Senator Chris H. Wilson proposes the following substitute bill:


1     
SEXUAL ABUSE MATERIAL AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Chris H. Wilson

5     
House Sponsor: Paul A. Cutler

6     

7     LONG TITLE
8     General Description:
9          This bill addresses the reproduction and possession of sexual abuse material.
10     Highlighted Provisions:
11          This bill:
12          ▸     changes the term "child pornography" to "child sexual abuse material" in the Utah
13     Code;
14          ▸     changes the term "vulnerable adult pornography" to "vulnerable adult sexual abuse
15     material" in the Utah Code;
16          ▸     prohibits the reproduction of child sexual abuse material evidence;
17          ▸     allows a defendant's attorney or a defendant's expert to inspect child sexual abuse
18     material evidence at a government facility before trial;
19          ▸     allows a victim, the victim's attorney, or the victim's expert to inspect child sexual
20     abuse material evidence at a government facility before trial upon a showing of
21     good cause; and
22          ▸     makes technical and conforming changes.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:

26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          9-7-215, as last amended by Laws of Utah 2017, Chapter 208
30          24-1-102, as last amended by Laws of Utah 2022, Chapter 179
31          62A-1-122, as last amended by Laws of Utah 2021, Chapter 344
32          63G-2-103, as last amended by Laws of Utah 2021, Chapters 211, 283
33          67-5-21, as enacted by Laws of Utah 2006, Chapter 350
34          76-5b-103, as last amended by Laws of Utah 2022, Chapter 181
35          76-5b-201, as last amended by Laws of Utah 2022, Chapters 181, 185
36          76-5b-201.1, as enacted by Laws of Utah 2022, Chapter 185 and last amended by
37     Coordination Clause, Laws of Utah 2022, Chapter 185
38          76-5b-202, as last amended by Laws of Utah 2022, Chapter 181
39          76-10-1204.5, as enacted by Laws of Utah 2016, Chapter 313
40     ENACTS:
41          77-4-201, Utah Code Annotated 1953
42     RENUMBERS AND AMENDS:
43          77-4-101, (Renumbered from 77-4-1, as enacted by Laws of Utah 1980, Chapter 15)
44     

45     Be it enacted by the Legislature of the state of Utah:
46          Section 1. Section 9-7-215 is amended to read:
47          9-7-215. Internet and online access policy required.
48          (1) As used in this section:
49          (a) ["Child pornography" is as] "Child sexual abuse material" means the same as that
50     term is defined in Section 76-5b-103.
51          (b) "Harmful to minors" [is as] means the same as that term is defined in Section
52     76-10-1201.
53          (c) "Obscene" [is as] means the same as that term is defined in 20 U.S.C. Sec. 9101.
54          (d) "Technology protection measure" means a technology that blocks or filters Internet
55     access to visual depictions.
56          (2) State funds may not be provided to any public library that provides public access to

57     the Internet unless the library:
58          (a) (i) has in place a policy of Internet safety for minors, including the operation of a
59     technology protection measure:
60          (A) with respect to any computer or other device while connected to the Internet
61     through a network provided by the library, including a wireless network; and
62          (B) that protects against access to visual depictions that are:
63          (I) child [pornography] sexual abuse material;
64          (II) harmful to minors; or
65          (III) obscene; and
66          (ii) is enforcing the operation of the technology protection measure described in
67     Subsection (2)(a)(i) during any use by a minor of a computer or other device that is connected
68     to the Internet through a network provided by the library, including a wireless network; and
69          (b) (i) has in place a policy of Internet safety, including the operation of a technology
70     protection measure:
71          (A) with respect to any computer or other device while connected to the Internet
72     through a network provided by the library, including a wireless network; and
73          (B) that protects against access to visual depictions that are:
74          (I) child [pornography] sexual abuse material; or
75          (II) obscene; and
76          (ii) is enforcing the operation of the technology protection measure described in
77     Subsection (2)(b)(i) during any use of a computer or other device that is connected to the
78     Internet through a network provided by the library, including a wireless network.
79          (3) This section does not prohibit a public library from limiting Internet access or
80     otherwise protecting against materials other than the materials specified in this section.
81          (4) An administrator, supervisor, or other representative of a public library may disable
82     a technology protection measure described in Subsection (2):
83          (a) at the request of a library patron who is not a minor; and
84          (b) to enable access for research or other lawful purposes.
85          Section 2. Section 24-1-102 is amended to read:
86          24-1-102. Definitions.
87          As used in this title:

88          (1) "Account" means the Criminal Forfeiture Restricted Account created in Section
89     24-4-116.
90          (2) (a) "Acquitted" means a finding by a jury or a judge at trial that a claimant is not
91     guilty.
92          (b) "Acquitted" does not include:
93          (i) a verdict of guilty on a lesser or reduced charge;
94          (ii) a plea of guilty to a lesser or reduced charge; or
95          (iii) dismissal of a charge as a result of a negotiated plea agreement.
96          (3) (a) "Agency" means an agency of this state or a political subdivision of this state.
97          (b) "Agency" includes a law enforcement agency or a multijurisdictional task force.
98          (4) "Claimant" means:
99          (a) an owner of property as defined in this section;
100          (b) an interest holder as defined in this section; or
101          (c) an individual or entity who asserts a claim to any property seized for forfeiture
102     under this title.
103          (5) "Commission" means the State Commission on Criminal and Juvenile Justice
104     created in Section 63M-7-201.
105          (6) "Complaint" means a civil or criminal complaint seeking the forfeiture of any real
106     or personal property under this title.
107          (7) (a) "Computer" means an electronic, magnetic, optical, electrochemical, or other
108     high-speed data processing device that performs logical, arithmetic, and storage functions.
109          (b) "Computer" includes any device that is used for the storage of digital or electronic
110     files, flash memory, software, or other electronic information.
111          (c) "Computer" does not mean a computer server of an Internet or electronic service
112     provider, or the service provider's employee, if used to comply with the requirements under 18
113     U.S.C. Sec. 2258A.
114          (8) "Constructive seizure" means a seizure of property where the property is left in the
115     control of the owner and an agency posts the property with a notice of intent to seek forfeiture.
116          (9) (a) "Contraband" means any property, item, or substance that is unlawful to
117     produce or to possess under state or federal law.
118          (b) "Contraband" includes:

