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SENATE FLOOR VERSION
April 2, 2024
ENGROSSED HOUSE
BILL NO. 3642 By: Hasenbeck, Dollens, and
Stark of the House
and
Treat of the Senate
An Act relating to crimes and punishments; amending
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 certain
unlawful act; updating certain defined terms;
defining terms; 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, is
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) year s in
any child pornography or obscene material or who knowingly
possesses, views, accesses, shares, streams, downloads, procures,
sells, distributes, or manufactures, or causes to be possessed,
viewed, accessed, shared, streamed, downloaded, procured, sold or,
distributed, or manufactured any child pornography shall be guilty,
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upon conviction, be guilty of a felony and shall be punished by
imprisonment in the custody of the Department of Corrections for not
more than twenty (20) years or and by the imposition of a fine of
not 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 persons
sentenced to life or life without parole , any person sentenced 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 Department 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 minor, or of the mother, father, legal
guardian, or custodian of the minor to the activity 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. A s used in Sections 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 including, but not limited to, film,
motion picture, videotape, photograph, negative, undeveloped film,
slide, photographic product, reproduction of a photographic product,
play or performance wherein 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 o f sadomasochistic abuse including, bu t 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 an y lewd exhibition
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 vie wer, or wherein a person
under the age of eighteen (18) years observes such acts or
exhibitions. Each visual depiction or individual image shall
constitute a separate item and multiple copies of the same identical
material shall each be counted as a separ ate 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 sexually explicit conduct; or
3. Any visual depiction that appears to be a child, regardless
of whether the image is a depiction of an actual child, a computer -
generated image, or an image altered 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 separate 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 photographs, 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 eleme nts
material when taken as a whole :
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a. depictions or descriptions 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 explicit
conduct in a patently 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 apply
to child pornography;
2. 3. "Performance" means and includes any display, live or,
recorded, or transmitted, in any form or medium;
3. 4. "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 ,
b. acts of deviate sexual conduct, including oral and
anal sodomy,
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c. acts of masturbation,
d. acts of sexual activity with an animal,
e. acts of sadomasochistic abuse sadomasochism 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 nature, or
(2) the condition of being fettered, bo und, or
otherwise physically restrain ed 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 the sexual stimulation
of the viewer; and
4. 5. "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 conduct described in paragraph 3 of this
subsection are intended to include situations when, if appropriate
to the type of conduct, the conduct is performed alone or between
members of the same or opposite sex or between humans and animals in
an act of apparent sexual stimulation or gratification ; and
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6. "Visual depiction" means any depicti on, picture, movie,
performance, or image displayed, stored, shared, or transmitted in
any format and on any medium including data that is capable of being
converted into a depiction, picture, movie, performance, or ima ge.
SECTION 3. AMENDATORY 21 O.S. 2021, Section 1040.12a, is
amended to read as follows:
Section 1040.12a A. Any person who, with knowledge of its
contents, possesses one hundred (100) or more separate materials
depicting visual depictions of child pornography shal l 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 exceeding 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 Offenders Registration Act.
B. For purposes of this section:
1. Multiple copies of the same identical material shall e ach 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 and, in
addition, includes all digital and computerized images and
depictions; and
3. 2. The term terms "child pornography" means and "visual
depictions" mean the same definition definitions provided by Section
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1040.80 1024.1 of Title 21 of the Oklahoma Statutes and, in
addition, includes sexual conduct, sexual excitement,
sadomasochistic abuse, and performan ce 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 effec tive November 1, 2024.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY
April 2, 2024 - DO PASS