Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 57 Second Substitute (2023GS)

Sponsor

Sen. Wilson, C.

Final action

Governor Signed 3/14/2023

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• changes the term "child pornography" to "child sexual abuse material" in the Utah Code;
• changes the term "vulnerable adult pornography" to "vulnerable adult sexual abuse material" in the Utah Code;
• prohibits the reproduction of child sexual abuse material evidence;
• allows a defendant's attorney or a defendant's expert to inspect child sexual abuse material evidence at a government facility before trial;
• allows a victim, the victim's attorney, or the victim's expert to inspect child sexual abuse material evidence at a government facility before trial upon a showing of good cause; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

SEXUAL ABUSE MATERIAL AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Chris H. Wilson
House Sponsor: 
Paul A. Cutler
LONG TITLE
General Description:
This bill addresses the reproduction and possession of sexual abuse material.
Highlighted Provisions:
This bill:
▸ changes the term "child pornography" to "child sexual abuse material" in the Utah
Code;
▸ changes the term "vulnerable adult pornography" to "vulnerable adult sexual abuse
material" in the Utah Code;
▸ prohibits the reproduction of child sexual abuse material evidence;
▸ allows a defendant's attorney or a defendant's expert to inspect child sexual abuse
material evidence at a government facility before trial;
▸ allows a victim, the victim's attorney, or the victim's expert to inspect child sexual
abuse material evidence at a government facility before trial upon a showing of
good cause; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
9-7-215
, as last amended by Laws of Utah 2017, Chapter 208
24-1-102
, as last amended by Laws of Utah 2022, Chapter 179
62A-1-122
, as last amended by Laws of Utah 2021, Chapter 344
63G-2-103
, as last amended by Laws of Utah 2021, Chapters 211, 283
67-5-21
, as enacted by Laws of Utah 2006, Chapter 350
76-5b-103
, as last amended by Laws of Utah 2022, Chapter 181
76-5b-201
, as last amended by Laws of Utah 2022, Chapters 181, 185
76-5b-201.1
, as enacted by Laws of Utah 2022, Chapter 185 and last amended by
Coordination Clause, Laws of Utah 2022, Chapter 185
76-5b-202
, as last amended by Laws of Utah 2022, Chapter 181
76-10-1204.5
, as enacted by Laws of Utah 2016, Chapter 313
ENACTS:
77-4-201
, Utah Code Annotated 1953
RENUMBERS AND AMENDS:
77-4-101
, (Renumbered from 77-4-1, as enacted by Laws of Utah 1980, Chapter 15)
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
9-7-215
 is amended to read:
9-7-215.
Internet and online access policy required.
(1) As used in this section:
(a) [
"Child pornography" is as
] 
"Child sexual abuse material" means the same as that
term is
 defined in Section 
76-5b-103
.
(b) "Harmful to minors" [
is as
] 
means the same as that term is
 defined in Section
76-10-1201
.
(c) "Obscene" [
is as
] 
means the same as that term is
 defined in 20 U.S.C. Sec. 9101.
(d) "Technology protection measure" means a technology that blocks or filters Internet
access to visual depictions.
(2) State funds may not be provided to any public library that provides public access to
the Internet unless the library:
(a) (i) has in place a policy of Internet safety for minors, including the operation of a
technology protection measure:
(A) with respect to any computer or other device while connected to the Internet
through a network provided by the library, including a wireless network; and
(B) that protects against access to visual depictions that are:
(I) child [
pornography
] 
sexual abuse material
;
(II) harmful to minors; or
(III) obscene; and
(ii) is enforcing the operation of the technology protection measure described in
Subsection (2)(a)(i) during any use by a minor of a computer or other device that is connected
to the Internet through a network provided by the library, including a wireless network; and
(b) (i) has in place a policy of Internet safety, including the operation of a technology
protection measure:
(A) with respect to any computer or other device while connected to the Internet
through a network provided by the library, including a wireless network; and
(B) that protects against access to visual depictions that are:
(I) child [
pornography
] 
sexual abuse material
; or
(II) obscene; and
(ii) is enforcing the operation of the technology protection measure described in
Subsection (2)(b)(i) during any use of a computer or other device that is connected to the
Internet through a network provided by the library, including a wireless network.
(3) This section does not prohibit a public library from limiting Internet access or
otherwise protecting against materials other than the materials specified in this section.
(4) An administrator, supervisor, or other representative of a public library may disable
a technology protection measure described in Subsection (2):
(a) at the request of a library patron who is not a minor; and
(b) to enable access for research or other lawful purposes.
Section 2. Section 
24-1-102
 is amended to read:
24-1-102.
Definitions.