119          (i) a controlled substance that is possessed, transferred, distributed, or offered for
120     distribution in violation of Title 58, Chapter 37, Utah Controlled Substances Act; or
121          (ii) a computer that:
122          (A) contains or houses child [pornography] sexual abuse material, or is used to create,
123     download, transfer, upload to a storage account, or store any electronic or digital files
124     containing child [pornography] sexual abuse material; or
125          (B) contains the personal identifying information of another individual, as defined in
126     Subsection 76-6-1102(1), whether that individual is alive or deceased, and the personal
127     identifying information has been used to create false or fraudulent identification documents or
128     financial transaction cards in violation of Title 76, Chapter 6, Part 5, Fraud.
129          (10) "Forfeit" means to divest a claimant of an ownership interest in property seized
130     under this title.
131          (11) "Innocent owner" means a claimant who:
132          (a) held an ownership interest in property at the time of the commission of an offense
133     subjecting the property to forfeiture under this title, and:
134          (i) did not have actual knowledge of the offense subjecting the property to forfeiture; or
135          (ii) upon learning of the commission of the offense, took reasonable steps to prohibit
136     the use of the property in the commission of the offense; or
137          (b) acquired an ownership interest in the property and had no knowledge that the
138     commission of the offense subjecting the property to forfeiture under this title had occurred or
139     that the property had been seized for forfeiture, and:
140          (i) acquired the property in a bona fide transaction for value;
141          (ii) was an individual, including a minor child, who acquired an interest in the property
142     through probate or inheritance; or
143          (iii) was a spouse who acquired an interest in property through dissolution of marriage
144     or by operation of law.
145          (12) (a) "Interest holder" means a secured party as defined in Section 70A-9a-102, a
146     party with a right-of-offset, a mortgagee, lien creditor, or the beneficiary of a security interest
147     or encumbrance pertaining to an interest in property, whose interest would be perfected against
148     a good faith purchaser for value.
149          (b) "Interest holder" does not mean a person:

150          (i) who holds property for the benefit of or as an agent or nominee for another person;
151     or
152          (ii) who is not in substantial compliance with any statute requiring an interest in
153     property to be:
154          (A) recorded or reflected in public records in order to perfect the interest against a good
155     faith purchaser for value; or
156          (B) held in control by a secured party, as defined in Section 70A-9a-102, in accordance
157     with Section 70A-9a-314 in order to perfect the interest against a good faith purchaser for
158     value.
159          (13) "Known address" means any address provided by a claimant to the peace officer
160     or agency at the time the property is seized, or the claimant's most recent address on record
161     with a governmental entity if no address was provided at the time of the seizure.
162          (14) "Legal costs" means the costs and expenses incurred by a party in a forfeiture
163     action.
164          (15) "Legislative body" means:
165          (a) (i) the Legislature, county commission, county council, city commission, city
166     council, or town council that has fiscal oversight and budgetary approval authority over an
167     agency; or
168          (ii) the agency's governing political subdivision; or
169          (b) the lead governmental entity of a multijurisdictional task force, as designated in a
170     memorandum of understanding executed by the agencies participating in the task force.
171          (16) "Multijurisdictional task force" means a law enforcement task force or other
172     agency comprised of individuals who are employed by or acting under the authority of different
173     governmental entities, including federal, state, county, or municipal governments, or any
174     combination of federal, state, county, or municipal agencies.
175          (17) "Owner" means an individual or entity, other than an interest holder, that
176     possesses a bona fide legal or equitable interest in real or personal property.
177          (18) "Peace officer" means an employee:
178          (a) of an agency;
179          (b) whose duties consist primarily of the prevention and detection of violations of laws
180     of this state or a political subdivision of this state; and

