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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
2nd Session of the 59th Legislature (2024)
COMMITTEE SUBSTITUTE
FOR
HOUSE BILL NO. 3642 By: Hasenbeck and Dollens
COMMITTEE SUBSTITUTE
An Act relating to crimes and punishments; a mending
21 O.S. 2021, Sections 1021.2, 1024.1 and 1040.12a,
which relate to the Oklahoma Law on Obscenity and
Child Pornography; modifying scope of c ertain
unlawful act; updating certain defined terms; adding
definitions; updating statutory references; and
providing an effective date .
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 21 O.S. 2021, Section 1021.2, i s
amended to read as follows:
Section 1021.2 A. Any person who shall procure or cause the
participation of any minor under the age of eighteen (18) years in
any child pornography or obscene material or who knowingly
possesses, views, accesses, shares, s treams, procures, or
manufactures, or causes to be possessed, viewed, accessed, sh ared,
streamed, sold or distributed, any child pornography or obscene
material shall be guilty, upon conviction, be guilty of a felony and
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shall be punished by imprisonment in the custody of the Department
of Corrections for not more than twenty (20) years , or by the
imposition of a fine of n ot more than Twenty-five Thousand Dollars
($25,000.00), or by both said fine and imprisonment. Persons
convicted under this section shall not be eligible for a deferred
sentence. Except for pers ons sentenced to life o r life without
parole, any person sen tenced to imprisonment for two (2) years or
more for a violation of this subsection shall be required to serve a
term of post-imprisonment supervision pursuant to subparagraph f of
paragraph 1 of subsection A of Section 991a of Title 22 of the
Oklahoma Statutes under conditions determined by the De partment of
Corrections. The jury shall be advised that the mandatory post -
imprisonment supervision shall be in addition to the actual
imprisonment.
B. The consent of the min or, or of the mother, father, legal
guardian, or custodian of the minor to the a ctivity prohibited by
this section shall not constitute a defense.
SECTION 2. AMENDATORY 21 O.S. 2021, Section 1024.1, is
amended to read as follows:
Section 1024.1 A. As used in Sectio ns 1021, 1021.1 through
1021.4, Sections 1022 through 1024, 1023, and Sections 1040.8
through 1040.24 of this title, "child pornography" means and
includes any:
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1. Any visual depiction or individual image stored or contained
in any format on any medium in cluding, but not limited to, film,
motion picture, videota pe, photograph, negative, undeveloped film,
slide, photographic product, reprodu ction of a photographic product,
play or performance where in a minor under the age of eighteen (18)
years is of a child engaged in any act with a person, other than his
or her spouse, of sexual intercourse which is normal or perverted,
in any act of anal sodomy, in any act of sexual activity with an
animal, in any act of sadomasochistic abuse including, but not
limited to, flagellation or torture, or the condition of being
fettered, bound or otherwise physically restrained in the context of
sexual conduct, in any act of fellatio or cunnilingus, in any act of
excretion in the context of sexual conduct, in any lewd exhibitio n
of the uncovered genitals in the context of masturbation or other
sexual conduct, or where the lewd exhibition of the uncovered
genitals, buttocks or, if such minor is a female, the breast, has
the purpose of sexual stimulation of the viewer, or wherein a person
under the age of eighteen (18) years observes suc h acts or
exhibitions. Each visual depiction or individual image shall
constitute a separate item and multiple copies of the same identic al
material shall each be counted as a separate item of sexually
explicit conduct;
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2. Any visual depiction of a child that has been adapted,
altered, or modified so that the child depicted appears to be
engaged in any act of sexu ally explicit conduct; or
3. Any visual depiction that appears to be a child, regardl ess
of whether the image is a depiction of an actual c hild, a computer-
generated image, or an image alter ed to appear to be a child,
engaged in any act of sexually explicit conduct, and such visual
depiction is obscene.
B. Each visual depiction or individual image of child
pornography shall constitute a s eparate item and act.
