Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 238 First Substitute (2024GS)

Sponsor

Rep. Brammer, B.

Final action

Governor Signed 3/13/2024

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• amends the definition of child sexual abuse material;
• provides a severability clause; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

SEXUAL EXPLOITATION OF A MINOR AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brady Brammer
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill criminalizes certain conduct relating to child sexual abuse material.
Highlighted Provisions:
This bill:
▸ amends the definition of child sexual abuse material;
▸ provides a severability clause; 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-201
, as last amended by Laws of Utah 2023, Chapters 231, 330
76-5b-201.1
, as last amended by Laws of Utah 2023, Chapter 231
ENACTS:
76-5b-303
, Utah Code Annotated 1953
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, 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
:
(i)
 of a minor engaging in sexually explicit conduct; [
or
]
(ii) a depiction that would lead a reasonable person to conclude that a minor is
engaging in sexually explicit conduct; or
(iii) artificially generated and depicts an individual with substantial characteristics 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.
(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 who is
 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-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 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 sexual abuse material; and
(ii) for each time the same minor is depicted in different child 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)
] 
(4)
 For a charge of violating this section, it is an affirmative defense that:
[
(i)
] 
(a)
 the defendant:
[
(A)
] 
(i)
 did not solicit the child sexual abuse material from the minor depicted in the
child sexual abuse material;
[
(B)
] 
(ii)
 is not more than two years older than the minor depicted in the child sexual
abuse material; and
[
(C)
] 
(iii)
 upon request of a law enforcement agent or the minor depicted in the child
sexual abuse material, removes from an electronic device or destroys the child sexual abuse
material and all copies of the child sexual abuse material in the defendant's possession; and
[
(ii)
] 
(b)
 the child 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) 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 sexual abuse
material on tangible or intangible property, or of detecting and reporting the presence of child
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 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 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 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 sexual abuse material within the scope of the employee's employment; or
(g) an attorney who is required to view child 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 3. 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 sexual abuse material;
(b) knowingly produces child 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 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 sexual abuse material; and
(b) for each time the same minor is depicted in different child 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)
] 
(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) 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 sexual abuse
material on tangible or intangible property, or of detecting and reporting the presence of child
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 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 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 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 sexual abuse material within the scope of the employee's employment; or
(g) an attorney who is required to view child 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 4. Section 
76-5b-303
 is enacted to read:
 76-5b-303.
Severability.
(1) If any provision of this chapter or the application of any provision to any person or
circumstance is held invalid by a final decision of a court, the remainder of this chapter shall be
given effect without the invalid provision or application.
(2) The provisions of this chapter are severable.
Section 5. 
Effective date.
This bill takes effect on May 1, 2024.