The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Criminal Justice
BILL: CS/SB 1180
INTRODUCER: Criminal Justice Committee and Senator Gaetz
SUBJECT: Sexual Images
DATE: March 26, 2025
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Parker Stokes CJ Fav/CS
2. ACJ
3. FP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1180 provides guidance on proving actual or lewd exhibition and prohibits generation or
possession of certain images.
The bill amends s. 827.071, F.S., to define the terms “anus,” and “male genitals.”
The bill expands the definition of the term “sexual conduct” to include the actual or simulated
lewd exhibition of the anus; masturbation by a person in the presence of a child or ejaculation on
any part of a child’s body or clothing.
The bill provides that the term “actual or simulated lewd exhibition of the genitals or anus” may
be evidenced by the overall content of an image, taking into account the age of the minor
depicted and including, but not limited to, whether:
• The focal point of the image is on the minor’s genitalia or anus;
• The setting of the image is sexually suggestive or in a place or in a place or pose generally
associated with sexual conduct;
• The minor is depicted in an unnatural pose, or in inappropriate attire, considering the age of
the minor;
• The image suggests sexual coyness or a willingness to engage in sexual conduct; or
• The image is intended or designed to elicit a sexual response in the viewer.
REVISED: BILL: CS/SB 1180 Page 2
Altered sexual depiction
The bill amends s. 836.13, F.S., to define the term “Generate,” and “Possess.”
A person who willfully and maliciously generates any altered sexual depiction of an identifiable
person, without the consent of the identifiable person, and who knows or reasonably should have
known that such visual depiction was an altered sexual depiction commits a third degree felony.
A person who willfully and maliciously possesses any altered sexual depiction of an identifiable
person, without the consent of the identifiable person, and who knows or reasonably should have
known that such visual depiction was an altered sexual depiction commits a third degree felony.
The bill authorizes a person who is portrayed in an altered sexual depiction without his or her
consent to initiate a civil cause of action against a person who willfully generates such an altered
sexual depiction to obtain appropriate relief to prevent or remedy the generation of such a
depiction, including:
• Injunctive relief.
• Monetary damages to include $10,000 or actual damages incurred.
• Reasonable attorney fees and costs.
The bill amends s. 921.0022, F.S., to rank the following offenses:
• Generating an altered sexual depiction of an identifiable person without consent as a Level 3
on the Offense Severity Ranking Chart (OSRC).
• Possessing an altered sexual depiction of an identifiable person without consent as a Level 3
on the OSRC.
The bill may have a positive indeterminate fiscal impact (unquantifiable increase in prison and
jail beds) on the Department of Corrections and local jails. See Section V. Fiscal Impact
Statement.
The bill takes effect October 1, 2025.
II. Present Situation:
Altered Sexual Depictions
Nonconsensual altered sexual depictions are distinguishable from consensual pornography as the
person being depicted has not given his or her consent and did not actually engage in the sexual
behavior he or she is depicted as doing. Such depictions may exploit the depicted person for
other’s gratification and may cause emotional and reputational harm stemming from subsequent
uses of the depiction and society’s response to the person depicted.
1
1
Mathew B. Kugler and Carly Pace, Deepfake Privacy: Attitudes and Regulation, Northwestern University Law Review,
2021 Vol 116:611, p. 624-25,
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1476&context=nulr (last visited March 19,
2025). BILL: CS/SB 1180 Page 3
Section 836.13, F.S., defines “Altered sexual depiction” to mean any visual depiction that, as a
result of any type of digital, electronic, mechanical, or other modification, alteration, or
adaptation, depicts a realistic version of an identifiable person:
2
• With the nude body parts of another person as the nude body parts of the identifiable person;
• With computer-generated nude body parts as the nude body parts of the identifiable person;
or
• Engaging in sexual conduct as defined in s. 847.001, F.S.,
3
in which the identifiable person
did not engage.
A person who willfully and maliciously promotes any altered sexual depiction of an identifiable
person, without the consent of the identifiable person, and who knows or reasonably should have
known that such visual depiction was an altered sexual depiction, commits a third degree felony.
4
The presence of a disclaimer within an altered sexual depiction which notifies a viewer that the
person or persons depicted did not consent to or participate in the creation or promotion of the
material, or that the person or persons depicted did not actually perform the actions portrayed, is
not a defense and does not relieve a person of criminal liability under this section.
