Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 193 First Substitute (2021GS)

Sponsor

Rep. Kwan, K.

Final action

Governor Signed 3/16/2021

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines terms;
• prohibits the distribution of a counterfeit intimate image;
• modifies the responsibility of a hosting company with regard to the removal of a counterfeit intimate image or an intimate image;
• modifies levels of offenses; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

INTIMATE IMAGE DISTRIBUTION PROHIBITION
AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Karen Kwan
Senate Sponsor: 
Todd D. Weiler
LONG TITLE
General Description:
This bill addresses the distribution of an intimate image or a counterfeit intimate image.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ prohibits the distribution of a counterfeit intimate image;
▸ modifies the responsibility of a hosting company with regard to the removal of a
counterfeit intimate image or an intimate image;
▸ modifies levels of offenses; and
▸ makes technical and conforming 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
76-5b-204
, as enacted by Laws of Utah 2017, Chapter 434
77-36-1
, as last amended by Laws of Utah 2020, Chapter 142
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 or counterfeit intimate image --
Penalty.
(1) As used in this section:
(a) "Counterfeit 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 has been edited, manipulated, or
altered to depict the likeness of an identifiable individual and purports to, or is made to appear
to, depict that individual's:
(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 or simulated sexually
explicit conduct.
[
(a)
] 
(b)
 "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)
] 
(c)
 "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)
] 
(d)
 "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)
] 
(e)
 "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) An actor commits the offense of distribution of [
intimate images
] 
an intimate image
if the actor knowingly [
or
]
,
 intentionally
, or recklessly
 distributes to any third party any
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) the actor knows that the depicted individual has not given consent to the actor to
distribute the intimate image;
(b) the intimate image was created by or provided to the actor under circumstances in
which the individual has a reasonable expectation of privacy; and
(c) actual emotional distress or harm is caused to the person as a result of the
distribution under this section.
(3) An actor commits the offense of distribution of a counterfeit intimate image if the
actor knowingly, intentionally, or recklessly distributes to any third party any counterfeit
intimate image that purports to depict an individual who is 18 years old or older and knows or
should know that the distribution would cause a reasonable person to suffer emotional or
physical distress or harm, if:
(a) the actor knows that the individual has not given consent to the actor to distribute
the counterfeit intimate image;
(b) the counterfeit intimate image was created or provided to the actor without the
knowledge or consent of the individual; and
(c) actual emotional or physical distress or harm is caused to the individual as a result
of the creation or distribution under this section.
[
(3)
] 
(4)
 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 
or a counterfeit intimate image
 if the individual portrayed in the
image voluntarily allows public exposure of the image;
(c) an intimate image 
or a counterfeit intimate image
 that is portrayed in a lawful
commercial setting; or
(d) an intimate image 
or a counterfeit intimate image
 that is related to a matter of
public concern or interest.
[
(4)
] 
(5)
 (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 
or a counterfeit 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 
or counterfeit intimate image
; and
(iii) the provider does not knowingly receive from or through a person who distributes
the intimate image 
or counterfeit 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
or counterfeit 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 
or counterfeit 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
] 
or counterfeit intimate image;
(iii) the hosting company does not knowingly receive from or through a person who
distributes the intimate image 
or counterfeit 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[
.
] 
or counterfeit intimate image; and
(iv) the hosting company immediately removes the intimate image or counterfeit
intimate image upon notice from a law enforcement agency, prosecutorial agency, or the