181          (c) who is authorized by the agency to seize property under this title.
182          (19) (a) "Proceeds" means:
183          (i) property of any kind that is obtained directly or indirectly as a result of the
184     commission of an offense; or
185          (ii) any property acquired directly or indirectly from, produced through, realized
186     through, or caused by an act or omission regarding property under Subsection (19)(a)(i).
187          (b) "Proceeds" includes any property of any kind without reduction for expenses
188     incurred in the acquisition, maintenance, or production of that property, or any other purpose
189     regarding property under Subsection (19)(a)(i).
190          (c) "Proceeds" is not limited to the net gain or profit realized from the offense that
191     subjects the property to forfeiture.
192          (20) "Program" means the State Asset Forfeiture Grant Program created in Section
193     24-4-117.
194          (21) (a) "Property" means all property, whether real or personal, tangible or intangible.
195          (b) "Property" does not include contraband.
196          (22) "Prosecuting attorney" means:
197          (a) the attorney general and an assistant attorney general;
198          (b) a district attorney or deputy district attorney;
199          (c) a county attorney or assistant county attorney; and
200          (d) an attorney authorized to commence an action on behalf of the state under this title.
201          (23) "Public interest use" means a:
202          (a) use by a government agency as determined by the legislative body of the agency's
203     jurisdiction; or
204          (b) donation of the property to a nonprofit charity registered with the state.
205          (24) "Real property" means land, including any building, fixture, improvement,
206     appurtenance, structure, or other development that is affixed permanently to land.
207          Section 3. Section 62A-1-122 is amended to read:
208          62A-1-122. Child sexual abuse material.
209          (1) As used in this section:
210          (a) ["Child pornography"] "Child sexual abuse material" means the same as that term is
211     defined in Section 76-5b-103.

212          (b) "Secure" means to prevent and prohibit access, electronic upload, transmission, or
213     transfer of an image.
214          (2) The department or a division within the department may not retain child
215     [pornography] sexual abuse material longer than is necessary to comply with the requirements
216     of this section.
217          (3) When the department or a division within the department obtains child
218     [pornography] sexual abuse material as a result of an employee unlawfully viewing child
219     [pornography] sexual abuse material, the department or division shall consult with and follow
220     the guidance of the Division of Human Resource Management regarding personnel action and
221     local law enforcement regarding retention of the child [pornography] sexual abuse material.
222          (4) When the department or a division within the department obtains child
223     [pornography] sexual abuse material as a result of a report or an investigation, the department
224     or division shall immediately secure the child [pornography] sexual abuse material, or the
225     electronic device if the child [pornography] sexual abuse material is digital, and contact the law
226     enforcement office that has jurisdiction over the area where the division's case is located.
227          Section 4. Section 63G-2-103 is amended to read:
228          63G-2-103. Definitions.
229          As used in this chapter:
230          (1) "Audit" means:
231          (a) a systematic examination of financial, management, program, and related records
232     for the purpose of determining the fair presentation of financial statements, adequacy of
233     internal controls, or compliance with laws and regulations; or
234          (b) a systematic examination of program procedures and operations for the purpose of
235     determining their effectiveness, economy, efficiency, and compliance with statutes and
236     regulations.
237          (2) "Chronological logs" mean the regular and customary summary records of law
238     enforcement agencies and other public safety agencies that show:
239          (a) the time and general nature of police, fire, and paramedic calls made to the agency;
240     and
241          (b) any arrests or jail bookings made by the agency.
242          (3) "Classification," "classify," and their derivative forms mean determining whether a

243     record series, record, or information within a record is public, private, controlled, protected, or
244     exempt from disclosure under Subsection 63G-2-201(3)(b).
245          (4) (a) "Computer program" means:
246          (i) a series of instructions or statements that permit the functioning of a computer
247     system in a manner designed to provide storage, retrieval, and manipulation of data from the
248     computer system; and
249          (ii) any associated documentation and source material that explain how to operate the
250     computer program.
251          (b) "Computer program" does not mean:
252          (i) the original data, including numbers, text, voice, graphics, and images;
253          (ii) analysis, compilation, and other manipulated forms of the original data produced by
254     use of the program; or
255          (iii) the mathematical or statistical formulas, excluding the underlying mathematical
256     algorithms contained in the program, that would be used if the manipulated forms of the
257     original data were to be produced manually.
258          (5) (a) "Contractor" means:
259          (i) any person who contracts with a governmental entity to provide goods or services
260     directly to a governmental entity; or
261          (ii) any private, nonprofit organization that receives funds from a governmental entity.
262          (b) "Contractor" does not mean a private provider.
263          (6) "Controlled record" means a record containing data on individuals that is controlled
264     as provided by Section 63G-2-304.
265          (7) "Designation," "designate," and their derivative forms mean indicating, based on a
266     governmental entity's familiarity with a record series or based on a governmental entity's
267     review of a reasonable sample of a record series, the primary classification that a majority of
268     records in a record series would be given if classified and the classification that other records
269     typically present in the record series would be given if classified.
270          (8) "Elected official" means each person elected to a state office, county office,
271     municipal office, school board or school district office, local district office, or special service
272     district office, but does not include judges.
273          (9) "Explosive" means a chemical compound, device, or mixture:

274          (a) commonly used or intended for the purpose of producing an explosion; and
275          (b) that contains oxidizing or combustive units or other ingredients in proportions,
276     quantities, or packing so that:
277          (i) an ignition by fire, friction, concussion, percussion, or detonator of any part of the
278     compound or mixture may cause a sudden generation of highly heated gases; and
279          (ii) the resultant gaseous pressures are capable of:
280          (A) producing destructive effects on contiguous objects; or
281          (B) causing death or serious bodily injury.
282          (10) "Government audit agency" means any governmental entity that conducts an audit.
283          (11) (a) "Governmental entity" means:
284          (i) executive department agencies of the state, the offices of the governor, lieutenant
285     governor, state auditor, attorney general, and state treasurer, the Board of Pardons and Parole,
286     the Board of Examiners, the National Guard, the Career Service Review Office, the State
287     Board of Education, the Utah Board of Higher Education, and the State Archives;
288          (ii) the Office of the Legislative Auditor General, Office of the Legislative Fiscal
289     Analyst, Office of Legislative Research and General Counsel, the Legislature, and legislative
290     committees, except any political party, group, caucus, or rules or sifting committee of the
291     Legislature;
292          (iii) courts, the Judicial Council, the Administrative Office of the Courts, and similar
293     administrative units in the judicial branch;
294          (iv) any state-funded institution of higher education or public education; or
295          (v) any political subdivision of the state, but, if a political subdivision has adopted an
296     ordinance or a policy relating to information practices pursuant to Section 63G-2-701, this
297     chapter shall apply to the political subdivision to the extent specified in Section 63G-2-701 or
298     as specified in any other section of this chapter that specifically refers to political subdivisions.
299          (b) "Governmental entity" also means:
300          (i) every office, agency, board, bureau, committee, department, advisory board, or
301     commission of an entity listed in Subsection (11)(a) that is funded or established by the
302     government to carry out the public's business;
303          (ii) as defined in Section 11-13-103, an interlocal entity or joint or cooperative
304     undertaking;

