SB109INTRODUCED
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SB109
1MUJLZL-1
By Senators Weaver, Bell
RFD: Fiscal Responsibility and Economic Development
First Read: 15-Feb-24
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5 1MUJLZL-1 02/15/2024 THR (L)THR 2024-719
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First Read: 15-Feb-24
SYNOPSIS:
This bill would define the terms "child sexual
abuse material," "sexually explicit conduct," and
"virtually indistinguishable depiction."
Under existing law, it is unlawful for any
person to knowingly disseminate, display publicly,
knowingly possess, knowingly possess with intent to
disseminate, or knowingly film, print, record,
photograph, or otherwise produce certain obscene
material depicting an individual under 17 years of age.
This bill would provide that it is unlawful for
any person to knowingly disseminate, distribute,
display publicly, knowingly possess, knowingly possess
with intent to disseminate, or knowingly film, print,
record, photograph, or otherwise produce child sexual
abuse material.
This bill would also provide that it is unlawful
for any person to knowingly advertise, promote,
present, or solicit by any means, including by
computer, child sexual abuse material.
Under existing law, it is unlawful for any
parent or guardian to knowingly permit or allow their
child, ward, or dependent under 17 years of age to
engage in the production of certain obscene material
containing a visual depiction of the child, ward, or
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containing a visual depiction of the child, ward, or
dependent.
This bill would provide that it is unlawful for
any parent or guardian to knowingly permit or allow
their child, ward, or dependent under 18 years of age
to engage in the production of child sexual abuse
material depicting the child, ward, or dependent.
This bill would authorize an individual to
commence a civil action against a person who commits
the crime of distribution of a private image,
dissemination or public display of child sexual abuse
material, possession of child sexual abuse material,
possession with intent to distribute child sexual abuse
material, permitting or allowing a child, ward, or
dependent to engage in the production of child sexual
abuse material as a parent or guardian, or production
of child sexual abuse material.
This bill would also authorize a court to award
certain punitive damages against an individual who,
with wantonness or malice, commits the crime of
distribution of a private image, dissemination or
public display of child sexual abuse material,
possession of child sexual abuse material, possession
with intent to distribute child sexual abuse material,
permitting or allowing a child, ward, or dependent to
engage in the production of child sexual abuse material
as a parent or guardian, or production of child sexual
abuse material.
This bill would direct the State Board of
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This bill would direct the State Board of
Education to require local school boards to develop
policies related to the distribution of private images
and the distribution, dissemination, public display,
possession, possession with intent to distribute, and
production of child sexual abuse material.
This bill would also make nonsubstantive,
technical revisions to update the existing code
language to current style.
Section 111.05 of the Constitution of Alabama of
2022, prohibits a general law whose purpose or effect
would be to require a new or increased expenditure of
local funds from becoming effective with regard to a
local governmental entity without enactment by a 2/3
vote unless: it comes within one of a number of
specified exceptions; it is approved by the affected
entity; or the Legislature appropriates funds, or
provides a local source of revenue, to the entity for
the purpose.
The purpose or effect of this bill would be to
require a new or increased expenditure of local funds
within the meaning of the section. However, the bill
does not require approval of a local governmental
entity or enactment by a 2/3 vote to become effective
because it comes within one of the specified exceptions
contained in the section.
A BILL
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A BILL
TO BE ENTITLED
AN ACT
Relating to child sexual abuse material; to amend
Sections 13A-6-240, as last amended by Act 2023-464, 2023
Regular Session, 13A-12-190, 13A-12-191, 13A-12-192,
13A-12-193, 13A-12-194, 13A-12-196, 13A-12-197, and
13A-12-198, Code of Alabama 1975; to further provide for the
age of a child for offenses involving child sexual abuse
material; to provide a cause of action for certain offenses
involving child sexual abuse material; to authorize a court to
award punitive damages against an individual who commits
certain offenses involving child sexual abuse material; to
direct the State Board of Education to require local school
boards to develop policies related to certain crimes; to
repeal Section 13A-12-195, Code of Alabama 1975, relating to
the commercial exploitation of child sexual abuse material; to
make nonsubstantive, technical revisions to update the
existing code language to current style; and in connection
therewith would have as its purpose or effect the requirement
of a new or increased expenditure of local funds within the
meaning of Section 111.05 of the Constitution of Alabama of
2022.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. This act shall be known and may be cited as
the Alabama Child Protection Act of 2024.
