SB198 H JUD AM #1
WRV 3133
The Committee on the Judiciary moved to amend the bill by striking everything after the enacting clause and inserting in lieu thereof the following:
(a) As used in this section:
(1) “Disclose” means to publish, publicly display, distribute, deliver, circulate or disseminate by any means, including, but not limited to, electronic transmission.
(2) “Image” means a photograph, videotape, motion picture film, digital recording or any product of any mechanical or electronic recording process or device that can preserve, for later viewing, a visual image.
(3) “Intimate parts” means a person’s genitalia, pubic area, anus or female post-pubescent breasts.
(4) To “publicly disclose” means to disclose an image to one or more persons other than those persons whom the person depicted understood would view the image at the time it was captured.
(5) “Fabricated intimate image” means an image of an identifiable depicted individual that was created by the use of artificial intelligence or other computer technology capable of processing and interpreting specific data inputs and depicts computer-generated intimate parts or the intimate parts of another human being as the intimate parts of the depicted individual.
(b) No person may knowingly and intentionally disclose, cause to be disclosed or threaten to disclose, with the intent to harass, intimidate, threaten, humiliate, embarrass, or coerce, a fabricated intimate image of another or an image of another which shows the intimate parts of the depicted person or shows the depicted person engaged in sexually explicit conduct which was captured under circumstances where the person depicted had a reasonable expectation that the image would not be publicly disclosed.
(c)(1) A person convicted of a violation of subsection (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than one year, fined not less than $1,000 nor more than $5,000, or both confined and fined.
(2) Notwithstanding the provisions of subdivision (1) of this subsection, a person convicted of a second or subsequent violation of subsection (b) of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not more than three years, fined not less than $2,500 nor more than $10,000, or both imprisoned and fined.
(d) The provisions of this section do not apply to:
(1) Images disclosed with the prior written consent of the person depicted;
(2) Images depicting the person voluntarily exposing himself or herself in a public or commercial setting; or
(3) Disclosures made through the reporting of illegal conduct or the lawful and common practices of law enforcement, criminal reporting, legal proceeding or medical treatment.
(e) Nothing in this section shall be construed to impose liability on the provider of an interactive computer service as defined by 47 U. S. C. §230(f)(2), an information service as defined by 47 U. S. C. §153(24), or telecommunications service as defined by 47 U. S. C. §153(53), for content provided by another person.
For the purposes of this article:
(a) (1) “Minor” means any child under eighteen 18 years of age.
(b) (2) “Knowledge” means knowing or having reasonable cause to know which warrants further inspection or inquiry.
(c) (3) “Sexually explicit conduct” includes any of the following, whether actually performed or simulated:
(1) (A) Genital to genital intercourse;
(2) (B) Fellatio;
(3) (C) Cunnilingus;
(4) (D) Anal intercourse;
(5) (E) Oral to anal intercourse;
(6) (F) Bestiality;
(7) (G) Masturbation;
(8) (H) Sadomasochistic abuse, including, but not limited to, flagellation, torture, or bondage;
(9) (I) Excretory functions in a sexual context; or
(10) (J) Exhibition of the genitals, pubic, or rectal areas of any person in a sexual context.
(d) (4) “Person” means an individual, partnership, firm, association, corporation, or other legal entity: Provided, That this term does not apply to the provider of an interactive computer service as defined by 47 U. S. C. §230(f)(2), an information service as defined by 47 U. S. C. §153(24), or telecommunications service as defined by 47 U. S. C. §153(53), for content provided by another person.
(5) “Visual portrayal” means:
(A) A photograph;
(B) A motion picture;
(C) A digital image;
(D) A digital video recording;
(E) Any other mechanical or electronic recording process or device that can preserve, for later viewing, a visual image of a person that includes, but is not limited to, computers, cellphones, personal digital assistance, and other digital storage or transmitting devices; or
(F) Any media listed in this subdivision which was created, generated, or otherwise produced, in whole or in part, by any manner of manipulation, including, but not limited to, artificial intelligence.
(6) “Computer-generated child pornography” means:
(A) Any visual portrayal of an identifiable minor that has been created, adapted, or modified to depict the minor as engaging in sexually explicit conduct; or
(B) Any visual portrayal that appears to depict a minor engaged in sexually explicit conduct if the visual portrayal is:
(i) Created by the use of artificial intelligence or other computer technology capable of processing and interpreting specific data inputs to create a visual portrayal; and
(ii) Indistinguishable from a minor.