305          (iii) as defined in Section 11-13a-102, a governmental nonprofit corporation;
306          (iv) an association as defined in Section 53G-7-1101;
307          (v) the Utah Independent Redistricting Commission; and
308          (vi) a law enforcement agency, as defined in Section 53-1-102, that employs one or
309     more law enforcement officers, as defined in Section 53-13-103.
310          (c) "Governmental entity" does not include the Utah Educational Savings Plan created
311     in Section 53B-8a-103.
312          (12) "Gross compensation" means every form of remuneration payable for a given
313     period to an individual for services provided including salaries, commissions, vacation pay,
314     severance pay, bonuses, and any board, rent, housing, lodging, payments in kind, and any
315     similar benefit received from the individual's employer.
316          (13) "Individual" means a human being.
317          (14) (a) "Initial contact report" means an initial written or recorded report, however
318     titled, prepared by peace officers engaged in public patrol or response duties describing official
319     actions initially taken in response to either a public complaint about or the discovery of an
320     apparent violation of law, which report may describe:
321          (i) the date, time, location, and nature of the complaint, the incident, or offense;
322          (ii) names of victims;
323          (iii) the nature or general scope of the agency's initial actions taken in response to the
324     incident;
325          (iv) the general nature of any injuries or estimate of damages sustained in the incident;
326          (v) the name, address, and other identifying information about any person arrested or
327     charged in connection with the incident; or
328          (vi) the identity of the public safety personnel, except undercover personnel, or
329     prosecuting attorney involved in responding to the initial incident.
330          (b) Initial contact reports do not include follow-up or investigative reports prepared
331     after the initial contact report. However, if the information specified in Subsection (14)(a)
332     appears in follow-up or investigative reports, it may only be treated confidentially if it is
333     private, controlled, protected, or exempt from disclosure under Subsection 63G-2-201(3)(b).
334          (c) Initial contact reports do not include accident reports, as that term is described in
335     Title 41, Chapter 6a, Part 4, Accident Responsibilities.

336          (15) "Legislative body" means the Legislature.
337          (16) "Notice of compliance" means a statement confirming that a governmental entity
338     has complied with an order of the State Records Committee.
339          (17) "Person" means:
340          (a) an individual;
341          (b) a nonprofit or profit corporation;
342          (c) a partnership;
343          (d) a sole proprietorship;
344          (e) other type of business organization; or
345          (f) any combination acting in concert with one another.
346          (18) "Private provider" means any person who contracts with a governmental entity to
347     provide services directly to the public.
348          (19) "Private record" means a record containing data on individuals that is private as
349     provided by Section 63G-2-302.
350          (20) "Protected record" means a record that is classified protected as provided by
351     Section 63G-2-305.
352          (21) "Public record" means a record that is not private, controlled, or protected and that
353     is not exempt from disclosure as provided in Subsection 63G-2-201(3)(b).
354          (22) (a) "Record" means a book, letter, document, paper, map, plan, photograph, film,
355     card, tape, recording, electronic data, or other documentary material regardless of physical form
356     or characteristics:
357          (i) that is prepared, owned, received, or retained by a governmental entity or political
358     subdivision; and
359          (ii) where all of the information in the original is reproducible by photocopy or other
360     mechanical or electronic means.
361          (b) "Record" does not mean:
362          (i) a personal note or personal communication prepared or received by an employee or
363     officer of a governmental entity:
364          (A) in a capacity other than the employee's or officer's governmental capacity; or
365          (B) that is unrelated to the conduct of the public's business;
366          (ii) a temporary draft or similar material prepared for the originator's personal use or

367     prepared by the originator for the personal use of an individual for whom the originator is
368     working;
369          (iii) material that is legally owned by an individual in the individual's private capacity;
370          (iv) material to which access is limited by the laws of copyright or patent unless the
371     copyright or patent is owned by a governmental entity or political subdivision;
372          (v) proprietary software;
373          (vi) junk mail or a commercial publication received by a governmental entity or an
374     official or employee of a governmental entity;
375          (vii) a book that is cataloged, indexed, or inventoried and contained in the collections
376     of a library open to the public;
377          (viii) material that is cataloged, indexed, or inventoried and contained in the collections
378     of a library open to the public, regardless of physical form or characteristics of the material;
379          (ix) a daily calendar or other personal note prepared by the originator for the
380     originator's personal use or for the personal use of an individual for whom the originator is
381     working;
382          (x) a computer program that is developed or purchased by or for any governmental
383     entity for its own use;
384          (xi) a note or internal memorandum prepared as part of the deliberative process by:
385          (A) a member of the judiciary;
386          (B) an administrative law judge;
387          (C) a member of the Board of Pardons and Parole; or
388          (D) a member of any other body, other than an association or appeals panel as defined
389     in Section 53G-7-1101, charged by law with performing a quasi-judicial function;
390          (xii) a telephone number or similar code used to access a mobile communication
391     device that is used by an employee or officer of a governmental entity, provided that the
392     employee or officer of the governmental entity has designated at least one business telephone
393     number that is a public record as provided in Section 63G-2-301;
394          (xiii) information provided by the Public Employees' Benefit and Insurance Program,
395     created in Section 49-20-103, to a county to enable the county to calculate the amount to be
396     paid to a health care provider under Subsection 17-50-319(2)(e)(ii);
397          (xiv) information that an owner of unimproved property provides to a local entity as

