Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 148 (2024GS)

Sponsor

Rep. Defay, A.

Final action

Governor Signed 3/13/2024

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• clarifies that certain prohibited materials in Title 76, Chapter 5b, Sexual Exploitation Act, includes computer-generated videos; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

ARTIFICIAL PORNOGRAPHIC IMAGES AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Ariel Defay
Senate Sponsor: 
Chris H. Wilson
LONG TITLE
General Description:
This bill amends provisions in Title 76, Chapter 5b, Sexual Exploitation Act.
Highlighted Provisions:
This bill:
▸ clarifies that certain prohibited materials in Title 76, Chapter 5b, Sexual
Exploitation Act, includes computer-generated videos; and
▸ makes technical and conforming 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 2023, Chapter 231
76-5b-203
, as last amended by Laws of Utah 2022, Chapter 181
76-5b-204
, as last amended by Laws of Utah 2022, Chapters 181, 184 and last amended
by Coordination Clause, Laws of Utah 2022, Chapter 184
76-5b-205
, as last amended by Laws of Utah 2022, Chapters 112, 181 and 185 and last
amended by Coordination Clause, Laws of Utah 2022, Chapter 185
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 sexual abuse material" means any visual depiction, including any live
performance, photograph, film, video, picture, or computer or computer-generated image [
or
]
,
picture, 
or video,
 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 sexual
abuse material or vulnerable adult sexual abuse material with or without consideration
]
, with or
without consideration, to sell, exhibit, display, provide, give, grant admission to, provide
access to, or otherwise transfer
.
(3) "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) "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.
(5) "Lacks capacity to consent" [
is as
] 
means the same as that term is
 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
] 
an individual
 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 sexual abuse material or vulnerable adult sexual abuse material; or
(b) the securing or hiring of [
persons
] 
individuals
 to engage in the photographing,
filming, taping, directing, producing, creating, designing, or composing of child sexual abuse
material or vulnerable adult 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
] 
individuals
 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
] 
individual
;
(f) the visual depiction of nudity or partial nudity for the purpose of causing sexual
arousal of any [
person
] 
individual
;
(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
] 
means the same as that term is
 defined in Subsection
76-5-111
(1).
(13) "Vulnerable adult 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 2. Section 
76-5b-203
 is amended to read:
76-5b-203.
Distribution of an intimate image -- Penalty.
(1) (a) As used in this section:
[
(i) "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.
]
[
(ii)
] 
(i)
 "Intimate image" means any visual depiction, photograph, film, video,
recording, picture, or computer or computer-generated image [
or
], picture, 
or video,
 whether
made or produced by electronic, mechanical, or other means, that depicts:
(A) exposed human male or female genitals or pubic area, with less than an opaque
covering;
(B) a female breast with less than an opaque covering, or any portion of the female
breast below the top of the areola; or
(C) the individual engaged in any sexually explicit conduct.
[
(iii)
] 
(ii)
 "Sexually explicit conduct" means actual or simulated:
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
whether between [
persons
] 
individuals
 of the same or opposite sex;
(B) masturbation;
(C) bestiality;
(D) sadistic or masochistic activities;
(E) exhibition of the genitals, pubic region, buttocks, or female breast of any
individual;
(F) visual depiction of nudity or partial nudity;
(G) fondling or touching of the genitals, pubic region, buttocks, or female breast; or
(H) explicit representation of the defecation or urination functions.
[
(iv)
] 
(iii)
 "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.
[
(v)
] 
(iv)
 "Single criminal episode" means the same as that term is defined in Section
76-1-401
.
(b) Terms defined in Section 
76-1-101.5
 apply to this section.
(2) (a) An actor commits the offense of distribution of an intimate image if:
(i) the actor knowingly or intentionally distributes to a third party, or knowingly
duplicates or copies an intimate image of an individual who is 18 years old or older and knows
or should know that the distribution, duplication or copying would cause a reasonable person to
suffer emotional distress or harm;
(ii) the actor has not received consent from the individual depicted in the image to
distribute the intimate image;
(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
(iv) except as provided in Subsection (2)(b), actual emotional distress or harm is
caused to the individual depicted in the image as a result of the distribution.
(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) (a) A violation of Subsection (2) is a class A misdemeanor.
(b) Notwithstanding Subsection (3)(a), a violation of Subsection (2) is a third degree
felony on a second or subsequent conviction for an offense under this section that does not
arise from a single criminal episode.
(4) This section does not apply to:
(a) except as provided in Section 
76-5b-203.5
:
(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.
(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 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
.
Section 3. Section 
76-5b-204
 is amended to read:
76-5b-204.
Sexual extortion -- Penalties.
(1) (a) As used in this section:
(i) "Adult" means an individual 18 years [
of age
] 
old
 or older.
(ii) "Child" means any individual under the age of 18.
[
(iii) "Distribute" means the same as that term is defined in Section 
76-5b-203
.
]
[
(iv)
] 
(iii)
 "Intimate image" means the same as that term is defined in Section
76-5b-203
.
[
(v)
] 
(iv)
 "Position of special trust" means the same as that term is defined in Section
76-5-404.1
.
[
(vi)
] 
(v)
 "Sexually explicit conduct" means the same as that term is defined in Section
76-5b-203
.
[
(vii)
] 
(vi)
 "Simulated sexually explicit conduct" means the same as that term is
defined in Section 
76-5b-203
.
[
(viii) "Vulnerable adult" means the same as that term is defined in Section 
76-5-111
.
]
(b) Terms defined in Section 
76-1-101.5
 apply to this section.
(2) (a) An actor commits the offense of sexual extortion if the actor:
(i) 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 by any means a threat:
(A) to the victim's person, property, or reputation; or
(B) to distribute an intimate image or video of the victim;