Section 2. Sections 13A-6-240, as last amended by Act
2023-464, 2023 Regular Session, 13A-12-190, 13A-12-191,
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2023-464, 2023 Regular Session, 13A-12-190, 13A-12-191,
13A-12-192, 13A-12-193, 13A-12-194, 13A-12-196, 13A-12-197,
and 13A-12-198, Code of Alabama 1975, are amended to read as
follows:
"§13A-6-240
(a) A person commits the crime of distributing a
private image if he or she knowingly posts, emails, texts,
transmits, or otherwise distributes a private image when the
depicted person individual has not consented to the
transmission and the depicted person individual had a
reasonable expectation of privacy against transmission of the
private image.
(b)(1) For purposes of this section, "private image"
means a photograph, digital image, video, film, or other
recording of a person an individual who is identifiable from
the recording itself or from the circumstances of its
transmission and who is engaged in any act of sadomasochistic
abuse, sexual intercourse, sexual excitement, masturbation,
breast nudity, as defined in Section 13A-12-190, genital
nudity, or other sexual conduct sexually explicit conduct, as
defined in Section 13A-12-190 .
(2) The term includes a recording that has been edited,
altered, or otherwise manipulated from its original form.
(c)(1) For purposes of this section, a "reasonable
expectation of privacy" includes, but is not limited to,
either of the following circumstances:
a. The person individual depicted in the private image
created it or consented to its creation believing that it
would remain confidential.
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would remain confidential.
b. The sexual conduct depicted in the image was
involuntary.
(2) There is no reasonable expectation of privacy
against the transmission of a private image made voluntarily
in a public or commercial setting.
(d) It is a defense to distributing a private image if
the distribution of the private image was made in the public
interest, including, but not limited to, the reporting of
unlawful conduct; the lawful and common practices of law
enforcement, legal proceedings, or medical treatment; or a
bona fide attempt to prevent further distribution of the
private image.
(e) For the purposes of determining jurisdiction, the
crime of distributing a private image shall be considered to
be committed in any county in which any part of the crime took
place, in the county of residence of the victim or defendant,
or any county where the image is received.
(f) A violation of this section is a Class A
misdemeanor. A subsequent adjudication or conviction under
this section is a Class C felony."
"§13A-12-190
For the purposes of this division, the following terms
shall have the following meanings respectively ascribed to
them by this section :
(1)(4) DISSEMINATE. To transmit, distribute, sell,
lend, provide, transfer, or show, including through electronic
means.
(2)(3) DISPLAY PUBLICLY. The exposing, placing,
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(2)(3) DISPLAY PUBLICLY. The exposing, placing,
posting, exhibiting, or in any fashion displaying in any
location, whether public or private, an item in such a manner
that it may be readily seen and its content or character
distinguished by normal unaided vision viewing it from a
public thoroughfare, depot, or vehicle.
(3)(9) PUBLIC THOROUGHFARE, DEPOT, OR VEHICLE. Any
street, highway, park, depot, or transportation platform or
other place, whether indoors or outoutdoors, or any vehicle
for public transportation, owned or operated by government,
either directly or through a public corporation or authority,
or owned or operated by any agency of public transportation
that is designed for the use, enjoyment, or transportation of
the general public.
(4)(6) KNOWINGLY. A person knowingly disseminates or
publicly displays obscene matter acts regarding child sexual
abuse material when the person knows the nature of the
mattermaterial. A person knows the nature of the matter
material when either of the following circumstances exist:
a. The person is aware of the character and content of
the mattermaterial.
b. The person recklessly disregards circumstances
suggesting the character and content of the mattermaterial.