5
A person who is portrayed in such an altered sexual depiction without his or her consent may
initiate a civil cause of action against a person who willfully and maliciously promoted such
depiction and may obtain appropriate relief to prevent or remedy the promotion, including:
• Injunctive relief.
• Monetary damages to include $10,000 or actual damages incurred.
• Reasonable attorney fees and costs.
6
Child Pornography
The law prohibits any person to knowingly produce, distribute, receive, or possess with intent to
transfer or distribute material that appears to depict minors engaged in sexually explicit conduct
and is deemed obscene.
7
Miller v. California established the test for determining obscenity, now known as the Miller
8
test, which outlines three criteria for material to be considered obscene. The three-prong test
requires the trier of fact to consider the following factors to determine if something is obscene:
2
Section 836.13(1)(b), F.S., defines “Identifiable person” to mean a person who is recognizable as an actual person by the
person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark, or other recognizable feature.
3
Section 847.001(19), F.S., defines “Sexual conduct” to mean actual or simulated sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual or simulated lewd exhibition of the genitals;
actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female,
breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual
battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under
any circumstance constitute “sexual conduct.”
4
A third degree felony is punishable by a term of imprisonment up to 5 years and a $5,000 fine as provided in ss. 775.082,
775.083, and 775.084, F.S.
5
Section 836.13(4), F.S.
6
Section 836.13(5), F.S.
7
18 U.S.C.A. s. 1466A. (2003).
8
Miller v. California, 413 U.S. 15, 24 (1973). BILL: CS/SB 1180 Page 4
• Whether “the average person, applying contemporary community standards” would find that
the work, taken as a whole, appeals to the prurient interest;
• Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and
• Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.
9
The test for determining whether matter involving minors is obscene is a slightly lower threshold
than the Miller test. Material involving minors can be considered obscene if:
• It depicts an image that is, or appears to be a minor engaged in graphic bestiality, sadistic or
masochistic abuse, or sexual intercourse; and
• The image lacks serious literary, artistic, political, or scientific value.
10
The Court tends to grant greater protections to minors, routinely upholding state statutes that
penalize those who possess or disseminate obscene material relating to minors. In New York v.
Ferber, the defendant was convicted for distributing material that depicted a sexual performance
by a minor under the age of 16 in violation of a state law that prohibited persons from knowingly
promoting material that depicted such a performance.
11
In Ferber, the Court held that the statute
at issue did not violate the First Amendment, explaining that the states have a compelling
interest, and thus are granted more leeway, in regulating pornographic depictions of children.
12
The Court reasoned that such material bears so heavily on the welfare of children engaged in its
production that a balance of compelling interests are struck and, therefore, these materials are not
afforded the protections of the First Amendment.
13
Present law defines child pornography to mean:
• Any image depicting a minor engaged in sexual conduct; or
• Any image that has been created, altered, adapted, or modified by electronic, mechanical, or
other means, to portray an identifiable minor engaged in sexual conduct.
14
Sexual performance means, a person is guilty of the use of a child in a sexual performance if,
knowing the character and content thereof, he or she employs, authorizes, or induces a child to
engage in a sexual performance or, being a parent, legal guardian, or custodian of such child,
consents to the participation by such child in a sexual performance. A person who violates this
offense commits a second degree felony.
15,16
9
Id.
10
Id.
11
New York v. Ferber, 458 U.S. 747 (1982).
12
Ferber, 458 U.S. at 756.
13
Id. at 747-48.
14
Section 827.071(1)(b), F.S.
15
Section 827.071(2), F.S.
16
A second degree felony is punishable by a term of imprisonment not exceeding 15 years and a fine up to $10,000, as
provided in ss. 775.082, 775.083, and 775.084, F.S. BILL: CS/SB 1180 Page 5
A person is guilty of promoting a sexual performance by a child when, knowing the character
and content thereof, he or she produces, directs, or promotes any performance which includes
sexual conduct by a child.
17
A person who violates this offense commits a second degree felony.
It is unlawful for any person to possess with the intent to promote
18
any photograph, motion
picture, exhibition, show, representation, or other presentation which, in whole or in part,
includes child pornography. The possession of three or more copies of such photograph, motion
picture, representation, or presentation is prima facie evidence of an intent to promote. A person
who violates this offense commits a second degree felony.
