1     
ARTIFICIAL PORNOGRAPHIC IMAGES AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Ariel Defay

5     
Senate Sponsor: Chris H. Wilson

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions in Title 76, Chapter 5b, Sexual Exploitation Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     clarifies that certain prohibited materials in Title 76, Chapter 5b, Sexual
13     Exploitation Act, includes computer-generated videos; and
14          ▸     makes technical and conforming changes.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     AMENDS:
21          76-5b-103, as last amended by Laws of Utah 2023, Chapter 231
22          76-5b-203, as last amended by Laws of Utah 2022, Chapter 181
23          76-5b-204, as last amended by Laws of Utah 2022, Chapters 181, 184 and last amended
24     by Coordination Clause, Laws of Utah 2022, Chapter 184
25          76-5b-205, as last amended by Laws of Utah 2022, Chapters 112, 181 and 185 and last
26     amended by Coordination Clause, Laws of Utah 2022, Chapter 185
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 76-5b-103 is amended to read:
30          76-5b-103. Definitions.
31          As used in this chapter:
32          (1) "Child sexual abuse material" means any visual depiction, including any live
33     performance, photograph, film, video, picture, or computer or computer-generated image [or],
34     picture, or video, whether made or produced by electronic, mechanical, or other means, of
35     sexually explicit conduct, where:
36          (a) the production of the visual depiction involves the use of a minor engaging in
37     sexually explicit conduct;
38          (b) the visual depiction is of a minor engaging in sexually explicit conduct; or
39          (c) the visual depiction has been created, adapted, or modified to appear that an
40     identifiable minor is engaging in sexually explicit conduct.
41          (2) "Distribute" means [the selling, exhibiting, displaying, wholesaling, retailing,
42     providing, giving, granting admission to, or otherwise transferring or presenting child sexual
43     abuse material or vulnerable adult sexual abuse material with or without consideration], with or
44     without consideration, to sell, exhibit, display, provide, give, grant admission to, provide
45     access to, or otherwise transfer.
46          (3) "Identifiable minor" means [a person] an individual:
47          (a) (i) who was a minor at the time the visual depiction was created, adapted, or
48     modified; or
49          (ii) whose image as a minor was used in creating, adapting, or modifying the visual
50     depiction; and
51          (b) who is recognizable as an actual [person] individual by the [person's] individual's
52     face, likeness, or other distinguishing characteristic, such as a birthmark, or other recognizable
53     feature.
54          (4) "Identifiable vulnerable adult" means [a person] an individual:
55          (a) (i) who was a vulnerable adult at the time the visual depiction was created, adapted,
56     or modified; or
57          (ii) whose image as a vulnerable adult was used in creating, adapting, or modifying the
58     visual depiction; and
59          (b) who is recognizable as an actual [person] individual by the [person's] individual's
60     face, likeness, or other distinguishing characteristic, such as a birthmark, or other recognizable
61     feature.
62          (5) "Lacks capacity to consent" [is as] means the same as that term is defined in
63     Section 76-5-111.4.
64          (6) "Live performance" means any act, play, dance, pantomime, song, or other activity
65     performed by live actors in person.
66          (7) "Minor" means [a person] an individual younger than 18 years old.
67          (8) "Nudity or partial nudity" means any state of dress or undress in which the human
68     genitals, pubic region, buttocks, or the female breast, at a point below the top of the areola, is
69     less than completely and opaquely covered.
70          (9) "Produce" means:
71          (a) the photographing, filming, taping, directing, producing, creating, designing, or
72     composing of child sexual abuse material or vulnerable adult sexual abuse material; or
73          (b) the securing or hiring of [persons] individuals to engage in the photographing,
74     filming, taping, directing, producing, creating, designing, or composing of child sexual abuse
75     material or vulnerable adult sexual abuse material.