(5)(10)SADO-MASOCHISTIC SADOMASOCHISTIC ABUSE. Such
term means either Either of the following:
a. Flagellation or torture, for the purpose of sexual
stimulation, by or upon a person an individual who is nude or
clad in undergarments or in a revealing or bizarre costume.
b. The condition of a person an individual who is nude
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b. The condition of a person an individual who is nude
or clad in undergarments or in a revealing or bizarre costume
being fettered, bound, or otherwise physically restrained for
the purpose of sexual stimulation.
(6)(12) SEXUAL EXCITEMENT. The condition of human male
or female genitals when in a state of sexual stimulation.
(7)(13) SEXUAL INTERCOURSE. Intercourse, real or
simulated, whether genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons
individuals of the same or opposite sex or between a human and
an animal.
(8)(7) MASTURBATION. Manipulation, by hand or
instrument, of the human genitals, whether one's own or
another's for the purpose of sexual stimulation.
(9)(8) OTHER SEXUAL CONDUCT. Any touching of the
genitals, pubic areas, or buttocks of the human male or
female, or the breasts of the female, whether alone or between
members of the same or opposite sex or between humans and
animals in an act of apparent sexual stimulation or
gratification.
(10)(1) BREAST NUDITY. The lewd showing of the
post-pubertal human female breasts below a point immediately
above the top of the areola.
(11)(5) GENITAL NUDITY. The lewd showing of the
genitals or pubic area.
(12) MATTER. Any book, magazine, newspaper, or other
printed material, or any picture, photograph, motion picture,
video cassette, tape, record, digital video disc (DVD), video
compilation, or electronic depiction in a comparable format,
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compilation, or electronic depiction in a comparable format,
or an image, file, download, or other content stored, or
reproduced by using a computer or electronic device or other
digital storage, or any other thing, articles, or materials
that either are or contain a photographic or other visual
depiction of a live act, performance, or event.
(13) OBSCENE. a. When used to describe any matter that
contains a visual reproduction of breast nudity, the term
shall include all of the following:
1. Applying contemporary local community standards, on
the whole, appeals to the prurient interest.
2. Is patently offensive.
3. On the whole, lacks serious literary, artistic,
political, or scientific value.
b. When used to describe matter that is a depiction of
an act of sado-masochistic abuse, sexual intercourse, sexual
excitement, masturbation, genital nudity, or other sexual
conduct, the term means matter containing a visual
reproduction that itself lacks serious literary, artistic,
political, or scientific value.
(14) LOCAL COMMUNITY. The judicial circuit in which the
indictment is brought.
(15) VISUAL DEPICTION. A portrayal, representation,
illustration, image, likeness, or other thing that creates a
sensory impression, whether an original, duplicate, or
reproduction.
(16)(11) SEPARATE OFFENSE. The depiction of an
individual less than 17 18 years of age that violates this
division shall constitute a separate offense for each single
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division shall constitute a separate offense for each single
visual depiction.
(2) CHILD SEXUAL ABUSE MATERIAL. Any visual depiction
of an individual under 18 years of age engaged in any act of
sexually explicit conduct, including a virtually
indistinguishable depiction.
(14) SEXUALLY EXPLICIT CONDUCT. Actual or simulated
conduct that includes sadomasochistic abuse, sexual
excitement, sexual intercourse, masturbation, breast nudity,
genital nudity, or other sexual conduct.
(15) VIRTUALLY INDISTINGUISHABLE DEPICTION. A visual
depiction created, altered, or produced by digital, computer
generated, or other means that an ordinary person would
conclude is of an actual individual under 18 years of age
engaged in sexually explicit conduct. "
"§13A-12-191
(a) Any person who shall knowingly disseminate or
display publicly any obscene matter containing a visual
depiction of a person under the age of 17 years engaged in any
act of sado-masochistic abuse, sexual intercourse, sexual
excitement, masturbation, breast nudity, genital nudity, or
other sexual conduct child sexual abuse material shall be
guilty of a Class B felony.
