Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 141 (2019GS)

Sponsor

Rep. Ray, P.

Final action

House/ filed 3/14/2019

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• defines terms;
• increases the penalty for sexual exploitation of a minor when the offense is committed under certain circumstances, including by a family member or an individual in a position of special trust in relation to the minor, or against an infant or toddler; and
• makes technical changes.

Every vote on this bill

Bill text

AGGRAVATED SEXUAL EXPLOITATION OF A MINOR
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Paul Ray
Senate Sponsor: 
 Don L. Ipson
LONG TITLE
General Description:
This bill increases the penalty for sexual exploitation of a minor under certain
circumstances.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ increases the penalty for sexual exploitation of a minor when the offense is
committed under certain circumstances, including by a family member or an
individual in a position of special trust in relation to the minor, or against an infant
or toddler; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-5b-103
, as last amended by Laws of Utah 2013, Chapter 290
76-5b-201
, as last amended by Laws of Utah 2018, Chapter 285
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-5b-103
 is amended to read:
76-5b-103.
Definitions.
As used in this chapter:
(1) "Child pornography" means any visual depiction, including any live performance,
photograph, film, video, picture, or computer or computer-generated image or picture, whether
made or produced by electronic, mechanical, or other means, of sexually explicit conduct,
where:
(a) the production of the visual depiction involves the use of a minor engaging in
sexually explicit conduct;
(b) the visual depiction is of a minor engaging in sexually explicit conduct; or
(c) the visual depiction has been created, adapted, or modified to appear that an
identifiable minor is engaging in sexually explicit conduct.
(2) "Distribute" means the selling, exhibiting, displaying, wholesaling, retailing,
providing, giving, granting admission to, or otherwise transferring or presenting child
pornography or vulnerable adult pornography with or without consideration.
(3) "Family member" means an adult who is a parent, grandparent, great grandparent,
aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, stepparent, first cousin,
stepsibling, or sibling.
[
(3)
] 
(4)
 "Identifiable minor" means [
a person
] 
an individual
:
(a) (i) who was a minor at the time the visual depiction was created, adapted, or
modified; or
(ii) whose image as a minor was used in creating, adapting, or modifying the visual
depiction; and
(b) who is recognizable as an actual [
person
] 
individual
 by the [
person's
] 
individual's
face, likeness, or other distinguishing characteristic, such as a birthmark, or other recognizable
feature.
[
(4)
] 
(5)
 "Identifiable vulnerable adult" means [
a person
] 
an individual
:
(a) (i) who was a vulnerable adult at the time the visual depiction was created, adapted,
or modified; or
(ii) whose image as a vulnerable adult was used in creating, adapting, or modifying the
visual depiction; and
(b) who is recognizable as an actual [
person
] 
individual
 by the [
person's
] 
individual's
face, likeness, or other distinguishing characteristic, such as a birthmark, or other recognizable
feature.
(6) "Infant or toddler" means an individual under five years of age.
[
(5)
] 
(7)
 "Lacks capacity to consent" is as defined in Subsection 
76-5-111
(1).
[
(6)
] 
(8)
 "Live performance" means any act, play, dance, pantomime, song, or other
activity performed by live actors in person.
[
(7)
] 
(9)
 "Minor" means [
a person
] 
an individual
 younger than 18 years of age.
[
(8)
] 
(10)
 "Nudity or partial nudity" means any state of dress or undress in which the
human genitals, pubic region, buttocks, or the female breast, at a point below the top of the
areola, is less than completely and opaquely covered.
[
(9)
] 
(11)
 "Produce" means:
(a) the photographing, filming, taping, directing, producing, creating, designing, or
composing of child pornography or vulnerable adult pornography; or
(b) the securing or hiring of persons to engage in the photographing, filming, taping,
directing, producing, creating, designing, or composing of child pornography or vulnerable
adult pornography.
[
(10)
] 
(12)
 "Sexually explicit conduct" means actual or simulated:
(a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex;
(b) masturbation;
(c) bestiality;
(d) sadistic or masochistic activities;
(e) lascivious exhibition of the genitals, pubic region, buttocks, or female breast of any