As used in this title:
(1) "Account" means the Criminal Forfeiture Restricted Account created in Section
24-4-116
.
(2) (a) "Acquitted" means a finding by a jury or a judge at trial that a claimant is not
guilty.
(b) "Acquitted" does not include:
(i) a verdict of guilty on a lesser or reduced charge;
(ii) a plea of guilty to a lesser or reduced charge; or
(iii) dismissal of a charge as a result of a negotiated plea agreement.
(3) (a) "Agency" means an agency of this state or a political subdivision of this state.
(b) "Agency" includes a law enforcement agency or a multijurisdictional task force.
(4) "Claimant" means:
(a) an owner of property as defined in this section;
(b) an interest holder as defined in this section; or
(c) an individual or entity who asserts a claim to any property seized for forfeiture
under this title.
(5) "Commission" means the State Commission on Criminal and Juvenile Justice
created in Section 
63M-7-201
.
(6) "Complaint" means a civil or criminal complaint seeking the forfeiture of any real
or personal property under this title.
(7) (a) "Computer" means an electronic, magnetic, optical, electrochemical, or other
high-speed data processing device that performs logical, arithmetic, and storage functions.
(b) "Computer" includes any device that is used for the storage of digital or electronic
files, flash memory, software, or other electronic information.
(c) "Computer" does not mean a computer server of an Internet or electronic service
provider, or the service provider's employee, if used to comply with the requirements under 18
U.S.C. Sec. 2258A.
(8) "Constructive seizure" means a seizure of property where the property is left in the
control of the owner and an agency posts the property with a notice of intent to seek forfeiture.
(9) (a) "Contraband" means any property, item, or substance that is unlawful to
produce or to possess under state or federal law.
(b) "Contraband" includes:
(i) a controlled substance that is possessed, transferred, distributed, or offered for
distribution in violation of Title 58, Chapter 37, Utah Controlled Substances Act; or
(ii) a computer that:
(A) contains or houses child [
pornography
] 
sexual abuse material
, or is used to create,
download, transfer, upload to a storage account, or store any electronic or digital files
containing child [
pornography
] 
sexual abuse material
; or
(B) contains the personal identifying information of another individual, as defined in
Subsection 
76-6-1102
(1), whether that individual is alive or deceased, and the personal
identifying information has been used to create false or fraudulent identification documents or
financial transaction cards in violation of Title 76, Chapter 6, Part 5, Fraud.
(10) "Forfeit" means to divest a claimant of an ownership interest in property seized
under this title.
(11) "Innocent owner" means a claimant who:
(a) held an ownership interest in property at the time of the commission of an offense
subjecting the property to forfeiture under this title, and:
(i) did not have actual knowledge of the offense subjecting the property to forfeiture; or
(ii) upon learning of the commission of the offense, took reasonable steps to prohibit
the use of the property in the commission of the offense; or
(b) acquired an ownership interest in the property and had no knowledge that the
commission of the offense subjecting the property to forfeiture under this title had occurred or
that the property had been seized for forfeiture, and:
(i) acquired the property in a bona fide transaction for value;
(ii) was an individual, including a minor child, who acquired an interest in the property
through probate or inheritance; or
(iii) was a spouse who acquired an interest in property through dissolution of marriage
or by operation of law.
(12) (a) "Interest holder" means a secured party as defined in Section 
70A-9a-102
, a
party with a right-of-offset, a mortgagee, lien creditor, or the beneficiary of a security interest
or encumbrance pertaining to an interest in property, whose interest would be perfected against
a good faith purchaser for value.
(b) "Interest holder" does not mean a person:
(i) who holds property for the benefit of or as an agent or nominee for another person;
or
(ii) who is not in substantial compliance with any statute requiring an interest in
property to be:
(A) recorded or reflected in public records in order to perfect the interest against a good
faith purchaser for value; or
(B) held in control by a secured party, as defined in Section 
70A-9a-102
, in accordance
with Section 
70A-9a-314
 in order to perfect the interest against a good faith purchaser for
value.
(13) "Known address" means any address provided by a claimant to the peace officer
or agency at the time the property is seized, or the claimant's most recent address on record
with a governmental entity if no address was provided at the time of the seizure.
(14) "Legal costs" means the costs and expenses incurred by a party in a forfeiture
action.
(15) "Legislative body" means:
(a) (i) the Legislature, county commission, county council, city commission, city
council, or town council that has fiscal oversight and budgetary approval authority over an
agency; or
(ii) the agency's governing political subdivision; or
(b) the lead governmental entity of a multijurisdictional task force, as designated in a
memorandum of understanding executed by the agencies participating in the task force.