76          (10) "Sexually explicit conduct" means actual or simulated:
77          (a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
78     whether between [persons] individuals of the same or opposite sex;
79          (b) masturbation;
80          (c) bestiality;
81          (d) sadistic or masochistic activities;
82          (e) lascivious exhibition of the genitals, pubic region, buttocks, or female breast of any
83     [person] individual;
84          (f) the visual depiction of nudity or partial nudity for the purpose of causing sexual
85     arousal of any [person] individual;
86          (g) the fondling or touching of the genitals, pubic region, buttocks, or female breast; or
87          (h) the explicit representation of the defecation or urination functions.
88          (11) "Simulated sexually explicit conduct" means a feigned or pretended act of
89     sexually explicit conduct which duplicates, within the perception of an average person, the
90     appearance of an actual act of sexually explicit conduct.
91          (12) "Vulnerable adult" [is as] means the same as that term is defined in Subsection
92     76-5-111(1).
93          (13) "Vulnerable adult sexual abuse material" means any visual depiction, including
94     any live performance, photograph, film, video, picture, or computer or computer-generated
95     image or picture, whether made or produced by electronic, mechanical, or other means, of
96     sexually explicit conduct, where:
97          (a) the production of the visual depiction involves the use of a vulnerable adult
98     engaging in sexually explicit conduct;
99          (b) the visual depiction is of a vulnerable adult engaging in sexually explicit conduct;
100     or
101          (c) the visual depiction has been created, adapted, or modified to appear that an
102     identifiable vulnerable adult is engaging in sexually explicit conduct.
103          Section 2. Section 76-5b-203 is amended to read:
104          76-5b-203. Distribution of an intimate image -- Penalty.
105          (1) (a) As used in this section:
106          [(i) "Distribute" means selling, exhibiting, displaying, wholesaling, retailing,
107     providing, giving, granting admission to, providing access to, or otherwise transferring or
108     presenting an image to another individual, with or without consideration.]
109          [(ii)] (i) "Intimate image" means any visual depiction, photograph, film, video,
110     recording, picture, or computer or computer-generated image [or], picture, or video, whether
111     made or produced by electronic, mechanical, or other means, that depicts:
112          (A) exposed human male or female genitals or pubic area, with less than an opaque
113     covering;
114          (B) a female breast with less than an opaque covering, or any portion of the female
115     breast below the top of the areola; or
116          (C) the individual engaged in any sexually explicit conduct.
117          [(iii)] (ii) "Sexually explicit conduct" means actual or simulated:
118          (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
119     whether between [persons] individuals of the same or opposite sex;
120          (B) masturbation;
121          (C) bestiality;
122          (D) sadistic or masochistic activities;
123          (E) exhibition of the genitals, pubic region, buttocks, or female breast of any
124     individual;
125          (F) visual depiction of nudity or partial nudity;
126          (G) fondling or touching of the genitals, pubic region, buttocks, or female breast; or
127          (H) explicit representation of the defecation or urination functions.
128          [(iv)] (iii) "Simulated sexually explicit conduct" means a feigned or pretended act of
129     sexually explicit conduct that duplicates, within the perception of an average person, the
130     appearance of an actual act of sexually explicit conduct.
131          [(v)] (iv) "Single criminal episode" means the same as that term is defined in Section
132     76-1-401.
133          (b) Terms defined in Section 76-1-101.5 apply to this section.
134          (2) (a) An actor commits the offense of distribution of an intimate image if:
135          (i) the actor knowingly or intentionally distributes to a third party, or knowingly
136     duplicates or copies an intimate image of an individual who is 18 years old or older and knows
137     or should know that the distribution, duplication or copying would cause a reasonable person to
138     suffer emotional distress or harm;
139          (ii) the actor has not received consent from the individual depicted in the image to
140     distribute the intimate image;
141          (iii) the intimate image was created by or provided to the actor under circumstances in
142     which the individual depicted in the image has a reasonable expectation of privacy; and
143          (iv) except as provided in Subsection (2)(b), actual emotional distress or harm is
144     caused to the individual depicted in the image as a result of the distribution.