(7) “Identifiable minor” means any visual portrayal that depicts a minor who is identifiable from the matter itself or from information displayed with or otherwise connected to the matter, and that was created or altered by the use of artificial intelligence or other computer technology capable of processing and interpreting specific data inputs to depict the minor.
(8) “Indistinguishable” as used with respect to a visual portrayal, means virtually indistinguishable, in that the visual portrayal is such that an ordinary person viewing the visual portrayal would conclude that the visual portrayal is of an actual minor engaged in sexually explicit conduct. This definition does not apply to visual portrayals that are drawings, cartoons, sculptures, or paintings depicting minors or adults.
(b) Any person who photographs or films such creates a visual portrayal of a minor engaging in any sexually explicit conduct shall be is guilty of a felony, and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned in the penitentiary not more than ten 10 years, or both fined and imprisoned.
(c) Any parent, legal guardian, or person having custody and control of a minor, who photographs or films creates a visual portrayal of such minor in any sexually explicit conduct or causes or knowingly permits, uses, persuades, induces, entices, or coerces such minor child to engage in or assist in any sexually explicit act shall be is guilty of a felony when such person has knowledge that any such act may be photographed or filmed is used to create a visual portrayal. Upon conviction thereof, such person shall be fined not more than $10,000 or imprisoned in the penitentiary not more than ten 10 years, or both fined and imprisoned.
(d) It is not a defense under this section that the minor depicted has attained the age of at least 18 years old at the time of investigation and/or prosecution, as long as the visual portrayal of the minor used was originally taken or captured when the subject was less than 18 years of age.
(e) It is not a defense under this section that the minor depicted is deceased at the time of investigation and/or prosecution, regardless of whether the minor depicted had attained the age of 18 years of age at the time of his or her death.
§61-8C-3. Distribution and exhibiting of material depicting minors engaged in sexually explicit conduct or computer-generated child pornography prohibited; penalty.
(a) Any person who, knowingly and willfully, sends or causes to be sent or distributes, exhibits, possesses, electronically accesses with intent to view or displays or transports any material visually portraying visual portrayal of a minor engaged in any sexually explicit conduct or computer-generated child pornography is guilty of a felony.
(b) It is not a defense to this section that a minor subject’s identity and/or age cannot be ascertained. It is sufficient that the material visually portrays a minor, regardless of whether the subject’s age is represented to be less than age 18 years old.
(c) It is not a defense under this section that the visual portrayal was created, in whole or in part, by digital manipulation, artificial intelligence, or any other means.
(d) It is not a defense under this section that the minor depicted has attained the age of at least 18 years old at the time of investigation and/or prosecution, as long as the visual portrayal of the minor was originally taken or captured when the subject was under the age of 18 years of age.
(e) It is not a defense under this section that the minor depicted is deceased at the time of investigation and/or prosecution, regardless of whether the minor depicted had attained the age of at least 18 years of age at the time of his or her death.
(b) (f) Any person who violates the provisions of subsection (a) of this section when the conduct involves fifty 50 or fewer images shall, upon conviction, be imprisoned in a state correctional facility for not more less than two years nor more than five years or fined not more than $2,000 $5,000 or both.
(c) (g) Any person who violates the provisions of subsection (a) of this section when the conduct involves more than fifty 50 but fewer than six hundred 300 images shall, upon conviction, be imprisoned in a state correctional facility for not less than two three nor more than ten 15 years or fined not more than $5,000 $10,000, or both.
(d) (h) Notwithstanding the provisions of subsections (b) and (c) of this section, any person who violates the provisions of subsection (a) of this section when the conduct involves six hundred 300 or more images or depicts violence against a child or a child engaging in bestiality shall, upon conviction, be imprisoned in a state correctional facility for not less than five nor more than fifteen 20 years or fined not more than $25,000, or both.
(e) (i) For purposes of this section each video clip, movie, or similar recording of five minutes or less shall constitute seventy-five 100 images. A video clip, movie or similar recording of a duration longer than five minutes shall be deemed to constitute constitutes seventy-five 100 images for every two minutes in length it exceeds five minutes.
§61-8C-3a. Prohibiting child erotica; penalties.
(a) Any person age eighteen 18 or over who knowingly and intentionally produces, possesses, displays or distributes, in any form, any visual portrayals of minors who are partially clothed, where the visual portrayals are: (1) Unrelated to the sale of a commercially available legal product; and (2) used for purely prurient purposes, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than one year or fined not more than $1,000, or both confined and fined.