398     provided in Section 11-42-205;
399          (xv) a video or audio recording of an interview, or a transcript of the video or audio
400     recording, that is conducted at a Children's Justice Center established under Section 67-5b-102;
401          (xvi) child [pornography] sexual abuse material, as defined by Section 76-5b-103;
402          (xvii) before final disposition of an ethics complaint occurs, a video or audio recording
403     of the closed portion of a meeting or hearing of:
404          (A) a Senate or House Ethics Committee;
405          (B) the Independent Legislative Ethics Commission;
406          (C) the Independent Executive Branch Ethics Commission, created in Section
407     63A-14-202; or
408          (D) the Political Subdivisions Ethics Review Commission established in Section
409     63A-15-201; or
410          (xviii) confidential communication described in Section 58-60-102, 58-61-102, or
411     58-61-702.
412          (23) "Record series" means a group of records that may be treated as a unit for
413     purposes of designation, description, management, or disposition.
414          (24) "Records officer" means the individual appointed by the chief administrative
415     officer of each governmental entity, or the political subdivision to work with state archives in
416     the care, maintenance, scheduling, designation, classification, disposal, and preservation of
417     records.
418          (25) "Schedule," "scheduling," and their derivative forms mean the process of
419     specifying the length of time each record series should be retained by a governmental entity for
420     administrative, legal, fiscal, or historical purposes and when each record series should be
421     transferred to the state archives or destroyed.
422          (26) "Sponsored research" means research, training, and other sponsored activities as
423     defined by the federal Executive Office of the President, Office of Management and Budget:
424          (a) conducted:
425          (i) by an institution within the state system of higher education defined in Section
426     53B-1-102; and
427          (ii) through an office responsible for sponsored projects or programs; and
428          (b) funded or otherwise supported by an external:

429          (i) person that is not created or controlled by the institution within the state system of
430     higher education; or
431          (ii) federal, state, or local governmental entity.
432          (27) "State archives" means the Division of Archives and Records Service created in
433     Section 63A-12-101.
434          (28) "State archivist" means the director of the state archives.
435          (29) "State Records Committee" means the State Records Committee created in
436     Section 63G-2-501.
437          (30) "Summary data" means statistical records and compilations that contain data
438     derived from private, controlled, or protected information but that do not disclose private,
439     controlled, or protected information.
440          Section 5. Section 67-5-21 is amended to read:
441          67-5-21. Internet Crimes Against Children (ICAC) unit creation -- Duties --
442     Employment of staff.
443          (1) There is created within the Office of the Attorney General the Internet Crimes
444     Against Children (ICAC) unit to investigate and prosecute cases involving child [pornography]
445     sexual abuse material and cases involving enticing minors over the Internet into illegal sexual
446     acts.
447          (2) The attorney general may employ investigators, prosecutors, and necessary support
448     staff for the unit created under Subsection (1).
449          Section 6. Section 76-5b-103 is amended to read:
450          76-5b-103. Definitions.
451          As used in this chapter:
452          (1) ["Child pornography"] "Child sexual abuse material" means any visual depiction,
453     including any live performance, photograph, film, video, picture, or computer or
454     computer-generated image or picture, whether made or produced by electronic, mechanical, or
455     other means, of sexually explicit conduct, where:
456          (a) the production of the visual depiction involves the use of a minor engaging in
457     sexually explicit conduct;
458          (b) the visual depiction is of a minor engaging in sexually explicit conduct; or
459          (c) the visual depiction has been created, adapted, or modified to appear that an

460     identifiable minor is engaging in sexually explicit conduct.
461          (2) "Distribute" means the selling, exhibiting, displaying, wholesaling, retailing,
462     providing, giving, granting admission to, or otherwise transferring or presenting child
463     [pornography] sexual abuse material or vulnerable adult [pornography] sexual abuse material
464     with or without consideration.
465          (3) "Identifiable minor" means a person:
466          (a) (i) who was a minor at the time the visual depiction was created, adapted, or
467     modified; or
468          (ii) whose image as a minor was used in creating, adapting, or modifying the visual
469     depiction; and
470          (b) who is recognizable as an actual person by the person's face, likeness, or other
471     distinguishing characteristic, such as a birthmark, or other recognizable feature.
472          (4) "Identifiable vulnerable adult" means a person:
473          (a) (i) who was a vulnerable adult at the time the visual depiction was created, adapted,
474     or modified; or
475          (ii) whose image as a vulnerable adult was used in creating, adapting, or modifying the
476     visual depiction; and
477          (b) who is recognizable as an actual person by the person's face, likeness, or other
478     distinguishing characteristic, such as a birthmark, or other recognizable feature.
479          (5) "Lacks capacity to consent" is as defined in Section 76-5-111.4.
480          (6) "Live performance" means any act, play, dance, pantomime, song, or other activity
481     performed by live actors in person.
482          (7) "Minor" means a person younger than 18 years old.
483          (8) "Nudity or partial nudity" means any state of dress or undress in which the human
484     genitals, pubic region, buttocks, or the female breast, at a point below the top of the areola, is
485     less than completely and opaquely covered.
486          (9) "Produce" means:
487          (a) the photographing, filming, taping, directing, producing, creating, designing, or
488     composing of child [pornography] sexual abuse material or vulnerable adult [pornography]
489     sexual abuse material; or
490          (b) the securing or hiring of persons to engage in the photographing, filming, taping,

