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STATE OF OKLAHOMA
2nd Session of the 59th Legislature (2024)
HOUSE BILL 3865 By: Fugate
AS INTRODUCED
An Act relating to crimes and punishments; amending
21 O.S. 1021, Sections 1021, 1024.1 and 1040.75,
which relate to the Oklahoma Law on Obscenity and
Child Pornography; expanding scope of crime to
include materials and pornography generated via
artificial intelligence; modifying certain terms to
include artificial intelligence (AI)-generated
images; defining term; 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, is
amended to read as follows:
Section 1021. A. Every person who willfully and knowingly
either:
1. Lewdly exposes his or her person or genitals in any public
place, or in any plac e where there are present other persons to be
offended or annoyed thereby ; provided, however, for purposes of this
section, a person alleged to have committed an act o f public
urination shall be prosecuted pursuant to Section 22 of this title
unless such act was accompanied with another act that violates
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paragraphs 2 through 4 of this subsection and shall not be subject
to registration under the Sex Offenders Registrati on Act;
2. Procures, counsels, or assists any person to expose such
person, or to make a ny other exhibition of such person to public
view or to the view of any number of persons, for the purpose of
sexual stimulation of the viewer;
3. Writes, composes, s tereotypes, prints, photographs, designs,
generates by artificial intelligence (AI), copies, draws, engraves,
paints, molds, cuts, o r otherwise prepares, publishes, sells,
distributes, keeps for sale, knowingly downloads on a computer, or
exhibits any obscene material or child pornography; or
4. Makes, prepares, cuts, sells, gives, loans, distributes,
keeps for sale, or exhibits any d isc record, metal, plastic, or wax,
wire or tape recording, or any type of obscene material or child
pornography,
shall be guilty, upon conviction, of a felony and shall be punished
by the imposition of a fine of not less than Five Hundred Dollars
($500.00) nor more than Twenty Thousand Dollars ($20,000.00) or by
imprisonment for not less than thirty (30) days nor more than ten
(10) years, or by both such fine and imprisonment.
B. Every person who:
1. Willfully solicits or aids a minor child to perform; o r
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2. Shows, exhibits, loans, or distributes to a minor child any
obscene material or child pornography for the purpose of i nducing
said minor to participate in,
any act specified in paragraphs 1, 2, 3 or 4 of subsection A of this
section shall be guilty o f a felony, upon conviction, and shall be
punished by imprisonment in the custody of the Department of
Corrections for not l ess than ten (10) years nor more than thirty
(30) years, except when the minor child is under twelve (12) years
of age at the time t he offense is committed, and in such case the
person shall, upon conviction, be punished by imprisonment in the
custody of the Department of Corrections for not less than twenty -
five (25) years.
C. Persons convicted under this section shall not be eligibl e
for a deferred sentence.
D. Except for persons sentenced to life or life without parole,
any person sentenced to imprison ment for two (2) years or more for a
violation of this section shall be required to serve a term of post -
imprisonment supervision pu rsuant 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.
E. For purposes of this section , "downloading on a computer ":
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1. "Downloading on a computer" means electronically
transferring an electronic file from one computer or electronic
media to another computer or electronic media ; and
2. "Generates by artificial intelligence (AI)" means AI-
generating technology that can produce various types of content
including text, images, videos, audio clips or synthetic data.
SECTION 2. AMENDATORY 21 O.S. 2021, Section 1024.1, is
amended to read as follows:
Section 1024.1 A. As used in Sections 1021, 1021.1 through
1021.4, Sections 1022 through 1024 and 1023, and Sections 1040.8
through 1040.24 of this title, "child pornography" means and
includes 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, reprodu ction of a photographic
product, artificial intelligence (AI)-generated image, play or
performance wherein a minor under the age of eighteen (18) years is
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 includi ng, but not limited to, flag ellation 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
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of sexual conduct, in any lewd exhibition of t he uncovered genitals
in the context of masturbation or other sexual conduct, or where the
lewd exhibition of the uncovered genita ls, buttocks or, if such
minor is a female, the breast, has the purpose of sexual stimulation
of the viewer, or wherein a pers on under the age of eighteen (18)
years observes such acts or exhibitions. Each visual depiction or
individual image shall consti tute a separate item and multiple
copies of the same identical material shall each be counted as a
separate item.
B. As used in Sections 1021 through 1024.4 and Sections 1040.8
through 1040.24 of this title:
1. "Obscene material" means and includes any r epresentation,
performance, depiction or description of sexual conduct, whether in
any form or on any medium including still p hotographs, undeveloped
photographs, motion picture s, undeveloped film, videotape, AI-
generated image, optical, magnetic or solid -state storage, CD or
DVD, or a purely photographic product or a reproduction of such
product in any book, pamphlet, ma gazine, or other publication or
electronic or photo-optical format, if said items contain the
following elements:
a. depictions or descrip tions of sexual conduct which are
patently offensive as found by the average person
applying contemporary community st andards,
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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, and
c. a reasonable person would find the material or
performance taken as a whole lack s 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. "Performance" means and includes any display, live or
recorded, in any form or medium;
3. "Sexual conduct" means and includes any of the following:
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,
c. acts of masturbation,
d. 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 nature, or
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(2) the condition of being fettered, bo und, or
otherwise physically restrained on the part of
one who is nude or so clothed,
e. acts of excretion in a sexual context, or
f. acts of exhibiting human genitals or pubic areas; and
4. "Explicit child pornography " means material which a law
enforcement officer can immediately identify upon first viewing
without hesitation as child pornography ; and
5. "Artificial intelligence (AI)-generated image" means an image
created through the use of AI programs.