145          (b) Subsection (2)(a)(iv) is not an element of the offense described in Subsection (2)(a)
146     if:
147          (i) the individual depicted in the intimate image was the victim of a crime;
148          (ii) the intimate image was provided to law enforcement as part of an investigation or
149     prosecution of a crime committed against the victim;
150          (iii) the intimate image was distributed without a legitimate law enforcement or
151     investigative purpose by an individual who had access to the intimate image due to the
152     individual's association with the investigation or prosecution described in Subsection (2)(b)(ii);
153     and
154          (iv) the victim is incapacitated or deceased.
155          (3) (a) A violation of Subsection (2) is a class A misdemeanor.
156          (b) Notwithstanding Subsection (3)(a), a violation of Subsection (2) is a third degree
157     felony on a second or subsequent conviction for an offense under this section that does not
158     arise from a single criminal episode.
159          (4) This section does not apply to:
160          (a) except as provided in Section 76-5b-203.5:
161          (i) lawful practices of law enforcement agencies;
162          (ii) prosecutorial agency functions;
163          (iii) the reporting of a criminal offense;
164          (iv) court proceedings or any other judicial proceeding; or
165          (v) lawful and generally accepted medical practices and procedures;
166          (b) an intimate image if the individual portrayed in the image voluntarily allows public
167     exposure of the image;
168          (c) an intimate image that is portrayed in a lawful commercial setting; or
169          (d) an intimate image that is related to a matter of public concern or interest.
170          (5) (a) This section does not apply to an Internet service provider or interactive
171     computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
172     communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service,
173     information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a
174     commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined
175     in 47 U.S.C. Sec. 522, if:
176          (i) the distribution of an intimate image by the Internet service provider occurs only
177     incidentally through the provider's function of:
178          (A) transmitting or routing data from one person to another person; or
179          (B) providing a connection between one person and another person;
180          (ii) the provider does not intentionally aid or abet in the distribution of the intimate
181     image; and
182          (iii) the provider does not knowingly receive from or through a person who distributes
183     the intimate image a fee greater than the fee generally charged by the provider, as a specific
184     condition for permitting the person to distribute the intimate image.
185          (b) This section does not apply to a hosting company, as defined in Section
186     76-10-1230, if:
187          (i) the distribution of an intimate image by the hosting company occurs only
188     incidentally through the hosting company's function of providing data storage space or data
189     caching to a person;
190          (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
191     of the intimate image; and
192          (iii) the hosting company does not knowingly receive from or through a person who
193     distributes the intimate image a fee greater than the fee generally charged by the provider, as a
194     specific condition for permitting the person to distribute, store, or cache the intimate image.
195          (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
196     section if it complies with Section 76-10-1231.
197          Section 3. Section 76-5b-204 is amended to read:
198          76-5b-204. Sexual extortion -- Penalties.
199          (1) (a) As used in this section:
200          (i) "Adult" means an individual 18 years [of age] old or older.
201          (ii) "Child" means any individual under the age of 18.
202          [(iii) "Distribute" means the same as that term is defined in Section 76-5b-203.]
203          [(iv)] (iii) "Intimate image" means the same as that term is defined in Section
204     76-5b-203.
205          [(v)] (iv) "Position of special trust" means the same as that term is defined in Section
206     76-5-404.1.
207          [(vi)] (v) "Sexually explicit conduct" means the same as that term is defined in Section
208     76-5b-203.
209          [(vii)] (vi) "Simulated sexually explicit conduct" means the same as that term is
210     defined in Section 76-5b-203.
211          [(viii) "Vulnerable adult" means the same as that term is defined in Section 76-5-111.]
212          (b) Terms defined in Section 76-1-101.5 apply to this section.
213          (2) (a) An actor commits the offense of sexual extortion if the actor:
214          (i) with an intent to coerce a victim to engage in sexual contact, in sexually explicit
215     conduct, or in simulated sexually explicit conduct, or to produce, provide, or distribute an
216     image, video, or other recording of any individual naked or engaged in sexually explicit
217     conduct, communicates by any means a threat:
218          (A) to the victim's person, property, or reputation; or
219          (B) to distribute an intimate image or video of the victim;
220          (ii) knowingly causes a victim to engage in sexual contact, in sexually explicit conduct,
221     or in simulated sexually explicit conduct, or to produce, provide, or distribute any image,
222     video, or other recording of any individual naked or engaged in sexually explicit conduct by
223     means of a threat:
224          (A) to the victim's person, property, or reputation; or
225          (B) to distribute an intimate image or video of the victim; or
226          (iii) with intent to obtain a thing of value from a victim communicates, by any means, a
227     threat to distribute an intimate image or video of the victim.