491     directing, producing, creating, designing, or composing of child [pornography] sexual abuse
492     material or vulnerable adult [pornography] sexual abuse material.
493          (10) "Sexually explicit conduct" means actual or simulated:
494          (a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
495     whether between persons of the same or opposite sex;
496          (b) masturbation;
497          (c) bestiality;
498          (d) sadistic or masochistic activities;
499          (e) lascivious exhibition of the genitals, pubic region, buttocks, or female breast of any
500     person;
501          (f) the visual depiction of nudity or partial nudity for the purpose of causing sexual
502     arousal of any person;
503          (g) the fondling or touching of the genitals, pubic region, buttocks, or female breast; or
504          (h) the explicit representation of the defecation or urination functions.
505          (11) "Simulated sexually explicit conduct" means a feigned or pretended act of
506     sexually explicit conduct which duplicates, within the perception of an average person, the
507     appearance of an actual act of sexually explicit conduct.
508          (12) "Vulnerable adult" is as defined in Subsection 76-5-111(1).
509          (13) "Vulnerable adult [pornography] sexual abuse material" means any visual
510     depiction, including any live performance, photograph, film, video, picture, or computer or
511     computer-generated image or picture, whether made or produced by electronic, mechanical, or
512     other means, of sexually explicit conduct, where:
513          (a) the production of the visual depiction involves the use of a vulnerable adult
514     engaging in sexually explicit conduct;
515          (b) the visual depiction is of a vulnerable adult engaging in sexually explicit conduct;
516     or
517          (c) the visual depiction has been created, adapted, or modified to appear that an
518     identifiable vulnerable adult is engaging in sexually explicit conduct.
519          Section 7. Section 76-5b-201 is amended to read:
520          76-5b-201. Sexual exploitation of a minor -- Offenses.
521          (1) Terms defined in Section 76-1-101.5 apply to this section.

522          (2) An actor commits sexual exploitation of a minor when the actor knowingly
523     possesses or intentionally views child [pornography] sexual abuse material.
524          (3) (a) A violation of Subsection (2) is a second degree felony.
525          (b) It is a separate offense under this section:
526          (i) for each minor depicted in the child [pornography] sexual abuse material; and
527          (ii) for each time the same minor is depicted in different child [pornography] sexual
528     abuse material.
529          (4) (a) It is an affirmative defense to a charge of violating this section that no minor
530     was actually depicted in the visual depiction or used in producing or advertising the visual
531     depiction.
532          (b) For a charge of violating this section, it is an affirmative defense that:
533          (i) the defendant:
534          (A) did not solicit the child [pornography] sexual abuse material from the minor
535     depicted in the child [pornography] sexual abuse material;
536          (B) is not more than two years older than the minor depicted in the child [pornography]
537     sexual abuse material; and
538          (C) upon request of a law enforcement agent or the minor depicted in the child
539     [pornography] sexual abuse material, removes from an electronic device or destroys the child
540     pornography and all copies of the child [pornography] sexual abuse material in the defendant's
541     possession; and
542          (ii) the child [pornography] sexual abuse material does not depict an offense under
543     Chapter 5, Part 4, Sexual Offenses.
544          (5) In proving a violation of this section in relation to an identifiable minor, proof of
545     the actual identity of the identifiable minor is not required.
546          (6) [This section may not be construed to impose criminal or civil liability on] The
547     following are not criminally or civilly liable under this section when acting in good faith
548     compliance with Section 77-4-201:
549          (a) an entity or an employee, director, officer, or agent of an entity when acting within
550     the scope of employment, for the good faith performance of:
551          (i) reporting or data preservation duties required under federal or state law; or
552          (ii) implementing a policy of attempting to prevent the presence of child [pornography]