C. As used in Sections 1021 through 1024.4 and Sections 1040.8
through 1040.24 of this title:
1. "Obscene material" "Child" means a person under eighteen
(18) years of age;
2. "Obscene" means and includes any representation,
performance, or depiction or description of sexual conduct , whether
in any form or on any medium including still photographs,
undeveloped photograp hs, motion pictures, undeveloped film,
videotape, optical, magnetic or solid-state storage, CD or DVD, or a
purely photographic product or a reproduction of such product in any
book, pamphlet, magazine, or other publication or electronic or
photo-optical format, if said items contain the following elements
material when taken as a whole:
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a. depictions or descriptio ns of sexual conduct which are
patently offensive appeals to the prurient interest in
sex as found determined by the average person applying
the contemporary community standards of their
community,
b. taken as a whole, have as the dominant theme an appeal
to prurient interest in sex as found by the average
person applying contemporary community standards
depicts, represents, or displays sexually ex plicit
conduct in a patentl y offensive way, and
c. a reasonable person would find the material or
performance taken as a whole lacks serious literary,
artistic, educational, political, or scientific
purposes or value.
The standard for obscenity applied in this section shall not appl y
to child pornography as defined by paragraph 1 of subsection A of
this section;
2. "Performance" means and includes any display, live or,
recorded, or transmitted in any form or medium;
3. "Sexual conduct" "Sexually explicit conduct" means and
includes any of the following whether actual or simulated:
a. acts of sexual intercourse including any intercourse
which is normal or perverted, actual or simulated ,
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b. acts of deviate sexual conduct, including oral and
anal sodomy,
c. acts of masturbation,
d. acts of sexual activity with an animal,
e. acts of sadomasochistic abuse including but not
limited to:
(1) flagellation or torture by or upon any person who
is nude or clad in undergarments or in a costume
which is of a revealing n ature, or
(2) the condition of being fettered, bo und, or
otherwise physically restrained on the part of
one who is nude or so clothed,
e. f. acts of excretion in a sexual context, or
f. acts of
g. exhibiting human genitals genitalia, breast, or pubic
areas area for the purpose of th e sexual stimulation
of the viewer; and
4. "Explicit child pornography" means material which a law
enforcement officer can immediately identify upon first viewing
without hesitation as child pornography .
The types of sexual con duct described in paragraph 3 of this
subsection are intended to include situations when, if appropriate
to the type of conduct, the con duct is performed alone or between
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members of the same or o pposite sex or between humans and animals in
an act of apparent sexual stimulation or gra tification; and
5. "Visual depiction" means any depiction, picture, movie,
performance, or image displ ayed, stored, shared, o r transmitted in
any format and on any me dium including data that is capable of being
converted into a depiction, picture, movie, performance, or image.
SECTION 3. AMENDATORY 21 O.S. 2021, Sectio n 1040.12a, is
amended to read as follows:
Section 1040.12a. A. Any person who, wi th knowledge of its
contents, possesses one hundred ( 100) or more separate materi als
depicting child pornography shall be, upon conviction, be guilty of
aggravated possession of child pornography. The violator shall be
punished by imprisonment in the custody of the Department of
Corrections for a term not e xceeding life imprisonment and by a fine
in an amount of not more than Ten Thousand Dollars ($10,000.00).
The violator, upon conviction, shall be required to register as a
sex offender under the Sex Off enders Registration Act.
B. For purposes of this sec tion:
1. Multiple copies of the same identical mat erial shall each be
counted as a separate item;
2. The term "material" means the same definition provided by
Section 1040.75 of Title 21 of the Oklahoma Statutes this title and,
in addition, includes all digital and computerized ima ges and
depictions; and
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3. The term "child pornography" means the same definition
provided by Section 1040.80 1024.1 of Title 21 of the Oklahoma
Statutes and, in addition, in cludes sexual conduct, sexual
excitement, sadomasochi stic abuse, and performance of material
harmful to minors where a minor is present or depicted as such terms
are defined in Section 1040.75 of Title 21 of the Oklahoma Statutes
this title.
SECTION 4. This act shall become effective November 1, 2024.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY - CRIMINAL, dated
02/22/2024 - DO PASS, As Amended and Coauthored.