individual purportedly depicted in the intimate image or counterfeit 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
.
(6) (a) Reckless distribution of an intimate image or a counterfeit intimate image is a
class B misdemeanor.
[
(5) (a)
] 
(b)
 [
Distribution
] 
Except as provided in Subsection (6)(c), knowing or
intentional distribution
 of an intimate image 
or a counterfeit intimate image
 is a class A
misdemeanor [
except under Subsection (5)(b)
].
[
(b)
] 
(c)
 [
Distribution
] 
Knowing or intentional distribution
 of an intimate image 
or a
counterfeit 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
.
Section 2. Section 
76-5b-204
 is amended to read:
76-5b-204.
Sexual extortion -- Penalties.
(1) As used in this section:
(a) "Adult" means an individual 18 years [
of age
] 
old
 or older.
(b) "Child" means any individual under the age of 18.
(c) "Distribute" means the same as that term is defined in Section 
76-5b-203
.
(d) "Intimate image" means the same as that term is defined in Section 
76-5b-203
.
(e) "Position of special trust" means the same as that term is defined in Section
[
76-5-401.1
] 
76-5-404.1
.
(f) "Sexually explicit conduct" means the same as that term is defined in [
Subsection
76-5b-203
(1)(c)
] 
Section 
76-5b-203
.
(g) "Simulated sexually explicit conduct" means the same as that term is defined in
Section 
76-5b-203
.
(h) "Vulnerable adult" means the same as that term is defined in Section 
76-5-111
.
(2) An individual who is 18 years old or older commits the offense of sexual extortion
if the individual:
(a) with an intent to coerce a victim to engage in sexual contact, in sexually explicit
conduct, or in simulated sexually explicit conduct, or to produce, provide, or distribute an
image, video, or other recording of any individual naked or engaged in sexually explicit
conduct, communicates in person or by electronic means a threat:
(i) to the victim's person, property, or reputation; or
(ii) to distribute an intimate image or video of the victim; or
(b) knowingly causes a victim to engage in sexual contact, in sexually explicit conduct,
or in simulated sexually explicit conduct, or to produce, provide, or distribute any image,
video, or other recording of any individual naked or engaged in sexually explicit conduct by
means of a threat:
(i) to the victim's person, property, or reputation; or
(ii) to distribute an intimate image or video of the victim.
(3) (a) Sexual extortion is a third degree felony.
(b) Aggravated sexual extortion of an adult is a second degree felony.
(c) Aggravated sexual extortion of a child or a vulnerable adult is a first degree felony.
(4) An individual commits aggravated sexual extortion when, in conjunction with the
offense described in Subsection (2), any of the following circumstances have been charged and
admitted or found true in the action for the offense:
(a) the victim is a child or vulnerable adult;
(b) the offense was committed by the use of a dangerous weapon, as defined in Section
76-1-601
, or by violence, intimidation, menace, fraud, or threat of physical harm, or was
committed during the course of a kidnapping;
(c) the individual caused bodily injury or severe psychological injury to the victim
during or as a result of the offense;
(d) the individual was a stranger to the victim or became a friend of the victim for the
purpose of committing the offense;
(e) the individual, before sentencing for the offense, was previously convicted of any
sexual offense;
(f) the individual occupied a position of special trust in relation to the victim;
(g) the individual encouraged, aided, allowed, or benefitted from acts of prostitution or
sexual acts by the victim with any other individual, or sexual performance by the victim before
any other individual, human trafficking, or human smuggling; or
(h) the individual caused the penetration, however slight, of the genital or anal opening
of the victim by any part or parts of the human body, or by any other object.
(5) An individual commits a separate offense under this section:
(a) for each victim the individual subjects to the offense outlined in Subsection (2); and
(b) for each separate time the individual subjects a victim to the offense outlined
Subsection (2).
(6) This section does not preclude an individual from being charged and convicted of a
separate criminal act if the individual commits the separate criminal act while the individual
violates or attempts to violate this section.
(7) An interactive computer service, as defined in 47 U.S.C. Sec. 230, is not subject to
liability under this section related to content provided by a user of the interactive computer
service.
Section 3. Section 
77-36-1
 is amended to read:
77-36-1.
Definitions.
As used in this chapter:
(1) "Cohabitant" means the same as that term is defined in Section 