553     sexual abuse material on tangible or intangible property, or of detecting and reporting the
554     presence of child [pornography] sexual abuse material on the property;
555          (b) a law enforcement officer acting within the scope of a criminal investigation;
556          (c) an employee of a court who may be required to view child [pornography] sexual
557     abuse material during the course of and within the scope of the employee's employment;
558          (d) a juror who may be required to view child [pornography] sexual abuse material
559     during the course of the individual's service as a juror;
560          (e) an attorney or employee of an attorney who is required to view child [pornography]
561     sexual abuse material during the course of a judicial process and while acting within the scope
562     of employment;
563          (f) an employee of the Department of Human Services who is required to view child
564     [pornography] sexual abuse material within the scope of the employee's employment; or
565          (g) an attorney who is required to view child [pornography] sexual abuse material
566     within the scope of the attorney's responsibility to represent the Department of Human
567     Services, including the divisions and offices within the Department of Human Services.
568          Section 8. Section 76-5b-201.1 is amended to read:
569          76-5b-201.1. Aggravated sexual exploitation of a minor.
570          (1) As used in this section:
571          (a) "Physical abuse" or "physically abused" means the same as the term "physical
572     abuse" is defined in Section 80-1-102.
573          (b) The terms defined in Section 76-1-101.5 apply to this section.
574          (2) An actor commits aggravated sexual exploitation of a minor if the actor:
575          (a) intentionally distributes child [pornography] sexual abuse material;
576          (b) knowingly produces child [pornography] sexual abuse material; or
577          (c) is the minor's parent or legal guardian and knowingly consents to or permits the
578     minor to be sexually exploited as described in Subsection (2)(a) or (b) or Section 76-5b-201.
579          (3) (a) Except as provided in Subsection (3)(b) or (c), a violation of Subsection (2) is a
580     first degree felony.
581          (b) If an actor is under 18 years old at the time of the offense, a violation of Subsection
582     (2) is a second degree felony.
583          (c) A violation of Subsection (2)(a) is a second degree felony if the child [pornography]

584     sexual abuse material depicts an individual who is:
585          (i) 14 years old or older; or
586          (ii) pubescent.
587          (4) It is a separate offense under this section:
588          (a) for each minor depicted in the child [pornography] sexual abuse material; and
589          (b) for each time the same minor is depicted in different child [pornography] sexual
590     abuse material.
591          (5) (a) It is an affirmative defense to a charge of violating this section that no minor
592     was actually depicted in the visual depiction or used in producing or advertising the visual
593     depiction.
594          (b) In proving a violation of this section in relation to an identifiable minor, proof of
595     the actual identity of the identifiable minor is not required.
596          (6) [This section may not be construed to impose criminal or civil liability on] The
597     following are not criminally or civilly liable under this section when acting in good faith
598     compliance with Section 77-4-201:
599          (a) an entity or an employee, director, officer, or agent of an entity when acting within
600     the scope of employment, for the good faith performance of:
601          (i) reporting or data preservation duties required under federal or state law; or
602          (ii) implementing a policy of attempting to prevent the presence of child [pornography]
603     sexual abuse material on tangible or intangible property, or of detecting and reporting the
604     presence of child [pornography] sexual abuse material on the property;
605          (b) a law enforcement officer acting within the scope of a criminal investigation;
606          (c) an employee of a court who may be required to view child [pornography] sexual
607     abuse material during the course of and within the scope of the employee's employment;
608          (d) a juror who may be required to view child [pornography] sexual abuse material
609     during the course of the individual's service as a juror;
610          (e) an attorney or employee of an attorney who is required to view child [pornography]
611     sexual abuse material during the course of a judicial process and while acting within the scope
612     of employment;
613          (f) an employee of the Department of Health and Human Services who is required to
614     view child [pornography] sexual abuse material within the scope of the employee's

615     employment; or
616          (g) an attorney who is required to view child [pornography] sexual abuse material
617     within the scope of the attorney's responsibility to represent the Department of Health and
618     Human Services, including the divisions and offices within the Department of Health and
619     Human Services.
620          Section 9. Section 76-5b-202 is amended to read:
621          76-5b-202. Sexual exploitation of a vulnerable adult -- Offenses.
622          (1) Terms defined in Section 76-1-101.5 apply to this section.
623          (2) An actor commits sexual exploitation of a vulnerable adult if the actor:
624          (a) (i) (A) knowingly produces, possesses, or possesses with intent to distribute
625     material that the actor knows is vulnerable adult [pornography] sexual abuse material; or
626          (B) intentionally distributes or views material that the actor knows is vulnerable adult
627     [pornography] sexual abuse material; and
628          (ii) the vulnerable adult who appears in, or is depicted in, the vulnerable adult
629     [pornography] sexual abuse material lacks capacity to consent to the conduct described in
630     Subsection (2)(a); or
631          (b) is a vulnerable adult's legal guardian and knowingly consents to, or permits the
632     vulnerable adult to be, sexually exploited as described in Subsection (2)(a).
633          (3) (a) A violation of Subsection (2) is a third degree felony.
634          (b) It is a separate offense under this section:
635          (i) for each vulnerable adult depicted in the vulnerable adult [pornography] sexual
636     abuse material; and
637          (ii) for each time the same vulnerable adult is depicted in different vulnerable adult
638     [pornography] sexual abuse material.
639          (4) It is an affirmative defense to a charge of violating this section that no vulnerable
640     adult was actually depicted in the visual depiction or used in producing or advertising the
641     visual depiction.
642          (5) In proving a violation of this section in relation to an identifiable vulnerable adult,
643     proof of the actual identity of the identifiable vulnerable adult is not required.
644          (6) This section may not be construed to impose criminal or civil liability on:
645          (a) any entity or an employee, director, officer, or agent of an entity, when acting