This provision does not apply to any material possessed, controlled, or intentionally viewed as
part of a law enforcement investigation.
Courts have determined what criteria may be used in determining what is lewd exhibition of the
genitals. In State v. Hubbs,
19
the critical issue for the court to determine was whether the state
proved the defendant knew photographs taken of a 14 year old girl included “actual lewd
exhibition of the genitals” by a child and were “lewd” in nature. To prove an “actual lewd
exhibition of the genitals” by a child, the State will be required to prove the defendant knew the
photographs of the child were “lewd” in nature.
20
The Second District has specifically held that
“the lewdness requirement may be satisfied by the intent of the person promoting the
performance which included sexual conduct by the child.”
21
The Brabson court also noted that
lewdness may be evaluated based on the test in United States v. Dost. The court held that a trier
of fact should consider the Dost factors in making a determination whether he exhibition of the
child's genitals in the photographs was lewd in nature.
22
In U.S. v. Dost,
23
the court opined that a determination of whether there was lascivious exhibition
should be made on a case-by-case basis using general principles as a guide for analysis.
The court held that a trier of fact should look at the following factors, among any others that may
be relevant in a particular case, when determining whether a visual depiction of a minor
constitutes lascivious exhibition of the genitals or pubic area:
• Whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
• Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose
generally associated with sexual activity;
• Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the
age of the child;
• Whether the child is fully or partially clothed or nude;
17
Section 827.071(3), F.S.
18
Section 836.13(4), F.S., defines “Promote” to mean to issue, sell, give, provide, lend, mail, deliver, transfer, transmit,
transmute, publish, distribute, circulate, disseminate, present, exhibit, send, post, share, or advertise or to offer or agree to do
the same.
19
State v. Hubbs, 377 So.3d 1162 (Fla. 4
th
DCA 2023).
20
Section § 827.071(1)(h), (5)(a), Fla. Stat. (2019).
21
State v. Brabson, 7 So.3d 1119, 1122 (Fla. 2d DCA 2008).
22
Hubbs, at 1168.
23
U.S. v. Dost, 636 F. Supp. 828 (S.D. California 1986). BILL: CS/SB 1180 Page 6
• Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual
activity;
• Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
The court asserted that a visual depiction need not involve all of the above-listed factors to
constitute lascivious exhibition of the genitals or pubic area, but rather that, a determination
should be made based on the overall content of the visual depiction, taking into account the age
of the minor.
24
Offense Severity Ranking Chart
Felony offenses which are subject to the Criminal Punishment Code
25
are listed in a single
OSRC, which uses 10 offense levels to rank felonies from least severe to most severe. Each
felony offense listed in the OSRC is assigned a level according to the severity of the offense.
26,27
A person’s primary offense, any other current offenses, and prior convictions are scored using
the points designated for the offense severity level of each offense. The final score calculation,
following the scoresheet formula, determines the lowest permissible sentence that a trial court
may impose, absent a valid reason for departure.
28
III. Effect of Proposed Changes:
The bill amends s. 827.071, F.S., to define:
• “Anus” to mean the end of the gastrointestinal tract and the opening of the rectum to the
outside of the body.
• “Male genitals” to include the penis and the scrotum.
• “Sexual conduct” to mean actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, or sadomasochistic abuse; actual or simulated lewd exhibition
of the genitals or anus; actual physical contact with a person’s clothed or unclothed genitals,
pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify
the sexual desire of either party; or any act or conduct which constitutes sexual battery or
simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her
baby does not under any circumstance constitute “sexual conduct.” The term includes
masturbation by a person in the presence of a child or ejaculation on any part of a child’s
body or clothing.
The bill provides that the term “actual or simulated lewd exhibition of the genitals or anus” may
be evidenced by the overall content of an image, taking into account the age of the minor
depicted and including, but not limited to, whether:
24
Dost, 636 F. Supp. At 832.
25
All felony offenses, with the exception of capital felonies, committed on or after October 1, 1998, are subject to the
Criminal Punishment Code.
26
Section 921.0022, F.S.
27
Section 921.0022(2), F.S.