(16) "Multijurisdictional task force" means a law enforcement task force or other
agency comprised of individuals who are employed by or acting under the authority of different
governmental entities, including federal, state, county, or municipal governments, or any
combination of federal, state, county, or municipal agencies.
(17) "Owner" means an individual or entity, other than an interest holder, that
possesses a bona fide legal or equitable interest in real or personal property.
(18) "Peace officer" means an employee:
(a) of an agency;
(b) whose duties consist primarily of the prevention and detection of violations of laws
of this state or a political subdivision of this state; and
(c) who is authorized by the agency to seize property under this title.
(19) (a) "Proceeds" means:
(i) property of any kind that is obtained directly or indirectly as a result of the
commission of an offense; or
(ii) any property acquired directly or indirectly from, produced through, realized
through, or caused by an act or omission regarding property under Subsection (19)(a)(i).
(b) "Proceeds" includes any property of any kind without reduction for expenses
incurred in the acquisition, maintenance, or production of that property, or any other purpose
regarding property under Subsection (19)(a)(i).
(c) "Proceeds" is not limited to the net gain or profit realized from the offense that
subjects the property to forfeiture.
(20) "Program" means the State Asset Forfeiture Grant Program created in Section
24-4-117
.
(21) (a) "Property" means all property, whether real or personal, tangible or intangible.
(b) "Property" does not include contraband.
(22) "Prosecuting attorney" means:
(a) the attorney general and an assistant attorney general;
(b) a district attorney or deputy district attorney;
(c) a county attorney or assistant county attorney; and
(d) an attorney authorized to commence an action on behalf of the state under this title.
(23) "Public interest use" means a:
(a) use by a government agency as determined by the legislative body of the agency's
jurisdiction; or
(b) donation of the property to a nonprofit charity registered with the state.
(24) "Real property" means land, including any building, fixture, improvement,
appurtenance, structure, or other development that is affixed permanently to land.
Section 3. Section 
62A-1-122
 is amended to read:
62A-1-122.
Child sexual abuse material.
(1) As used in this section:
(a) [
"Child pornography"
] 
"Child sexual abuse material"
 means the same as that term is
defined in Section 
76-5b-103
.
(b) "Secure" means to prevent and prohibit access, electronic upload, transmission, or
transfer of an image.
(2) The department or a division within the department may not retain child
[
pornography
] 
sexual abuse material
 longer than is necessary to comply with the requirements
of this section.
(3) When the department or a division within the department obtains child
[
pornography
] 
sexual abuse material
 as a result of an employee unlawfully viewing child
[
pornography
] 
sexual abuse material
, the department or division shall consult with and follow
the guidance of the Division of Human Resource Management regarding personnel action and
local law enforcement regarding retention of the child [
pornography
] 
sexual abuse material
.
(4) When the department or a division within the department obtains child
[
pornography
] 
sexual abuse material
 as a result of a report or an investigation, the department
or division shall immediately secure the child [
pornography
] 
sexual abuse material
, or the
electronic device if the child [
pornography
] 
sexual abuse material
 is digital, and contact the law
enforcement office that has jurisdiction over the area where the division's case is located.
Section 4. Section 
63G-2-103
 is amended to read:
63G-2-103.
Definitions.
As used in this chapter:
(1) "Audit" means:
(a) a systematic examination of financial, management, program, and related records
for the purpose of determining the fair presentation of financial statements, adequacy of
internal controls, or compliance with laws and regulations; or
(b) a systematic examination of program procedures and operations for the purpose of
determining their effectiveness, economy, efficiency, and compliance with statutes and
regulations.
(2) "Chronological logs" mean the regular and customary summary records of law
enforcement agencies and other public safety agencies that show:
(a) the time and general nature of police, fire, and paramedic calls made to the agency;
and
(b) any arrests or jail bookings made by the agency.
(3) "Classification," "classify," and their derivative forms mean determining whether a
record series, record, or information within a record is public, private, controlled, protected, or
exempt from disclosure under Subsection 
63G-2-201
(3)(b).
(4) (a) "Computer program" means:
(i) a series of instructions or statements that permit the functioning of a computer
system in a manner designed to provide storage, retrieval, and manipulation of data from the
computer system; and
(ii) any associated documentation and source material that explain how to operate the
computer program.
(b) "Computer program" does not mean:
(i) the original data, including numbers, text, voice, graphics, and images;
(ii) analysis, compilation, and other manipulated forms of the original data produced by
use of the program; or
(iii) the mathematical or statistical formulas, excluding the underlying mathematical
algorithms contained in the program, that would be used if the manipulated forms of the
original data were to be produced manually.