646     within the scope of employment, for the good faith performance of:
647          (i) reporting or data preservation duties required under any federal or state law; or
648          (ii) implementing a policy of attempting to prevent the presence of vulnerable adult
649     [pornography] sexual abuse material on any tangible or intangible property, or of detecting and
650     reporting the presence of vulnerable adult [pornography] sexual abuse material on the property;
651     or
652          (b) any law enforcement officer acting within the scope of a criminal investigation.
653          Section 10. Section 76-10-1204.5 is amended to read:
654          76-10-1204.5. Reporting of child sexual abuse material by a computer technician.
655          (1) As used in this section:
656          (a) ["Child pornography"] "Child sexual abuse material" means the same as that term
657     is defined in Section 76-5b-103.
658          (b) "Computer technician" or "technician" means an individual who in the course and
659     scope of the individual's employment for compensation installs, maintains, troubleshoots,
660     upgrades, or repairs computer hardware, software, personal computer networks, or peripheral
661     equipment.
662          (c) "Image" means an image of child [pornography] sexual abuse material or an image
663     that a computer technician reasonably believes is child [pornography] sexual abuse material.
664          (2) (a) A computer technician who in the course of employment for compensation
665     views an image on a computer or other electronic device that is or appears to be child
666     [pornography] sexual abuse material shall immediately report the finding of the image to:
667          (i) a state or local law enforcement agency, or the Cyber Tip Line at the National
668     Center for Missing and Exploited Children; or
669          (ii) an employee designated by the employer of the computer technician in accordance
670     with Subsection (3).
671          (b) A computer technician who willfully does not report an image as required under
672     Subsection (2)(a) is guilty of a class B misdemeanor.
673          (c) The identity of the computer technician who reports an image shall be confidential,
674     except as necessary for the criminal investigation and the judicial process.
675          (d) (i) If the computer technician makes or does not make a report under this section in
676     good faith, the technician is immune from any criminal or civil liability related to reporting or

677     not reporting the image.
678          (ii) In this Subsection (2)(d), good faith may be presumed from an employee's or
679     employer's previous course of conduct when the employee or employer has made appropriate
680     reports.
681          (e) It is a defense to prosecution under this section that the computer technician did not
682     report the image because the technician reasonably believed the image did not depict a person
683     younger than 18 years [of age] old.
684          (3) (a) An employer of a computer technician may implement a procedure that
685     requires:
686          (i) the computer technician report an image as is required under Subsection (2)(a) to an
687     employee designated by the employer to receive the report of the image; and
688          (ii) the designated employee to immediately forward the report provided by the
689     computer technician to an agency under Subsection (2)(a)(i).
690          (b) Compliance by the computer technician and the designated employee with the
691     reporting process under Subsection (3)(a) is compliance with the reporting requirement of this
692     section and establishes immunity under Subsection (2)(d).
693          (4) This section does not apply to an Internet service provider or interactive computer
694     service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic communications
695     service as defined in 18 U.S.C. Sec. 2510, a telecommunications service, information service,
696     or mobile service as defined in 47 U.S.C. Sec. 153, including a commercial mobile service as
697     defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined in 47 U.S.C. Sec. 522, if the
698     provider reports the image in compliance with 18 U.S.C. 2258A or a successor federal statute
699     that requires reporting by a provider of an image of child [pornography] sexual abuse material.
700          Section 11. Section 77-4-101, which is renumbered from Section 77-4-1 is renumbered
701     and amended to read:
702     
CHAPTER 4. PLEADINGS AND PROCEEDINGS BEFORE TRIAL

703     
Part 1. Suppression of Resistance to Service of Process

704          [77-4-1].      77-4-101. Force by officer -- Arrest.
705          A public officer authorized to execute process issued by any court may use such force
706     as is reasonable and necessary to execute service of process. If necessary, he may seize, arrest,
707     and confine persons resisting or aiding and abetting resistance to his service of process.

708          Section 12. Section 77-4-201 is enacted to read:
709     
Part 2. Evidence

710          77-4-201. Reproduction of child sexual abuse material -- Prohibition.
711          (1) As used in this section:
712          (a) "Child sexual abuse material" means the same as that term is defined in Section
713     76-5b-103.
714          (b) "Law enforcement agency" means the same as that term is defined in Section
715     53-1-102.
716          (c) "Victim" means the same as that term is defined in Section 77-37-2.
717          (2) In a proceeding involving child sexual abuse material, the child sexual abuse
718     material shall remain in the care, custody, and control of:
719          (a) a law enforcement agency; or
720          (b) a court.
721          (3) (a) In a proceeding involving child sexual abuse material, a court shall deny a
722     request by a defendant to copy, photograph, duplicate, or otherwise reproduce the child sexual
723     abuse material if the court or a law enforcement agency provides the defendant's attorney or an
724     individual the defendant may seek to qualify as an expert an adequate opportunity to view and
725     examine the child sexual abuse material.
726          (b) An individual described in Subsection (3)(a) may view or examine the child sexual
727     abuse material only at the law enforcement agency or court that has custody and control of the
728     child sexual abuse material.
729          (c) A defendant who is self represented:
730          (i) may not inspect the child sexual abuse material; and
731          (ii) may request that the court appoint counsel for the purpose of inspecting the child
732     sexual abuse material on behalf of the defendant.
733          (4) (a) In a proceeding involving child sexual abuse material, a victim, the victim's
734     attorney, or an individual the victim may, upon a showing of good cause, seek to qualify as an
735     expert, may view and examine the child sexual abuse material that depicts the victim upon a
736     showing of good cause.
737          (b) An individual described in Subsection (4)(a) may not copy, photograph, duplicate,
738     or otherwise reproduce the child sexual abuse material.

739          (c) An individual described in Subsection (4)(a) may view or examine the child sexual
740     abuse material only at the law enforcement agency or court that has custody and control of the
741     child sexual abuse material.
742          (d) The court or law enforcement agency may redact the child sexual abuse material
743     described in this Subsection (4) to protect the privacy of a third party.