02-27 07:23 2nd Sub. (Gray) H.B. 207
Todd Weiler proposes the following substitute bill:
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Sexual Offense Revisions
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Stephen L. Whyte
Senate Sponsor: Michael K. McKell
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LONG TITLE
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General Description:
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This bill changes certain sexual offenses and sentencing for sexual offenses.
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Highlighted Provisions:
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This bill:
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▸ amends provisions in the enhancement for repeat and habitual sex offenders;
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▸ provides a definition of a female breast for purposes of certain sexual and sexual
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exploitation offenses that includes a breast that is undeveloped or partially developed;
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▸ expands the definition of "child sexual abuse material" to include a minor observing or
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being used for sexually explicit conduct;
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▸ modifies the definition of "sexual explicit conduct" concerning certain bodily functions;
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▸ modifies the offense of sexual exploitation of a minor to include when an actor creates
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certain links to allow repeated viewing of child sexual abuse material;
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▸ provides a safe harbor provision for certain employees and independent contractors who
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are required to access or view child sexual abuse material within the scope of
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employment; and
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▸ makes technical and conforming changes.
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Money Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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76-3-203.13, as last amended by Laws of Utah 2022, Chapter 181
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76-3-407, as last amended by Laws of Utah 2023, Chapter 457
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76-5-401.1, as last amended by Laws of Utah 2024, Chapter 234
2nd Sub. H.B. 207 2nd Sub. (Gray) H.B. 207 02-27 07:23
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76-5-401.2, as last amended by Laws of Utah 2022, Chapter 181
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76-5-404, as last amended by Laws of Utah 2022, Chapter 181
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76-5-404.1, as last amended by Laws of Utah 2024, Chapters 96, 97
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76-5-412.2, as enacted by Laws of Utah 2022, Chapter 181
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76-5-413.2, as enacted by Laws of Utah 2022, Chapter 181
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76-5b-103, as last amended by Laws of Utah 2024, Chapters 127, 142
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76-5b-201, as last amended by Laws of Utah 2024, Chapter 142
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76-5b-201.1, as last amended by Laws of Utah 2024, Chapter 142
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Be it enacted by the Legislature of the state of Utah:
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Section 1. Section 76-3-203.13 is amended to read:
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76-3-203.13 . Enhanced penalty for unlawful sexual contact with a student.
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(1) A person convicted of a sexual offense described in Section 76-5-401.1 or 76-5-401.2
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may be subject to an enhanced penalty if, at the time of the commission of the sexual
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offense, the actor:
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(a) was 18 years old or older;
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(b) held a position of special trust as a teacher, employee, or volunteer at a school, as
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that position is defined in Subsection [76-5-404.1(1)(a)(iv)(S)] 76-5-404.1(1)(a)(v)(S);
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and
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(c) committed the offense against an individual who at the time of the offense was
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enrolled as a student at the school where the actor was employed or was acting as a
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volunteer.
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(2) The enhancement of a penalty described in Subsection (1) shall be an enhancement of
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one classification higher than the offense of which the person was convicted.
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Section 2. Section 76-3-407 is amended to read:
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76-3-407 . Repeat and habitual sex offenders -- Additional prison term for prior
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felony convictions.
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(1) As used in this section:
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(a) "Prior sexual offense" means:
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(i) a felony offense described in Chapter 5, Part 4, Sexual Offenses;
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[(ii) sexual exploitation of a minor, Section 76-5b-201;]
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[(iii)] (ii) aggravated sexual exploitation of a minor, Section 76-5b-201.1;
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[(iv)] (iii) a felony offense of enticing a minor in which an actual minor was involved
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in the offense, Section 76-4-401;
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[(v)] (iv) a felony attempt to commit an offense described in Subsections (1)(a)(i)
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through [(iv)] (iii); or
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[(vi)] (v) an offense in another state, territory, or district of the United States that, if
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committed in Utah, would constitute an offense described in Subsections (1)(a)(i)
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through [(v)] (iv).