(5) (a) "Contractor" means:
(i) any person who contracts with a governmental entity to provide goods or services
directly to a governmental entity; or
(ii) any private, nonprofit organization that receives funds from a governmental entity.
(b) "Contractor" does not mean a private provider.
(6) "Controlled record" means a record containing data on individuals that is controlled
as provided by Section 
63G-2-304
.
(7) "Designation," "designate," and their derivative forms mean indicating, based on a
governmental entity's familiarity with a record series or based on a governmental entity's
review of a reasonable sample of a record series, the primary classification that a majority of
records in a record series would be given if classified and the classification that other records
typically present in the record series would be given if classified.
(8) "Elected official" means each person elected to a state office, county office,
municipal office, school board or school district office, local district office, or special service
district office, but does not include judges.
(9) "Explosive" means a chemical compound, device, or mixture:
(a) commonly used or intended for the purpose of producing an explosion; and
(b) that contains oxidizing or combustive units or other ingredients in proportions,
quantities, or packing so that:
(i) an ignition by fire, friction, concussion, percussion, or detonator of any part of the
compound or mixture may cause a sudden generation of highly heated gases; and
(ii) the resultant gaseous pressures are capable of:
(A) producing destructive effects on contiguous objects; or
(B) causing death or serious bodily injury.
(10) "Government audit agency" means any governmental entity that conducts an audit.
(11) (a) "Governmental entity" means:
(i) executive department agencies of the state, the offices of the governor, lieutenant
governor, state auditor, attorney general, and state treasurer, the Board of Pardons and Parole,
the Board of Examiners, the National Guard, the Career Service Review Office, the State
Board of Education, the Utah Board of Higher Education, and the State Archives;
(ii) the Office of the Legislative Auditor General, Office of the Legislative Fiscal
Analyst, Office of Legislative Research and General Counsel, the Legislature, and legislative
committees, except any political party, group, caucus, or rules or sifting committee of the
Legislature;
(iii) courts, the Judicial Council, the Administrative Office of the Courts, and similar
administrative units in the judicial branch;
(iv) any state-funded institution of higher education or public education; or
(v) any political subdivision of the state, but, if a political subdivision has adopted an
ordinance or a policy relating to information practices pursuant to Section 
63G-2-701
, this
chapter shall apply to the political subdivision to the extent specified in Section 
63G-2-701
 or
as specified in any other section of this chapter that specifically refers to political subdivisions.
(b) "Governmental entity" also means:
(i) every office, agency, board, bureau, committee, department, advisory board, or
commission of an entity listed in Subsection (11)(a) that is funded or established by the
government to carry out the public's business;
(ii) as defined in Section 
11-13-103
, an interlocal entity or joint or cooperative
undertaking;
(iii) as defined in Section 
11-13a-102
, a governmental nonprofit corporation;
(iv) an association as defined in Section 
53G-7-1101
;
(v) the Utah Independent Redistricting Commission; and
(vi) a law enforcement agency, as defined in Section 
53-1-102
, that employs one or
more law enforcement officers, as defined in Section 
53-13-103
.
(c) "Governmental entity" does not include the Utah Educational Savings Plan created
in Section 
53B-8a-103
.
(12) "Gross compensation" means every form of remuneration payable for a given
period to an individual for services provided including salaries, commissions, vacation pay,
severance pay, bonuses, and any board, rent, housing, lodging, payments in kind, and any
similar benefit received from the individual's employer.
(13) "Individual" means a human being.
(14) (a) "Initial contact report" means an initial written or recorded report, however
titled, prepared by peace officers engaged in public patrol or response duties describing official
actions initially taken in response to either a public complaint about or the discovery of an
apparent violation of law, which report may describe:
(i) the date, time, location, and nature of the complaint, the incident, or offense;
(ii) names of victims;
(iii) the nature or general scope of the agency's initial actions taken in response to the
incident;
(iv) the general nature of any injuries or estimate of damages sustained in the incident;
(v) the name, address, and other identifying information about any person arrested or
charged in connection with the incident; or
(vi) the identity of the public safety personnel, except undercover personnel, or
prosecuting attorney involved in responding to the initial incident.
(b) Initial contact reports do not include follow-up or investigative reports prepared
after the initial contact report. However, if the information specified in Subsection (14)(a)
appears in follow-up or investigative reports, it may only be treated confidentially if it is
private, controlled, protected, or exempt from disclosure under Subsection 
63G-2-201
(3)(b).
(c) Initial contact reports do not include accident reports, as that term is described in
Title 41, Chapter 6a, Part 4, Accident Responsibilities.
(15) "Legislative body" means the Legislature.
(16) "Notice of compliance" means a statement confirming that a governmental entity
has complied with an order of the State Records Committee.
