a minor -- Offenses;
140 (j) stalking, as described in Section 76-5-106.5;
141 (k) unlawful detention or unlawful detention of a minor, as described in Section
142 76-5-304;
143 (l) violation of a protective order or ex parte protective order, as described in Section
144 76-5-108;
145 (m) any offense against property described in Title 76, Chapter 6, Part 1, Property
146 Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6,
147 Part 3, Robbery;
148 (n) possession of a deadly weapon with criminal intent, as described in Section
149 76-10-507;
150 (o) discharge of a firearm from a vehicle, near a highway, or in the direction of any
151 person, building, or vehicle, as described in Section 76-10-508;
152 (p) disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly
153 conduct is the result of a plea agreement in which the defendant was originally charged with a
154 domestic violence offense otherwise described in this Subsection (4), except that a conviction
155 of disorderly conduct as a domestic violence offense, in the manner described in this
156 Subsection (4)(p), does not constitute a misdemeanor crime of domestic violence under 18
157 U.S.C. Sec. 921, and is exempt from the federal Firearms Act, 18 U.S.C. Sec. 921 et seq.;
158 (q) child abuse, as described in Section 76-5-109.1;
159 (r) threatening use of a dangerous weapon, as described in Section 76-10-506;
160 (s) threatening violence, as described in Section 76-5-107;
161 (t) tampering with a witness, as described in Section 76-8-508;
162 (u) retaliation against a witness or victim, as described in Section 76-8-508.3;
163 (v) unlawful distribution of an intimate image, as described in Section 76-5b-203, or
164 unlawful distribution of a counterfeit intimate image, as described in Section 76-5b-205;
165 (w) sexual battery, as described in Section 76-9-702.1;
166 (x) voyeurism, as described in Section 76-9-702.7;
167 (y) damage to or interruption of a communication device, as described in Section
168 76-6-108; or
169 (z) an offense described in Subsection 78B-7-806(1).
170 (5) "Jail release agreement" means the same as that term is defined in Section
171 78B-7-801.
172 (6) "Jail release court order" means the same as that term is defined in Section
173 78B-7-801.
174 (7) "Marital status" means married and living together, divorced, separated, or not
175 married.
176 (8) "Married and living together" means a couple whose marriage was solemnized
177 under Section 30-1-4 or 30-1-6 and who are living in the same residence.
178 (9) "Not married" means any living arrangement other than married and living together,
179 divorced, or separated.
180 (10) "Protective order" includes an order issued under Subsection 78B-7-804(3).
181 (11) "Pretrial protective order" means a written order:
182 (a) specifying and limiting the contact a person who has been charged with a domestic
183 violence offense may have with an alleged victim or other specified individuals; and
184 (b) specifying other conditions of release under Sections 78B-7-802 or 78B-7-803,
185 pending trial in the criminal case.
186 (12) "Sentencing protective order" means a written order of the court as part of
187 sentencing in a domestic violence case that limits the contact a person who has been convicted
188 of a domestic violence offense may have with a victim or other specified individuals under
189 Section 78B-7-804.
190 (13) "Separated" means a couple who have had their marriage solemnized under
191 Section 30-1-4 or 30-1-6 and who are not living in the same residence.
192 (14) "Victim" means a cohabitant who has been subjected to domestic violence.