28
Section 921.0024(2), F.S., provides that if a person scores more than 44 points, the lowest permissible sentence is a
specified term of months in state prison, determined by a formula. If a person scores 44 points or fewer, the court may
impose a nonprison sanction, such as a county jail sentence, probation, or community control. BILL: CS/SB 1180 Page 7
• The focal point of the image is on the minor’s genitals or anus;
• The setting of the image is sexually suggestive or in a place or pose generally associated with
sexual conduct;
• The minor is depicted in an unnatural pose, or in inappropriate attire, considering the age of
the minor;
• The image suggests sexual coyness or a willingness to engage in sexual conduct; or
• The image is intended or designed to elicit a sexual response in the viewer.
Altered sexual depiction
The bill amends s. 836.13, F.S., to define the terms:
• “Generate” to mean to create, alter, adapt, or modify any image by electronic, mechanical, or
other computer-generated means to portray an identifiable person or to offer or agree to do
the same.
• “Possess” to mean to knowingly or intentionally keep control, maintain, store, or own,
physically or electronically, any altered sexual depiction of an identifiable person without the
consent of the identifiable person.
A person who willfully and maliciously generates any altered sexual depiction of an identifiable
person without the consent of the identifiable person, and who knows or reasonably should have
known that such visual depiction was an altered sexual depiction commits a third degree felony.
A person who willfully and maliciously possesses any altered sexual depiction of an identifiable
person without the consent of the identifiable person, and who knows or reasonably should have
known that such visual depiction was an altered sexual depiction commits a third degree felony.
The bill provides that an act done for a bona fide medical, literary, academic, or scientific
purpose is not a violation of this offense.
The bill authorizes a person who is portrayed in an altered sexual depiction without his or her
consent to initiate a civil cause of action against a person who willfully generates such an altered
sexual depiction to obtain appropriate relief to prevent or remedy the generation of such a
depiction, including:
• Injunctive relief.
• Monetary damages to include $10,000 or actual damages incurred.
• Reasonable attorney fees and costs.
The bill amends s. 921.0022, F.S., to rank the following offenses:
• Generating an altered sexual depiction of an identifiable person without consent is ranked a
Level 3 on the OSRC.
• Possessing an altered sexual depiction of an identifiable person without consent is ranked a
Level 3 on the OSRC.
The bill takes effect October 1, 2025. BILL: CS/SB 1180 Page 8
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not appear to require cities and counties to expend funds or limit their
authority to raise revenue or receive state-shared revenues as specified by Article VII, s.
18, of the State Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None. The First Amendment of the U.S. Constitution states that, “Congress shall make no
law … abridging the freedom of speech…” This language prohibits the government from
having the ability to constrain the speech of citizens. However, materials that constitute
child pornography, obscenity, or material harmful to minors may be restricted. Child
pornography, obscenity, and material harmful to minors have been defined in ch. 847,
F.S., and are consistent with federal law and the United States Supreme Court holdings
regarding such laws. The bill makes the simple creation or possession of an altered sexual
depiction a crime. This may be subject to challenges under the First Amendment.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Criminal Justice Impact Conference, which provides the final, official estimate of the
prison bed impact, if any, of legislation, has not yet reviewed the bill. The bill expands
materials that constitute child pornography, obscenity, and materials harmful to minors.
The bill may have a positive indeterminate prison bed impact (unquantifiable increase
prison bed impact) on the Department of Corrections. BILL: CS/SB 1180 Page 9
VI. Technical Deficiencies:
None.
VII. Related Issues:
This bill could potentially criminalize a parent for possessing a nude photo of their child taken
without a prurient intent or prurient curiosity.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 827.071, 836.13,
921.0022.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Criminal Justice on March 25, 2025:
The committee substitute:
• Removes language expanding the definition of “child pornography.”
• Provides definitions for “anus,” “male genitals,” “generate,” and “possess.”
• Revises the term “sexual conduct” to include masturbation by a person in the
presence of a child or ejaculation on any part of a child’s body or clothing.
• Provides criminal penalties for willfully and maliciously generating or possessing any
altered sexual depiction with the consent of an identifiable person. Each violation is a
separate offense that is a third degree felony, ranked a Level 3 in the OSRC.
• Provides an exception for medical, literary, academic or scientific purposes, for
crimes related to Altered Sexual Depiction.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.