(17) "Person" means:
(a) an individual;
(b) a nonprofit or profit corporation;
(c) a partnership;
(d) a sole proprietorship;
(e) other type of business organization; or
(f) any combination acting in concert with one another.
(18) "Private provider" means any person who contracts with a governmental entity to
provide services directly to the public.
(19) "Private record" means a record containing data on individuals that is private as
provided by Section 
63G-2-302
.
(20) "Protected record" means a record that is classified protected as provided by
Section 
63G-2-305
.
(21) "Public record" means a record that is not private, controlled, or protected and that
is not exempt from disclosure as provided in Subsection 
63G-2-201
(3)(b).
(22) (a) "Record" means a book, letter, document, paper, map, plan, photograph, film,
card, tape, recording, electronic data, or other documentary material regardless of physical form
or characteristics:
(i) that is prepared, owned, received, or retained by a governmental entity or political
subdivision; and
(ii) where all of the information in the original is reproducible by photocopy or other
mechanical or electronic means.
(b) "Record" does not mean:
(i) a personal note or personal communication prepared or received by an employee or
officer of a governmental entity:
(A) in a capacity other than the employee's or officer's governmental capacity; or
(B) that is unrelated to the conduct of the public's business;
(ii) a temporary draft or similar material prepared for the originator's personal use or
prepared by the originator for the personal use of an individual for whom the originator is
working;
(iii) material that is legally owned by an individual in the individual's private capacity;
(iv) material to which access is limited by the laws of copyright or patent unless the
copyright or patent is owned by a governmental entity or political subdivision;
(v) proprietary software;
(vi) junk mail or a commercial publication received by a governmental entity or an
official or employee of a governmental entity;
(vii) a book that is cataloged, indexed, or inventoried and contained in the collections
of a library open to the public;
(viii) material that is cataloged, indexed, or inventoried and contained in the collections
of a library open to the public, regardless of physical form or characteristics of the material;
(ix) a daily calendar or other personal note prepared by the originator for the
originator's personal use or for the personal use of an individual for whom the originator is
working;
(x) a computer program that is developed or purchased by or for any governmental
entity for its own use;
(xi) a note or internal memorandum prepared as part of the deliberative process by:
(A) a member of the judiciary;
(B) an administrative law judge;
(C) a member of the Board of Pardons and Parole; or
(D) a member of any other body, other than an association or appeals panel as defined
in Section 
53G-7-1101
, charged by law with performing a quasi-judicial function;
(xii) a telephone number or similar code used to access a mobile communication
device that is used by an employee or officer of a governmental entity, provided that the
employee or officer of the governmental entity has designated at least one business telephone
number that is a public record as provided in Section 
63G-2-301
;
(xiii) information provided by the Public Employees' Benefit and Insurance Program,
created in Section 
49-20-103
, to a county to enable the county to calculate the amount to be
paid to a health care provider under Subsection 
17-50-319
(2)(e)(ii);
(xiv) information that an owner of unimproved property provides to a local entity as
provided in Section 
11-42-205
;
(xv) a video or audio recording of an interview, or a transcript of the video or audio
recording, that is conducted at a Children's Justice Center established under Section 
67-5b-102
;
(xvi) child [
pornography
] 
sexual abuse material
, as defined by Section 
76-5b-103
;
(xvii) before final disposition of an ethics complaint occurs, a video or audio recording
of the closed portion of a meeting or hearing of:
(A) a Senate or House Ethics Committee;
(B) the Independent Legislative Ethics Commission;
(C) the Independent Executive Branch Ethics Commission, created in Section
63A-14-202
; or
(D) the Political Subdivisions Ethics Review Commission established in Section
63A-15-201
; or
(xviii) confidential communication described in Section 
58-60-102
, 
58-61-102
, or
58-61-702
.
(23) "Record series" means a group of records that may be treated as a unit for
purposes of designation, description, management, or disposition.
(24) "Records officer" means the individual appointed by the chief administrative
officer of each governmental entity, or the political subdivision to work with state archives in
the care, maintenance, scheduling, designation, classification, disposal, and preservation of
records.
(25) "Schedule," "scheduling," and their derivative forms mean the process of
specifying the length of time each record series should be retained by a governmental entity for
administrative, legal, fiscal, or historical purposes and when each record series should be
transferred to the state archives or destroyed.
(26) "Sponsored research" means research, training, and other sponsored activities as
defined by the federal Executive Office of the President, Office of Management and Budget:
(a) conducted:
(i) by an institution within the state system of higher education defined in Section
53B-1-102
; and
(ii) through an office responsible for sponsored projects or programs; and
(b) funded or otherwise supported by an external:
(i) person that is not created or controlled by the institution within the state system of
higher education; or
(ii) federal, state, or local governmental entity.