person;
(f) the visual depiction of nudity or partial nudity for the purpose of causing sexual
arousal of any person;
(g) the fondling or touching of the genitals, pubic region, buttocks, or female breast; or
(h) the explicit representation of the defecation or urination functions.
[
(11)
] 
(13)
 "Simulated sexually explicit conduct" means a feigned or pretended act of
sexually explicit conduct which duplicates, within the perception of an average person, the
appearance of an actual act of sexually explicit conduct.
[
(12)
] 
(14)
 "Vulnerable adult" is as defined in Subsection 
76-5-111
(1).
[
(13)
] 
(15)
 "Vulnerable adult pornography" means any visual depiction, including any
live performance, photograph, film, video, picture, or computer or computer-generated image
or picture, whether made or produced by electronic, mechanical, or other means, of sexually
explicit conduct, where:
(a) the production of the visual depiction involves the use of a vulnerable adult
engaging in sexually explicit conduct;
(b) the visual depiction is of a vulnerable adult engaging in sexually explicit conduct;
or
(c) the visual depiction has been created, adapted, or modified to appear that an
identifiable vulnerable adult is engaging in sexually explicit conduct.
Section 2. Section 
76-5b-201
 is amended to read:
76-5b-201.
Sexual exploitation of a minor -- Offenses.
(1) A person is guilty of sexual exploitation of a minor:
(a) when the person:
(i) knowingly produces, possesses, or possesses with intent to distribute child
pornography; or
(ii) intentionally distributes or views child pornography; or
(b) if the person is a minor's [
parent or
] 
family member,
 legal guardian
, or holds a
position of special trust, as defined in Section 
76-5-404.1
, in relation to the minor,
 and
knowingly consents to or permits the minor to be sexually exploited as described in Subsection
(1)(a).
(2) 
(a)
 [
Sexual
] 
Except as provided in Subsection (2)(b), sexual
 exploitation of a minor
is a second degree felony.
(b) Sexual exploitation of a minor is a first degree felony which may be punishable by
a term of imprisonment of not less than three years and which may be for life if:
(i) the person knowingly produces child pornography;
(ii) the person is the minor's family member, legal guardian, or holds a position of
special trust, as defined in Section 
76-5-404.1
, in relation to the minor;
(iii) has been convicted of a prior sexual offense as defined in Subsection 
76-3-407
(1);
or
(iv) the offense involved a visual depiction of:
(A) an infant or toddler; or
(B) material that portrays violence, bestiality, or sadistic or masochistic activity.
(3) It is a separate offense under this section:
(a) for each minor depicted in the child pornography; and
(b) for each time the same minor is depicted in different child pornography.
(4) It is an affirmative defense to a charge of violating this section that no [
person
under 18 years of age
] 
minor
 was actually depicted in the visual depiction or used in producing
or advertising the visual depiction.
(5) In proving a violation of this section in relation to an identifiable minor, proof of
the actual identity of the identifiable minor is not required.
(6) This section may not be construed to impose criminal or civil liability on:
(a) an entity or an employee, director, officer, or agent of an entity when acting within
the scope of employment, for the good faith performance of:
(i) reporting or data preservation duties required under any federal or state law; or
(ii) implementing a policy of attempting to prevent the presence of child pornography
on any tangible or intangible property, or of detecting and reporting the presence of child
pornography on the property;
(b) a law enforcement officer acting within the scope of a criminal investigation;
(c) an employee of a court who may be required to view child pornography during the
course of and within the scope of the employee's employment;
(d) a juror who may be required to view child pornography during the course of the
individual's service as a juror;
(e) an attorney or employee of an attorney who is required to view child pornography
during the course of a judicial process and while acting within the scope of employment;
(f) an employee of the Department of Human Services who is required to view child
pornography within the scope of the employee's employment; or
(g) an attorney who is required to view child pornography within the scope of the
attorney's responsibility to represent the Department of Human Services, including the
divisions and offices within the Department of Human Services.