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First Substitute H.B. 135
Representative Katherine M. Bryson proposes to substitute the following bill:
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CHILD PORNOGRAPHY AMENDMENTS
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2001 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Katherine M. Bryson
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This act modifies provisions of the Utah Criminal Code relating to the sexual exploitation
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of children. The act defines terms related to child pornography. The act modifies the crime
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related to sexual exploitation of a minor. The act also makes technical changes.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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76-5a-2, as last amended by Chapter 226, Laws of Utah 1985
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76-5a-3, as last amended by Chapter 128, Laws of Utah 2000
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
76-5a-2
is amended to read:
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76-5a-2. Definitions.
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As used in this chapter:
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(1) "Child pornography" means any visual depiction, including any live performance,
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photograph, film, video, picture, or computer or computer-generated image or picture, whether
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made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where:
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(a) the production of the visual depiction involves the use of a minor engaging in sexually
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explicit conduct;
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(b) the visual depiction is of a minor engaging in sexually explicit conduct; or
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(c) the visual depiction has been created, adapted, or modified to appear that an
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identifiable minor is engaging in sexually explicit conduct.
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[(1)] (2) "Distribute" means the selling, exhibiting, displaying, wholesaling, retailing,
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providing, giving, granting admission to, or otherwise transferring or presenting [material or live
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performances] child pornography with or without consideration.
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(3) "Identifiable minor":
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(a) means a person:
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(i) (A) who was a minor at the time the visual depiction was created, adapted, or modified;
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or
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(B) whose image as a minor was used in creating, adapting, or modifying the visual
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depiction; and
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(ii) who is recognizable as an actual person by the person's face, likeness, or other
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distinguishing characteristic, such as a birthmark, or other recognizable feature; and
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(b) does not require proof of the actual identity of the identifiable minor.
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[(2)] (4) "Live performance" means any act, play, dance, pantomime, song, or other
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activity performed by live actors in person.
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[(3) "Material" means any visual representation including photographs, motion pictures,
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slides, videotapes, or other pictorial representations produced or recorded by any mechanical,
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chemical, photographic, or electrical means and includes undeveloped photographs, negatives, or
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other latent representational objects.]
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[(4)] (5) "Minor" means a person younger than 18 years of age.
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[(5) "Nude] (6) "Nudity or [partially nude] partial nudity" means any state of dress or
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undress in which the human genitals, pubic region, buttocks, or the female breast, at a point below
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the top of the areola, is less than completely and opaquely covered.
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[(6)] (7) "Produce" means the photographing, filming, taping, directing, producing,
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creating, designing, or composing of [material or live performances] child pornography or the
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securing or hiring of persons to engage in the production of [material or live performances] child
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pornography.
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[(7) "Sexual] (8) "Sexually explicit conduct" means [and includes the following acts,
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whether actual or simulated, regardless of the gender of the participants or their state of dress]
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actual or simulated:
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(a) sexual intercourse [or deviate sexual intercourse], including genital-genital,
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oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
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(b) masturbation;
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(c) [sodomy or] bestiality;
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(d) [sadomasochistic activities] sadistic or masochistic activities;
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(e) lascivious exhibition of the genitals or pubic area of any person;
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(f) the visual depiction of nudity or partial nudity for the purpose of causing sexual arousal
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of any person;
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[(e)] (g) the fondling or touching [for purpose of sexual arousal] of the genitals, pubic
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region, buttocks, or female breast; or
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[(f)] (h) the explicit representation of the defecation or urination functions.
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[(8)] (9) "Simulated [sexual] sexually explicit conduct" means a feigned or pretended act
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of [sexual] sexually explicit conduct which duplicates, within the perception of an average person,
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the appearance of an actual act of [sexual] sexually explicit conduct.
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Section 2.
Section
76-5a-3
is amended to read:
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76-5a-3. Sexual exploitation of a minor -- Offenses.
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(1) A person is guilty of sexual exploitation of a minor:
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(a) when [he] the person knowingly produces, distributes, possesses, or possesses with
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intent to distribute, [material or a live performance depicting:] child pornography; or
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[(i) a nude or partially nude minor for the purpose of causing sexual arousal of any person;
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or]
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[(ii) any minor's engagement in sexual conduct alone or with another person; or]
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(b) if [he] the person is a minor's parent or legal guardian and knowingly consents to or
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permits that minor to be sexually exploited under Subsection (1)(a) [above].
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(2) Sexual exploitation of a minor is a felony of the second degree.
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(3) It is a separate offense under this section:
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(a) for each minor depicted, and if more than one minor is depicted in the [same material
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or live performance] child pornography in violation of this section, the depiction of each individual
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minor in the [material or live performance] child pornography is a separate offense; and
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(b) each time the same minor is depicted in different [material; and] child pornography.
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[(c) each time the same minor is depicted in a separate live performance.]
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(4) It is an affirmative defense to a charge of violating this section that no person under
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18 years of age was actually depicted in the visual depiction or used in producing or advertising
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the visual depiction.
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(5) This section does not apply to:
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(a) any person, including a law enforcement officer or a prosecutor, who is charged by law
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to prosecute this section and who possesses child pornography solely in connection with that
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individual's official duties; or
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(b) a defense attorney who possesses child pornography solely in connection with the
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defense of a person charged under this section.
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