(b) Any person who shall knowingly advertise, promote,
present, distribute, or solicit by any means, including by
computer, any material or purported material in a manner that
reflects the belief, or that is intended to cause another to
believe, that the material or purported material is a visual
depiction of an actual minor engaging in sexually explicit
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depiction of an actual minor engaging in sexually explicit
conduct shall be guilty of a Class B felony. "
"§13A-12-192
(a) Any person who knowingly possesses with intent to
disseminate any obscene matter that contains a visual
depiction of a person under the age of 17 years engaged in any
act of sado-masochistic abuse, sexual intercourse, sexual
excitement, masturbation, breast nudity, genital nudity, or
other sexual conduct child sexual abuse material shall be
guilty of a Class B felony. Any transfer of the visual
depiction child sexual abuse material from any electronic
device to any other device, program, application, or any other
place with storage capability which that can be made available
or is accessible by other users, is prima facie evidence of
possession with intent to disseminate.
(b) Any person who knowingly possesses any obscene
matter that contains a visual depiction of a person under the
age of 17 years engaged in any act of sado-masochistic abuse,
sexual intercourse, sexual excitement, masturbation, breast
nudity, genital nudity, or other sexual conduct child sexual
abuse material shall be guilty of a Class C felony."
"§13A-12-193
(a) In proving that a person in a visual depiction who
is engaged in any obscene act set out in Sections 13A-12-191,
13A-12-192, 13A-12-196 and 13A-12-197 is under the age of 17
years, the state is not required to introduce into evidence a
birth certificate, produce testimony as to the date of birth
of such person, or produce testimony of any person who knows
or is acquainted with the person alleged to be under the age
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or is acquainted with the person alleged to be under the age
of 17 years. If the defendant or the state intends to rely on
a birth certificate to prove the date of birth of any person
in the visually reproduced matter, such defendant or the state
shall file with the clerk of the court in which the action is
pending, at least 15 days prior to trial, a notice of an
intention to rely on an official, certified copy of a birth
certificate together with a copy of the birth certificate.
(b)(a)A jury, or the court if a jury trial is waived,
The factfinder may infer from the following factors whether or
not the person individual displayed or depicted in any obscene
matter visual depiction is under the age of 17 18 years of
age:
(1) The general body growth and bone structure of the
person;individual.
(2) The development of pubic hair or body hair on the
person;individual.
(3) The development of the person's individual's sexual
organs;.
(4) The context in which the person individual is
placed by any accompanying printed or text material ;.
(5) Any expert testimony as to the degree of maturity
of the personindividual.
(c)(b) The existence of any or all of the factors
listed in subsection (b) of this section (a) shall not operate
to change the requirement that before any conviction may be
had, the state must convince the factfinder beyond a
reasonable doubt that the person individual engaged in the act
of sado-masochistic abuse, sexual intercourse, sexual
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of sado-masochistic abuse, sexual intercourse, sexual
excitement, masturbation, breast nudity, genital nudity, or
other sexual conduct in the visual depiction sexually explicit
conduct is or is virtually indistinguishable from an
individual under the age of 17 18 years of age.
(c) It is an affirmative defense to prosecution under
this division if the actual individual purported to be under
18 years of age and engaged in sexually explicit conduct was
an actual individual 18 years of age or older at the time of
the offense."
"§13A-12-194
The state shall not be required to establish the actual
existence or identity, either in the indictment or in any
subsequent proceeding, of the person individual alleged to be
under the age of 17 18 years of age who is engaged in any of
the acts described in Sections 13A-12-191, 13A-12-192,
13A-12-196 and 13A-12-197, which are visual depiction act of
sexually explicit conduct ."
"§13A-12-196
Any parent or guardian who knowingly permits or allows
their child, ward, or dependent under the age of 17 18 years
of age to engage in the production of any obscene matter child
sexual abuse material containing a visual depiction of such
the child, ward, or dependent under the age of 17 years
engaged in any act of sado-masochistic abuse, sexual
excitement, masturbation, breast nudity, genital nudity, or
other sexual conduct shall be guilty of a Class A felony."