(27) "State archives" means the Division of Archives and Records Service created in
Section 
63A-12-101
.
(28) "State archivist" means the director of the state archives.
(29) "State Records Committee" means the State Records Committee created in
Section 
63G-2-501
.
(30) "Summary data" means statistical records and compilations that contain data
derived from private, controlled, or protected information but that do not disclose private,
controlled, or protected information.
Section 5. Section 
67-5-21
 is amended to read:
67-5-21.
Internet Crimes Against Children (ICAC) unit creation -- Duties --
Employment of staff.
(1) There is created within the Office of the Attorney General the Internet Crimes
Against Children (ICAC) unit to investigate and prosecute cases involving child [
pornography
]
sexual abuse material
 and cases involving enticing minors over the Internet into illegal sexual
acts.
(2) The attorney general may employ investigators, prosecutors, and necessary support
staff for the unit created under Subsection (1).
Section 6. Section 
76-5b-103
 is amended to read:
76-5b-103.
Definitions.
As used in this chapter:
(1) [
"Child pornography"
] 
"Child sexual abuse material"
 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
] 
sexual abuse material
 or vulnerable adult [
pornography
] 
sexual abuse material
with or without consideration.
(3) "Identifiable minor" means a person:
(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 by the person's face, likeness, or other
distinguishing characteristic, such as a birthmark, or other recognizable feature.
(4) "Identifiable vulnerable adult" means a person:
(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 by the person's face, likeness, or other
distinguishing characteristic, such as a birthmark, or other recognizable feature.
(5) "Lacks capacity to consent" is as defined in Section 
76-5-111.4
.
(6) "Live performance" means any act, play, dance, pantomime, song, or other activity
performed by live actors in person.
(7) "Minor" means a person younger than 18 years old.
(8) "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) "Produce" means:
(a) the photographing, filming, taping, directing, producing, creating, designing, or
composing of child [
pornography
] 
sexual abuse material
 or vulnerable adult [
pornography
]
sexual abuse material
; or
(b) the securing or hiring of persons to engage in the photographing, filming, taping,
directing, producing, creating, designing, or composing of child [
pornography
] 
sexual abuse
material
 or vulnerable adult [
pornography
] 
sexual abuse material
.
(10) "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) "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) "Vulnerable adult" is as defined in Subsection 
76-5-111
(1).
(13) "Vulnerable adult [
pornography
] 
sexual abuse material
" 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 7. Section 
76-5b-201
 is amended to read:
76-5b-201.
Sexual exploitation of a minor -- Offenses.
(1) Terms defined in Section 
76-1-101.5
 apply to this section.
(2) An actor commits sexual exploitation of a minor when the actor knowingly
possesses or intentionally views child [
pornography
] 
sexual abuse material
.
(3) (a) A violation of Subsection (2) is a second degree felony.
(b) It is a separate offense under this section:
(i) for each minor depicted in the child [
pornography
] 
sexual abuse material
; and
(ii) for each time the same minor is depicted in different child [
pornography
] 
sexual
abuse material
.
(4) (a) It is an affirmative defense to a charge of violating this section that no minor
was actually depicted in the visual depiction or used in producing or advertising the visual
depiction.
(b) For a charge of violating this section, it is an affirmative defense that:
(i) the defendant:
(A) did not solicit the child [
pornography
] 
sexual abuse material
 from the minor
depicted in the child [
pornography
] 
sexual abuse material
;
(B) is not more than two years older than the minor depicted in the child [
pornography
]
sexual abuse material
; and
(C) upon request of a law enforcement agent or the minor depicted in the child
[
pornography
] 
sexual abuse material
, removes from an electronic device or destroys the child
[
pornography
] 
sexual abuse material
 and all copies of the child [
pornography
] 
sexual abuse
material
 in the defendant's possession; and
(ii) the child [
pornography
] 
sexual abuse material
 does not depict an offense under
Chapter 5, Part 4, Sexual Offenses.
(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
] 
The
following are not criminally or civilly liable under this section when acting in good faith
compliance with Section 
77-4-201
:
(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 federal or state law; or
(ii) implementing a policy of attempting to prevent the presence of child [
pornography
]
sexual abuse material
 on tangible or intangible property, or of detecting and reporting the
presence of child [
pornography
] 
sexual abuse material
 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
] 
sexual
abuse material
 during the course of and within the scope of the employee's employment;
(d) a juror who may be required to view child [
pornography
] 
sexual abuse material
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
]
sexual abuse material
 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
] 
sexual abuse material
 within the scope of the employee's employment; or
(g) an attorney who is required to view child [
pornography
] 
sexual abuse material
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.