The types of sexual conduct described in paragraph 3 of th is
subsection are intended to include situations when, if appropriate
to the type of conduct, the con duct is performed alone or be tween
members of the same or opposite sex or between humans and animals in
an act of apparent sexual stimulation or gratificat ion.
SECTION 3. AMENDATORY 21 O.S. 2021, Section 1040.75, is
amended to read as follows:
Section 1040.75 As used in Sections 1040.75 through 1040.77 of
this title:
1. "Minor" means any unmarried person under the age of eighteen
(18) years;
2. "Harmful to minors" means:
a. that quality of any description, exhibition,
presentation or representation, in whatever form, of
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nudity, sexual conduct, sexual excitement, or
sadomasochistic abuse when the material or
performance, taken as a whole, has the following
characteristics:
(1) the average person eighteen (18) years of age or
older applying contemporary community standards
would find that the material or performance has a
predominant tendency to appeal to a prurient
interest in sex to minors, and
(2) the average person eighteen (18) yea rs of age or
older applying contemporary community standards
would find that the material or performance
depicts or describes nudity, sexual conduct,
sexual excitement or sadomasochistic abuse in a
manner that is patently offensive to prevailing
standards in the adult community with respect to
what is suitable for minors, and
(3) the material or performance lacks serious
literary, scientific, medical, artistic, or
political value for minors , or
b. any description, exhibition, presentation or
representation, in whatever form, of inappropriate
violence;
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3. "Inappropriate violence " means any description or
representation, in an interactive video game or computer software,
of violence which, taken as a whole , has the following
characteristics:
a. the average person eighteen (18) years of age or older
applying contemporary community standards would find
that the interactive video game or computer software
is patently offensive to prevailing standards in the
adult community with respect to what is suitable for
minors, and
b. the interactive video game or computer software lacks
serious literary, scientific, medical, artistic, or
political value for minors based on, but not limited
to, the following criteria:
(1) is glamorized or gratuitous,
(2) is graphic violence used to shock or stimulate,
(3) is graphic violence that is not contextually
relevant to the material,
(4) is so pervasive that it serves as the thread
holding the plot of the material together,
(5) trivializes the serious nature of realistic
violence,
(6) does not demonstrate the consequences or effects
of realistic violence,
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(7) uses brutal weapons designed to inflict the
maximum amount of pain and damage,
(8) endorses or glorifies torture or excessive
weaponry, or
(9) depicts lead characters who resort t o violence
freely;
4. "Nudity" means the:
a. showing of the human male or female genitals, pubic
area, or buttocks with less than a full opaque
covering,
b. showing of the female breast with less than a full
opaque covering of any portion of the female b reast
below the top of the nipple, or
c. depiction of covered male genitals in a discernibly
turgid state;
5. "Sexual conduct" means acts of masturbation, homosexuality,
sexual intercourse, or physical contact with a person's clothed or
unclothed genitals, pubic area, buttocks, or, if such person be a
female, breast;
6. "Sexual excitement" means the condition of human male or
female genitals when in a state of sexual stimulation or arousal;
7. "Sadomasochistic abuse" means flagellation or torture by or
upon a person clothed or naked or the condition of being fettered,
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bound or otherwise physically restrained on the part of one so
clothed or naked;
8. "Material" means any book, magazine, newspaper, pamp hlet,
poster, print, picture, figure, image, artificial intelligence (AI)-
generated image, description, motion picture film, record, recording
tape, CD-ROM disk, Magnetic Disk Memory, Magnetic Tape Memory, video
tape, computer software or video game;
9. "CD-ROM" means a compact disk with read only memory wh ich
has the capacity to store audio, video and written materials and may
be used by computer to play or display materials harmful to minors;
10. "Magnetic Disk Memory " means a memory system that stores
and retrieves binary data on record-like metal or plastic disks
coated with a magnetic material, including but not limited to floppy
diskettes;
11. "Magnetic Tape Memory " means a memory system that stores
and retrieves binary data on magnetic recording ta pe;
12. "Performance" means any motion picture, film , video tape,
played record, phonograph or tape, preview, trailer, play, show,
skit, dance, or other exhibition performed or presented to or before
an audience of one or more, with or without considerati on;
13. "Knowingly" means having general knowledge o f, or reason to
know, or a belief or ground for belief which warrants further
inspection or inquiry of both:
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a. the character and content of any material or
performance which is reasonably susceptible of
examination by the defendant, and
b. the age of the minor. However, an honest mistake,
shall constitute an excuse from liability pursuant to
this act if the defendant made a reasonable bona fide
attempt to ascertain the true age of such minor;
14. "Person" means any individual, partnership, association,
corporation, or other legal entity of any kind; and
15. "A reasonable bona fide attempt " means an attempt to
ascertain the true age of the minor by requiring production of a
driver license, marriage lice nse, birth certificate or other
governmental or educa tional identification card or paper and not
relying solely on the oral allegations or apparent a ge of the minor;
and
16. "Artificial intelligence (AI)-generated image" means an
image created through the use of AI programs.
SECTION 4. This act shall become effective November 1, 2024.
59-2-9591 GRS 12/29/23