Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 147 Third Substitute (2021GS)

Sponsor

Rep. Hall, C.

Final action

Governor Signed 3/11/2021

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• provides that actual emotional distress or harm to the subject of a distributed intimate image is not an element of the offense in certain circumstances; and
• makes technical changes.

Every vote on this bill

Bill text

REVENGE PORN AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Craig Hall
Senate Sponsor: 
Todd D. Weiler
LONG TITLE
General Description:
This bill modifies the requirement of proving actual emotional distress or harm for the
offense of distribution of intimate images.
Highlighted Provisions:
This bill:
▸ provides that actual emotional distress or harm to the subject of a distributed
intimate image is not an element of the offense in certain circumstances; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-5b-203
, as last amended by Laws of Utah 2019, Chapter 378
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-5b-203
 is amended to read:
76-5b-203.
Distribution of an intimate image -- Penalty.
(1) As used in this section:
(a) "Distribute" means selling, exhibiting, displaying, wholesaling, retailing, providing,
giving, granting admission to, providing access to, or otherwise transferring or presenting an
image to another individual, with or without consideration.
(b) "Intimate image" means any visual depiction, photograph, film, video, recording,
picture, or computer or computer-generated image or picture, whether made or produced by
electronic, mechanical, or other means, that depicts:
(i) exposed human male or female genitals or pubic area, with less than an opaque
covering;
(ii) a female breast with less than an opaque covering, or any portion of the female
breast below the top of the areola; or
(iii) the individual engaged in any sexually explicit conduct.
(c) "Sexually explicit conduct" means actual or simulated:
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex;
(ii) masturbation;
(iii) bestiality;
(iv) sadistic or masochistic activities;
(v) exhibition of the genitals, pubic region, buttocks, or female breast of any
individual;
(vi) visual depiction of nudity or partial nudity;
(vii) fondling or touching of the genitals, pubic region, buttocks, or female breast; or
(viii) explicit representation of the defecation or urination functions.
(d) "Simulated sexually explicit conduct" means a feigned or pretended act of sexually
explicit conduct that duplicates, within the perception of an average person, the appearance of
an actual act of sexually explicit conduct.
(2) 
(a)
 An actor commits the offense of distribution of 
an
 intimate [
images
] 
image
 if
:
(i)
 the actor knowingly or intentionally distributes to [
any
] 
a
 third party [
any
] 
an
intimate image of an individual who is 18 years [
of age
] 
old
 or older and knows or should
know that the distribution would cause a reasonable person to suffer emotional distress or
harm[
, if:
]
;
[
(a)
] 
(ii)
 the actor knows that the [
depicted
] individual 
depicted in the image
 has not
given consent to the actor to distribute the intimate image;
[
(b)
] 
(iii)
 the intimate image was created by or provided to the actor under
circumstances in which the individual 
depicted in the image
 has a reasonable expectation of
privacy; and
[
(c)
] 
(iv) except as provided in Subsection (2)(b),
 actual emotional distress or harm is
caused to the [
person
] 
individual depicted in the image
 as a result of the distribution [
under this
section
].
(b) Subsection (2)(a)(iv) is not an element of the offense described in Subsection (2)(a)
if:
(i) the individual depicted in the intimate image was the victim of a crime;
(ii) the intimate image was provided to law enforcement as part of an investigation or
prosecution of a crime committed against the victim;
(iii) the intimate image was distributed without a legitimate law enforcement or
investigative purpose by an individual who had access to the intimate image due to the
individual's association with the investigation or prosecution described in Subsection (2)(b)(ii);
and
(iv) the victim is incapacitated or deceased.
(3) This section does not apply to:
(a) (i) lawful practices of law enforcement agencies;
(ii) prosecutorial agency functions;
(iii) the reporting of a criminal offense;
(iv) court proceedings or any other judicial proceeding; or
(v) lawful and generally accepted medical practices and procedures;
(b) an intimate image if the individual portrayed in the image voluntarily allows public
exposure of the image;
(c) an intimate image that is portrayed in a lawful commercial setting; or
(d) an intimate image that is related to a matter of public concern or interest.
(4) (a) This section does not apply to an Internet service provider or interactive
computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service,
information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a
commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined
in 47 U.S.C. Sec. 522, if:
(i) the distribution of an intimate image by the Internet service provider occurs only
incidentally through the provider's function of:
(A) transmitting or routing data from one person to another person; or
(B) providing a connection between one person and another person;
(ii) the provider does not intentionally aid or abet in the distribution of the intimate
image; and
(iii) the provider does not knowingly receive from or through a person who distributes
the intimate image a fee greater than the fee generally charged by the provider, as a specific
condition for permitting the person to distribute the intimate image.
(b) This section does not apply to a hosting company, as defined in Section
76-10-1230
, if:
(i) the distribution of an intimate image by the hosting company occurs only
incidentally through the hosting company's function of providing data storage space or data
caching to a person;
(ii) the hosting company does not intentionally engage, aid, or abet in the distribution
of the intimate image; and
(iii) the hosting company does not knowingly receive from or through a person who
distributes the intimate image a fee greater than the fee generally charged by the provider, as a
specific condition for permitting the person to distribute, store, or cache the intimate image.
(c) A service provider, as defined in Section 
76-10-1230
, is not negligent under this
section if it complies with Section 
76-10-1231
.
(5) (a) Distribution of an intimate image is a class A misdemeanor except under
Subsection (5)(b).
(b) Distribution of an intimate image is a third degree felony on a second or subsequent
conviction for an offense under this section that arises from a separate criminal episode as
defined in Section 
76-1-401
.