78B-7-102
.
(2) "Department" means the Department of Public Safety.
(3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
3, Divorce.
(4) "Domestic violence" or "domestic violence offense" means any criminal offense
involving violence or physical harm or threat of violence or physical harm, or any attempt,
conspiracy, or solicitation to commit a criminal offense involving violence or physical harm,
when committed by one cohabitant against another. "Domestic violence" or "domestic
violence offense" includes commission or attempt to commit, any of the following offenses by
one cohabitant against another:
(a) aggravated assault, as described in Section 
76-5-103
;
(b) aggravated cruelty to an animal, as described in Subsection 
76-9-301
(4), with the
intent to harass or threaten the other cohabitant;
(c) assault, as described in Section 
76-5-102
;
(d) criminal homicide, as described in Section 
76-5-201
;
(e) harassment, as described in Section 
76-5-106
;
(f) electronic communication harassment, as described in Section 
76-9-201
;
(g) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
76-5-301
, 
76-5-301.1
, and 
76-5-302
;
(h) mayhem, as described in Section 
76-5-105
;
(i) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
Section 
76-5b-201
, Sexual exploitation of a minor -- Offenses;
(j) stalking, as described in Section 
76-5-106.5
;
(k) unlawful detention or unlawful detention of a minor, as described in Section
76-5-304
;
(l) violation of a protective order or ex parte protective order, as described in Section
76-5-108
;
(m) any offense against property described in Title 76, Chapter 6, Part 1, Property
Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6,
Part 3, Robbery;
(n) possession of a deadly weapon with criminal intent, as described in Section
76-10-507
;
(o) discharge of a firearm from a vehicle, near a highway, or in the direction of any
person, building, or vehicle, as described in Section 
76-10-508
;
(p) disorderly conduct, as defined in Section 
76-9-102
, if a conviction of disorderly
conduct is the result of a plea agreement in which the defendant was originally charged with a
domestic violence offense otherwise described in this Subsection (4), except that a conviction
of disorderly conduct as a domestic violence offense, in the manner described in this
Subsection (4)(p), does not constitute a misdemeanor crime of domestic violence under 18
U.S.C. Sec. 921, and is exempt from the federal Firearms Act, 18 U.S.C. Sec. 921 et seq.;
(q) child abuse, as described in Section 
76-5-109.1
;
(r) threatening use of a dangerous weapon, as described in Section 
76-10-506
;
(s) threatening violence, as described in Section 
76-5-107
;
(t) tampering with a witness, as described in Section 
76-8-508
;
(u) retaliation against a witness or victim, as described in Section 
76-8-508.3
;
(v) unlawful distribution of an intimate image 
or counterfeit intimate image
, as
described in Section 
76-5b-203
;
(w) sexual battery, as described in Section 
76-9-702.1
;
(x) voyeurism, as described in Section 
76-9-702.7
;
(y) damage to or interruption of a communication device, as described in Section
76-6-108
; or
(z) an offense described in Subsection 
78B-7-806
(1).
(5) "Jail release agreement" means the same as that term is defined in Section
78B-7-801
.
(6) "Jail release court order" means the same as that term is defined in Section
78B-7-801
.
(7) "Marital status" means married and living together, divorced, separated, or not
married.
(8) "Married and living together" means a couple whose marriage was solemnized
under Section 
30-1-4
 or 
30-1-6
 and who are living in the same residence.
(9) "Not married" means any living arrangement other than married and living together,
divorced, or separated.
(10) "Protective order" includes an order issued under Subsection 
78B-7-804
(3).
(11) "Pretrial protective order" means a written order:
(a) specifying and limiting the contact a person who has been charged with a domestic
violence offense may have with an alleged victim or other specified individuals; and
(b) specifying other conditions of release under Sections 
78B-7-802
 or 
78B-7-803
,
pending trial in the criminal case.
(12) "Sentencing protective order" means a written order of the court as part of
sentencing in a domestic violence case that limits the contact a person who has been convicted
of a domestic violence offense may have with a victim or other specified individuals under
Section 
78B-7-804
.
(13) "Separated" means a couple who have had their marriage solemnized under
Section 
30-1-4
 or 
30-1-6
 and who are not living in the same residence.
(14) "Victim" means a cohabitant who has been subjected to domestic violence.