228          (b) An actor commits aggravated sexual extortion when, in conjunction with the
229     offense described in Subsection (2)(a), any of the following circumstances have been charged
230     and admitted or found true in the action for the offense:
231          (i) the victim is a child or vulnerable adult;
232          (ii) the offense was committed by the use of a dangerous weapon or by violence,
233     intimidation, menace, fraud, or threat of physical harm, or was committed during the course of
234     a kidnapping;
235          (iii) the actor caused bodily injury or severe psychological injury to the victim during
236     or as a result of the offense;
237          (iv) the actor was a stranger to the victim or became a friend of the victim for the
238     purpose of committing the offense;
239          (v) the actor, before sentencing for the offense, was previously convicted of any sexual
240     offense;
241          (vi) the actor occupied a position of special trust in relation to the victim;
242          (vii) the actor encouraged, aided, allowed, or benefitted from acts of prostitution or
243     sexual acts by the victim with any other individual, or sexual performance by the victim before
244     any other individual, human trafficking, or human smuggling; or
245          (viii) the actor caused the penetration, however slight, of the genital or anal opening of
246     the victim by any part or parts of the human body, or by any other object.
247          (3) (a) If the actor is an adult:
248          (i) A violation of Subsection (2)(a) is a third degree felony.
249          (ii) A violation of Subsection (2)(b) in which the victim is an adult is a second degree
250     felony.
251          (iii) A violation of Subsection (2)(b) in which the victim is a child or a vulnerable adult
252     is a first degree felony.
253          (b) If the actor is a child:
254          (i) A violation of Subsection (2)(a) is a class A misdemeanor.
255          (ii) A violation of Subsection (2)(b) is a third degree felony if there is more than a
256     two-year age gap between the actor and the victim.
257          (c) An actor commits a separate offense under this section:
258          (i) for each victim the actor subjects to the offense outlined in Subsection (2)(a); and
259          (ii) for each separate time the actor subjects a victim to the offense outlined Subsection
260     (2)(a).
261          (d) This section does not preclude an actor from being charged and convicted of a
262     separate criminal act if the actor commits the separate criminal act while the individual violates
263     or attempts to violate this section.
264          (4) An interactive computer service, as defined in 47 U.S.C. Sec. 230, is not subject to
265     liability under this section related to content provided by a user of the interactive computer
266     service.
267          Section 4. Section 76-5b-205 is amended to read:
268          76-5b-205. Unlawful distribution of a counterfeit intimate image -- Penalty.
269          (1) (a) As used in this section:
270          (i) "Child" means an individual under 18 years old.
271          (ii) "Counterfeit intimate image" means any visual depiction, photograph, film, video,
272     recording, picture, or computer or computer-generated image [or], picture, or video, whether
273     made or produced by electronic, mechanical, or other means, that has been edited, manipulated,
274     or altered to depict the likeness of an identifiable individual and purports to, or is made to
275     appear to, depict that individual's:
276          (A) exposed human male or female genitals or pubic area, with less than an opaque
277     covering;
278          (B) a female breast with less than an opaque covering, or any portion of the female
279     breast below the top of the areola; or
280          (C) the individual engaged in any sexually explicit conduct or simulated sexually
281     explicit conduct.
282          [(iii) "Distribute" means the same as that term is defined in Section 76-5b-203.]
283          [(iv)] (iii) "Sexually explicit conduct" means the same as that term is defined in
284     Section 76-5b-203.
285          [(v)] (iv) "Simulated sexually explicit conduct" means the same as that term is defined
286     in Section 76-5b-203.
287          [(vi)] (v) "Single criminal episode" means the same as that term is defined in Section
288     76-1-401.
289          (b) Terms defined in Section 76-1-101.5 apply to this section.