(ii) 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:
(A) to the victim's person, property, or reputation; or
(B) to distribute an intimate image or video of the victim; or
(iii) with intent to obtain a thing of value from a victim communicates, by any means, a
threat to distribute an intimate image or video of the victim.
(b) An actor commits aggravated sexual extortion when, in conjunction with the
offense described in Subsection (2)(a), any of the following circumstances have been charged
and admitted or found true in the action for the offense:
(i) the victim is a child or vulnerable adult;
(ii) the offense was committed by the use of a dangerous weapon or by violence,
intimidation, menace, fraud, or threat of physical harm, or was committed during the course of
a kidnapping;
(iii) the actor caused bodily injury or severe psychological injury to the victim during
or as a result of the offense;
(iv) the actor was a stranger to the victim or became a friend of the victim for the
purpose of committing the offense;
(v) the actor, before sentencing for the offense, was previously convicted of any sexual
offense;
(vi) the actor occupied a position of special trust in relation to the victim;
(vii) the actor 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
(viii) the actor 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.
(3) (a) If the actor is an adult:
(i) A violation of Subsection (2)(a) is a third degree felony.
(ii) A violation of Subsection (2)(b) in which the victim is an adult is a second degree
felony.
(iii) A violation of Subsection (2)(b) in which the victim is a child or a vulnerable adult
is a first degree felony.
(b) If the actor is a child:
(i) A violation of Subsection (2)(a) is a class A misdemeanor.
(ii) A violation of Subsection (2)(b) is a third degree felony if there is more than a
two-year age gap between the actor and the victim.
(c) An actor commits a separate offense under this section:
(i) for each victim the actor subjects to the offense outlined in Subsection (2)(a); and
(ii) for each separate time the actor subjects a victim to the offense outlined Subsection
(2)(a).
(d) This section does not preclude an actor from being charged and convicted of a
separate criminal act if the actor commits the separate criminal act while the individual violates
or attempts to violate this section.
(4) 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 4. Section 
76-5b-205
 is amended to read:
76-5b-205.
Unlawful distribution of a counterfeit intimate image -- Penalty.
(1) (a) As used in this section:
(i) "Child" means an individual under 18 years old.
(ii) "Counterfeit intimate image" means any visual depiction, photograph, film, video,
recording, picture, or computer or computer-generated image [
or
]
,
 picture, 
or video,
 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:
(A) exposed human male or female genitals or pubic area, with less than an opaque
covering;
(B) a female breast with less than an opaque covering, or any portion of the female
breast below the top of the areola; or
(C) the individual engaged in any sexually explicit conduct or simulated sexually
explicit conduct.
[
(iii) "Distribute" means the same as that term is defined in Section 
76-5b-203
.
]
[
(iv)
] 
(iii)
 "Sexually explicit conduct" means the same as that term is defined in
Section 
76-5b-203
.
[
(v)
] 
(iv)
 "Simulated sexually explicit conduct" means the same as that term is defined
in Section 
76-5b-203
.
[
(vi)
] 
(v)
 "Single criminal episode" means the same as that term is defined in Section
76-1-401
.
(b) Terms defined in Section 
76-1-101.5
 apply to this section.
(2) (a) An actor commits the offense of unlawful distribution of a counterfeit intimate
image if the actor knowingly or intentionally distributes a counterfeit intimate image that the
actor knows or should reasonably know would cause a reasonable person to suffer emotional or
physical distress or harm, if:
(i) the actor has not received consent from the depicted individual to distribute the
counterfeit intimate image; and
(ii) the counterfeit intimate image was created or provided by the actor without the
knowledge and consent of the depicted individual.
(b) An actor who is 18 years old or older commits aggravated unlawful distribution of
a counterfeit intimate image if, in committing the offense described in Subsection (2)(a), the
individual depicted in the counterfeit intimate image is a child.
(3) (a) (i) A violation of Subsection (2)(a) that is knowing or intentional is a class A
misdemeanor.
(ii) Notwithstanding Subsection (3)(a)(i), a violation of Subsection (2)(a) that is
knowing or intentional is a third degree felony on a second or subsequent conviction for an
offense under this section that does not arise from a single criminal episode.
(b) (i) A violation of Subsection (2)(b) that is knowing or intentional is a third degree
felony.
(ii) Notwithstanding Subsection (3)(b)(i), a violation of Subsection (2)(b) that is
knowing or intentional is a second degree felony on a second or subsequent conviction for an
offense under this section that does not arise from a single criminal episode.
(c) This section does not apply to an actor who engages in conduct that constitutes a
violation of this section to the extent that the actor is chargeable, for the same conduct, under
Section 
76-5b-201
, sexual exploitation of a minor, or Section 
76-5b-201.1
, aggravated sexual
exploitation of a minor.
(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) a counterfeit intimate image if the individual depicted in the image voluntarily
allows public exposure of the image;
(c) a counterfeit intimate image that is portrayed in a lawful commercial setting; or
(d) a counterfeit intimate image that is related to a matter of public concern or interest
or protected by the First Amendment to the United States Constitution or Article I, Sections 1
and 15 of the Utah Constitution.
(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 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 counterfeit
intimate image; and
(iii) the provider does not knowingly receive from or through a person who distributes
the 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 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 a 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 counterfeit intimate image;
(iii) the hosting company does not knowingly receive from or through a person who
distributes the 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
counterfeit intimate image; and
(iv) the hosting company immediately removes the counterfeit intimate image upon
notice from a law enforcement agency, prosecutorial agency, or the individual purportedly
depicted in the 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
.
Section 5. 
Effective date.
This bill takes effect on May 1, 2024.