"§13A-12-197
(a) Any person who knowingly films, prints, records,
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(a) Any person who knowingly films, prints, records,
photographs, or otherwise produces any obscene matter that
contains a visual depiction of a person under the age of 17
years engaged in any act of sado-masochistic abuse, sexual
intercourse, sexual excitement, masturbation, breast nudity,
genital nudity, or other sexual conduct child sexual abuse
material shall be guilty of a Class A felony.
(b) For any person who violates this section, each
depiction of each individual less than 17 years of age
instance of child sexual abuse material constitutes a separate
offense."
"§13A-12-198
Any article, equipment, machine, materials, matter,
vehicle, or other thing whatsoever used in the commercial
production, transportation, dissemination, display , or storage
of any obscene matter displaying or depicting a person under
the age of 17 years engaged in any of the obscene acts
described in Sections 13A-12-191, 13A-12-192, 13A-12-196 and
13A-12-197 child sexual abuse material shall be contraband and
shall be forfeited to the State of Alabama. The manner,
method, and procedure for the forfeiture and condemnation of
such the thing shall be the same as that provided by law for
the confiscation or, condemnation, or forfeiture of
automobiles, conveyances , or vehicles in which alcoholic
beverages are illegally transported."
Section 3. An individual who commits any of the
following crimes is civilly liable to the individual depicted
in the relevant image:
(1) Distributing a private image, pursuant to Section
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(1) Distributing a private image, pursuant to Section
13A-6-240, Code of Alabama 1975.
(2) Dissemination, distribution, or public display of
child sexual abuse material, pursuant to Section 13A-12-191,
Code of Alabama 1975.
(3) Possession of child sexual abuse material, pursuant
to Section 13A-12-192, Code of Alabama 1975.
(4) Possession with intent to distribute child sexual
abuse material, pursuant to Section 13A-12-192, Code of
Alabama 1975.
(5) Permitting or allowing a child, ward, or dependent
to engage in production of child sexual abuse material as a
parent or guardian, pursuant to Section 13A-12-196, Code of
Alabama 1975.
(6) Production of child sexual abuse material, pursuant
to Section 13A-12-197, Code of Alabama 1975.
(7) Advertising, promoting, presenting, or soliciting
child sexual abuse material, pursuant to Section 13A-12-191,
Code of Alabama 1975.
Section 4. Civil liability pursuant to Section 2 shall
consist of all of the following:
(1) The full actual damages incurred.
(2) Court costs and reasonable attorney fees.
(3)a. Punitive damages, if the plaintiff proves by
clear and convincing evidence that the defendant consciously
or deliberately engaged in wantonness or malice with regard to
the plaintiff, as defined in Section 6-11-20, Code of Alabama
1975.
b. Punitive damages awarded pursuant to paragraph a.
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b. Punitive damages awarded pursuant to paragraph a.
shall consist of up to twenty-five thousand dollars ($25,000)
per image.
Section 5. The State Board of Education shall require
each local board of education to do all of the following
before the start of the 2024-2025 school year:
(1) Develop a written policy on student discipline and
education related to the distribution of private images as
defined in Section 13A-6-240, Code of Alabama 1975, and the
distribution, dissemination, public display, advertising,
promoting, presenting, soliciting, possession, possession with
intent to distribute, and production of child sexual abuse
material as defined in Division 4 of Article 4 of Chapter 12
of Title 13A, Code of Alabama 1975.
(2) Include within the written policy a prohibition of
private, explicit, or pornographic images generated with
artificial intelligence.
(3) Broadly disseminate the policy following its
adoption.
(4) Distribute copies of the policy to all teachers,
staff, parents, and students.
Section 6. Section 13A-12-195, Code of Alabama 1975,
relating to the commercial exploitation of obscene material,
is repealed.
Section 7. Although this bill would have as its purpose
or effect the requirement of a new or increased expenditure of
local funds, the bill is excluded from further requirements
and application under Section 111.05 of the Constitution of
Alabama of 2022, because the bill defines a new crime or
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Alabama of 2022, because the bill defines a new crime or
amends the definition of an existing crime.
Section 8. This act shall become effective on October
1, 2024.
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