290          (2) (a) An actor commits the offense of unlawful distribution of a counterfeit intimate
291     image if the actor knowingly or intentionally distributes a counterfeit intimate image that the
292     actor knows or should reasonably know would cause a reasonable person to suffer emotional or
293     physical distress or harm, if:
294          (i) the actor has not received consent from the depicted individual to distribute the
295     counterfeit intimate image; and
296          (ii) the counterfeit intimate image was created or provided by the actor without the
297     knowledge and consent of the depicted individual.
298          (b) An actor who is 18 years old or older commits aggravated unlawful distribution of
299     a counterfeit intimate image if, in committing the offense described in Subsection (2)(a), the
300     individual depicted in the counterfeit intimate image is a child.
301          (3) (a) (i) A violation of Subsection (2)(a) that is knowing or intentional is a class A
302     misdemeanor.
303          (ii) Notwithstanding Subsection (3)(a)(i), a violation of Subsection (2)(a) that is
304     knowing or intentional is a third degree felony on a second or subsequent conviction for an
305     offense under this section that does not arise from a single criminal episode.
306          (b) (i) A violation of Subsection (2)(b) that is knowing or intentional is a third degree
307     felony.
308          (ii) Notwithstanding Subsection (3)(b)(i), a violation of Subsection (2)(b) that is
309     knowing or intentional is a second degree felony on a second or subsequent conviction for an
310     offense under this section that does not arise from a single criminal episode.
311          (c) This section does not apply to an actor who engages in conduct that constitutes a
312     violation of this section to the extent that the actor is chargeable, for the same conduct, under
313     Section 76-5b-201, sexual exploitation of a minor, or Section 76-5b-201.1, aggravated sexual
314     exploitation of a minor.
315          (4) This section does not apply to:
316          (a) (i) lawful practices of law enforcement agencies;
317          (ii) prosecutorial agency functions;
318          (iii) the reporting of a criminal offense;
319          (iv) court proceedings or any other judicial proceeding; or
320          (v) lawful and generally accepted medical practices and procedures;
321          (b) a counterfeit intimate image if the individual depicted in the image voluntarily
322     allows public exposure of the image;
323          (c) a counterfeit intimate image that is portrayed in a lawful commercial setting; or
324          (d) a counterfeit intimate image that is related to a matter of public concern or interest
325     or protected by the First Amendment to the United States Constitution or Article I, Sections 1
326     and 15 of the Utah Constitution.
327          (5) (a) This section does not apply to an Internet service provider or interactive
328     computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
329     communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service,
330     information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a
331     commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined
332     in 47 U.S.C. Sec. 522, if:
333          (i) the distribution of a counterfeit intimate image by the Internet service provider
334     occurs only incidentally through the provider's function of:
335          (A) transmitting or routing data from one person to another person; or
336          (B) providing a connection between one person and another person;
337          (ii) the provider does not intentionally aid or abet in the distribution of the counterfeit
338     intimate image; and
339          (iii) the provider does not knowingly receive from or through a person who distributes
340     the counterfeit intimate image a fee greater than the fee generally charged by the provider, as a
341     specific condition for permitting the person to distribute the counterfeit intimate image.
342          (b) This section does not apply to a hosting company, as defined in Section
343     76-10-1230, if:
344          (i) the distribution of a counterfeit intimate image by the hosting company occurs only
345     incidentally through the hosting company's function of providing data storage space or data
346     caching to a person;
347          (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
348     of the counterfeit intimate image;
349          (iii) the hosting company does not knowingly receive from or through a person who
350     distributes the counterfeit intimate image a fee greater than the fee generally charged by the
351     provider, as a specific condition for permitting the person to distribute, store, or cache the
352     counterfeit intimate image; and
353          (iv) the hosting company immediately removes the counterfeit intimate image upon
354     notice from a law enforcement agency, prosecutorial agency, or the individual purportedly
355     depicted in the counterfeit intimate image.
356          (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
357     section if it complies with Section 76-10-1231.
358          Section 5. Effective date.
359          This bill takes effect on May 1, 2024.