Section 8. Section 
76-5b-201.1
 is amended to read:
76-5b-201.1.
Aggravated sexual exploitation of a minor.
(1) As used in this section:
(a) "Physical abuse" or "physically abused" means the same as the term "physical
abuse" is defined in Section 
80-1-102
.
(b) The terms defined in Section 
76-1-101.5
 apply to this section.
(2) An actor commits aggravated sexual exploitation of a minor if the actor:
(a) intentionally distributes child [
pornography
] 
sexual abuse material
;
(b) knowingly produces child [
pornography
] 
sexual abuse material
; or
(c) is the minor's parent or legal guardian and knowingly consents to or permits the
minor to be sexually exploited as described in Subsection (2)(a) or (b) or Section 
76-5b-201
.
(3) (a) Except as provided in Subsection (3)(b) or (c), a violation of Subsection (2) is a
first degree felony.
(b) If an actor is under 18 years old at the time of the offense, a violation of Subsection
(2) is a second degree felony.
(c) A violation of Subsection (2)(a) is a second degree felony if the child [
pornography
]
sexual abuse material
 depicts an individual who is:
(i) 14 years old or older; or
(ii) pubescent.
(4) It is a separate offense under this section:
(a) for each minor depicted in the child [
pornography
] 
sexual abuse material
; and
(b) for each time the same minor is depicted in different child [
pornography
] 
sexual
abuse material
.
(5) (a) It is an affirmative defense to a charge of violating this section that no minor
was actually depicted in the visual depiction or used in producing or advertising the visual
depiction.
(b) 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
] 
The
following are not criminally or civilly liable under this section when acting in good faith
compliance with Section 
77-4-201
:
(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 federal or state law; or
(ii) implementing a policy of attempting to prevent the presence of child [
pornography
]
sexual abuse material
 on tangible or intangible property, or of detecting and reporting the
presence of child [
pornography
] 
sexual abuse material
 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
] 
sexual
abuse material
 during the course of and within the scope of the employee's employment;
(d) a juror who may be required to view child [
pornography
] 
sexual abuse material
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
]
sexual abuse material
 during the course of a judicial process and while acting within the scope
of employment;
(f) an employee of the Department of Health and Human Services who is required to
view child [
pornography
] 
sexual abuse material
 within the scope of the employee's
employment; or
(g) an attorney who is required to view child [
pornography
] 
sexual abuse material
within the scope of the attorney's responsibility to represent the Department of Health and
Human Services, including the divisions and offices within the Department of Health and
Human Services.
Section 9. Section 
76-5b-202
 is amended to read:
76-5b-202.
Sexual exploitation of a vulnerable adult -- Offenses.
(1) Terms defined in Section 
76-1-101.5
 apply to this section.
(2) An actor commits sexual exploitation of a vulnerable adult if the actor:
(a) (i) (A) knowingly produces, possesses, or possesses with intent to distribute
material that the actor knows is vulnerable adult [
pornography
] 
sexual abuse material
; or
(B) intentionally distributes or views material that the actor knows is vulnerable adult
[
pornography
] 
sexual abuse material
; and
(ii) the vulnerable adult who appears in, or is depicted in, the vulnerable adult
[
pornography
] 
sexual abuse material
 lacks capacity to consent to the conduct described in
Subsection (2)(a); or
(b) is a vulnerable adult's legal guardian and knowingly consents to, or permits the
vulnerable adult to be, sexually exploited as described in Subsection (2)(a).
(3) (a) A violation of Subsection (2) is a third degree felony.
(b) It is a separate offense under this section:
(i) for each vulnerable adult depicted in the vulnerable adult [
pornography
] 
sexual
abuse material
; and
(ii) for each time the same vulnerable adult is depicted in different vulnerable adult
[
pornography
] 
sexual abuse material
.
(4) It is an affirmative defense to a charge of violating this section that no vulnerable
adult 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 vulnerable adult,
proof of the actual identity of the identifiable vulnerable adult is not required.
(6) This section may not be construed to impose criminal or civil liability on:
(a) any 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 vulnerable adult
[
pornography
] 
sexual abuse material
 on any tangible or intangible property, or of detecting and
reporting the presence of vulnerable adult [
pornography
] 
sexual abuse material
 on the property;
or
(b) any law enforcement officer acting within the scope of a criminal investigation.
Section 10. Section 
76-10-1204.5
 is amended to read:
76-10-1204.5.
Reporting of child sexual abuse material by a computer technician.
(1) As used in this section:
(a) [
"Child pornography"
] 
"Child sexual abuse material"
 means the same as that term
is defined in Section 
76-5b-103
.