(b) As used in this section only:
(1) "Purely prurient purposes" means for the specific purpose of sexual gratification or sexual arousal from viewing the visual portrayals prohibited by this section; and
(2) "Commercially available" means for sale to the general public.
(3) A "minor" is a child under the age of sixteen years, or a person who is sixteen years of age or older but less than eighteen years old and who is mentally defective or mentally incapacitated.
§61-8C-3b. Prohibiting juveniles from manufacturing, possessing, and distributing nude or partially nude images of minors; creating exemptions; declaring a violation to be an act of juvenile delinquency; and providing for the punishment thereof.
(a) Any minor who intentionally possesses, creates, produces, distributes, presents, transmits, posts, exchanges, or otherwise disseminates any computer-generated child pornography or a visual portrayal of another minor posing in an inappropriate sexual manner or who distributes, presents, transmits, posts, exchanges, or otherwise disseminates a visual portrayal of himself or herself posing in an inappropriate sexual manner is guilty of an act of delinquency and, upon adjudication, disposition may be made by the circuit court pursuant to the provisions of §49-4-701 through §49-4-725 of this code.
(b) As used in this section, “posing in an inappropriate sexual manner” means exhibition of a bare female breast, female or male genitalia, pubic, or rectal areas of a minor for purposes of sexual gratification.
(1) “Posing in an inappropriate sexual manner” means exhibition of a bare female breast, female or male genitalia, pubic, or rectal areas of a minor for purposes of sexual titillation.
(2) “Visual portrayal” means:
(A) A photograph;
(B) A motion picture;
(C) A digital image;
(D) A digital video recording; or
(E) Any other mechanical or electronic recording process or device that can preserve, for later viewing, a visual image of a person that includes, but is not limited to, computers, cellphones, personal digital assistance, and other digital storage or transmitting devices;
(c) It shall be an affirmative defense to an alleged violation of this section that a minor charged with possession of the prohibited visual depiction portrayal did neither solicit its receipt nor distribute, transmit, or present it to another person by any means.
(d) Notwithstanding the provisions of §15-12-1 et seq. of this code, an adjudication of delinquency under the provisions of this section shall not subject the minor to the requirements of that article and chapter.
§61-8C-3c. Confidentiality; exemption from prosecution.
(a) Nothing in this article shall be construed to prevent the lawful investigation and/or prosecution of the criminal offenses described in this article: Provided, That prohibited media or visual portrayal described in this article shall not be published to the public at any time.
(b) It does not constitute an offense of the crimes set forth in this article when the following persons possess or distribute prohibited media or material, or visual portrayal while acting in the performance of their official duties:
(1) Law enforcement officials, including those entities with specialized investigatory experience with whom law enforcement agencies regularly contract for the purpose of providing investigatory services and assistance;
(2) Prosecuting attorneys;
(3) Attorneys acting as officers of the court and while acting in the performance of their official duties;
(4) Judges and magistrates;
(5) Jurors hearing a case involving an alleged violation of offenses in this article;
(6) Support personnel for the persons listed in this section; and
(7) Any person acting in accordance and in compliance with a valid order issued by a circuit court of this state or the Supreme Court of Appeals.
(c) The Supreme Court of Appeals is hereby requested to promulgate such rules, protocols, and forms which are necessary to regulate access to, use, and handling of prohibited media and visual portrayals described in this article, giving due consideration to the privacy rights of victims and the due process rights of defendants in criminal proceedings.
(d)(1) Any person not listed in subsection (b) of this section who, in the course and scope of employment or business, views an image or images on a computer or electronic device that is or appears to be material visually portraying a minor engaged in any sexually explicit conduct shall immediately report the discovery of the image or images to a local or state law enforcement agency or the Cyber Tipline at the National Center for Missing and Exploited Children. The report must include the name and address of the owner or person claiming a right to possession of the computer or electronic device, if known, and as permitted by federal law. For purposes of this subdivision, such reporting may include furnishing the law enforcement officer with any image, information, or data that the person reasonably believes to be evidence of material visually portraying a minor engaged in any sexually explicit conduct, transmission of material visually portraying a minor engaged in any sexually explicit conduct, or an image, information, or data that is harmful to minors.
(2) Except in a case of willful or wanton misconduct, compliance with subdivision (1) of this subsection is an affirmative defense to an alleged violation of this section.”
Adopted
Rejected