(b) "Computer technician" or "technician" means an individual who in the course and
scope of the individual's employment for compensation installs, maintains, troubleshoots,
upgrades, or repairs computer hardware, software, personal computer networks, or peripheral
equipment.
(c) "Image" means an image of child [
pornography
] 
sexual abuse material
 or an image
that a computer technician reasonably believes is child [
pornography
] 
sexual abuse material
.
(2) (a) A computer technician who in the course of employment for compensation
views an image on a computer or other electronic device that is or appears to be child
[
pornography
] 
sexual abuse material
 shall immediately report the finding of the image to:
(i) a state or local law enforcement agency, or the Cyber Tip Line at the National
Center for Missing and Exploited Children; or
(ii) an employee designated by the employer of the computer technician in accordance
with Subsection (3).
(b) A computer technician who willfully does not report an image as required under
Subsection (2)(a) is guilty of a class B misdemeanor.
(c) The identity of the computer technician who reports an image shall be confidential,
except as necessary for the criminal investigation and the judicial process.
(d) (i) If the computer technician makes or does not make a report under this section in
good faith, the technician is immune from any criminal or civil liability related to reporting or
not reporting the image.
(ii) In this Subsection (2)(d), good faith may be presumed from an employee's or
employer's previous course of conduct when the employee or employer has made appropriate
reports.
(e) It is a defense to prosecution under this section that the computer technician did not
report the image because the technician reasonably believed the image did not depict a person
younger than 18 years [
of age
] 
old
.
(3) (a) An employer of a computer technician may implement a procedure that
requires:
(i) the computer technician report an image as is required under Subsection (2)(a) to an
employee designated by the employer to receive the report of the image; and
(ii) the designated employee to immediately forward the report provided by the
computer technician to an agency under Subsection (2)(a)(i).
(b) Compliance by the computer technician and the designated employee with the
reporting process under Subsection (3)(a) is compliance with the reporting requirement of this
section and establishes immunity under Subsection (2)(d).
(4) 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 the
provider reports the image in compliance with 18 U.S.C. 2258A or a successor federal statute
that requires reporting by a provider of an image of child [
pornography
] 
sexual abuse material
.
Section 11. Section 
77-4-101
, which is renumbered from Section 77-4-1 is renumbered
and amended to read:
CHAPTER 4. PLEADINGS AND PROCEEDINGS BEFORE TRIAL
Part 1. Suppression of Resistance to Service of Process
[
77-4-1
].
 77-4-101.
Force by officer -- Arrest.
A public officer authorized to execute process issued by any court may use such force
as is reasonable and necessary to execute service of process. If necessary, he may seize, arrest,
and confine persons resisting or aiding and abetting resistance to his service of process.
Section 12. Section 
77-4-201
 is enacted to read:
Part 2. Evidence
 77-4-201.
Reproduction of child sexual abuse material -- Prohibition.
(1) As used in this section:
(a) "Child sexual abuse material" means the same as that term is defined in Section
76-5b-103
.
(b) "Law enforcement agency" means the same as that term is defined in Section
53-1-102
.
(c) "Victim" means the same as that term is defined in Section 
77-37-2
.
(2) In a proceeding involving child sexual abuse material, the child sexual abuse
material shall remain in the care, custody, and control of:
(a) a law enforcement agency; or
(b) a court.
(3) (a) In a proceeding involving child sexual abuse material, a court shall deny a
request by a defendant to copy, photograph, duplicate, or otherwise reproduce the child sexual
abuse material if the court or a law enforcement agency provides the defendant's attorney or an
individual the defendant may seek to qualify as an expert an adequate opportunity to view and
examine the child sexual abuse material.
(b) An individual described in Subsection (3)(a) may view or examine the child sexual
abuse material only at the law enforcement agency or court that has custody and control of the
child sexual abuse material.
(c) A defendant who is self represented:
(i) may not inspect the child sexual abuse material; and
(ii) may request that the court appoint counsel for the purpose of inspecting the child
sexual abuse material on behalf of the defendant.
(4) (a) In a proceeding involving child sexual abuse material, a victim, the victim's
attorney, or an individual the victim may, upon a showing of good cause, seek to qualify as an
expert, may view and examine the child sexual abuse material that depicts the victim upon a
showing of good cause.
(b) An individual described in Subsection (4)(a) may not copy, photograph, duplicate,
or otherwise reproduce the child sexual abuse material.
(c) An individual described in Subsection (4)(a) may view or examine the child sexual
abuse material only at the law enforcement agency or court that has custody and control of the
child sexual abuse material.
(d) The court or law enforcement agency may redact the child sexual abuse material
described in this Subsection (4) to protect the privacy of a third party.