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(b) "Sexual offense" means:
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(i) an offense that is a second or third degree felony[ of the second or third degree],
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or an attempted offense, which attempt is a second or third degree felony[ of the
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second or third degree], described in Chapter 5, Part 4, Sexual Offenses;
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[(ii) sexual exploitation of a minor, Section 76-5b-201;]
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[(iii)] (ii) aggravated sexual exploitation of a minor, Section 76-5b-201.1;
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[(iv)] (iii) a felony offense of enticing a minor in which an actual minor was involved
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in the offense, Section 76-4-401;
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[(v)] (iv) a felony attempt to commit an offense described in Subsections (1)(b)(ii)
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through [(iv)] (iii); or
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[(vi)] (v) an offense in another state, territory, or district of the United States that, if
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committed in Utah, would constitute an offense described in Subsections (1)(b)(i)
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through [(v)] (iv).
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(2) Notwithstanding any other provision of law, the maximum penalty for a sexual offense
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is increased by five years for each conviction of the defendant for a prior sexual offense
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that arose from a separate criminal episode, if the trier of fact finds that:
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(a) the defendant was convicted of a prior sexual offense; and
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(b) the defendant was convicted of the prior sexual offense described in Subsection (2)(a)
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before the defendant [was convicted of] committed the sexual offense for which the
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defendant is being sentenced.
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(3) The increased maximum term described in Subsection (2) shall be in addition to, and
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consecutive to, any other prison term served by the defendant.
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(4)(a) If an offense is enhanced under this section, the court shall:
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(i)(A) sentence the defendant to imprisonment; or
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(B) state on the record findings explaining why the court determined that
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imprisonment was not appropriate under the circumstances of the case; and
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(ii) when determining the defendant's sentence, consider the enhancement as an
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aggravating factor.
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(b) In determining the length of imprisonment for a defendant imprisoned for a
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conviction of an offense that was enhanced under this section, the Board of Pardons
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and Parole shall consider the enhancement as an aggravating factor.
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Section 3. Section 76-5-401.1 is amended to read:
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76-5-401.1 . Sexual abuse of a minor -- Penalties -- Limitations.
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(1)(a) As used in this section:
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(i) "Female breast" means the undeveloped, partially developed, or developed breast
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of a female individual.
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(ii) "Indecent liberties" means:
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(A) the actor touching another individual's genitals, anus, buttocks, pubic area, or
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female breast;
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(B) causing any part of an individual's body to touch the actor's or another's
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genitals, pubic area, anus, buttocks, or female breast;
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(C) simulating or pretending to engage in sexual intercourse with another
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individual, including genital-genital, oral-genital, anal-genital, or oral-anal
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intercourse; or
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(D) causing an individual to simulate or pretend to engage in sexual intercourse
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with the actor or another, including genital-genital, oral-genital, anal-genital, or
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oral-anal intercourse.
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[(ii)] (iii) "Minor" means an individual who is 14 years old or older, but younger than
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16 years old, at the time the sexual activity described in Subsection (2) occurred.
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(b) Terms defined in Section 76-1-101.5 apply to this section.
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(2)(a) Under circumstances not amounting to an offense listed in Subsection (4), an actor
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commits sexual abuse of a minor if the actor:
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(i) is four years or more older than the minor; and
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(ii) with the intent to cause substantial emotional or bodily pain to any individual, or
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with the intent to arouse or gratify the sexual desire of any individual:
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(A) touches the anus, buttocks, pubic area, or any part of the genitals of the minor;
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(B) touches the female breast of a [female ]minor; or
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(C) otherwise takes indecent liberties with the minor.
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(b) Any touching, even if accomplished through clothing, is sufficient to constitute the
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relevant element of a violation of Subsection (2)(a).
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(3) A violation of Subsection (2)(a) is:
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(a) a class A misdemeanor; and
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(b) not subject to registration under Subsection 77-41-102(19)(a)(viii) on a first offense
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if the offender was younger than 21 years old at the time of the offense.
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(4) The offenses referred to in Subsection (2)(a) are:
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(a) unlawful sexual activity with a minor, in violation of Section 76-5-401;
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(b) rape, in violation of Section 76-5-402;
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(c) object rape, in violation of Section 76-5-402.2;
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(d) forcible sodomy, in violation of Section 76-5-403;
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(e) aggravated sexual assault, in violation of Section 76-5-405; or
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(f) an attempt to commit an offense listed in Subsections (4)(a) through (e).
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Section 4. Section 76-5-401.2 is amended to read:
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76-5-401.2 . Unlawful sexual conduct with a 16- or 17-year-old -- Penalties --
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Limitations.
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(1)(a) As used in this section:
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(i) "Female breast" means the same as that term is defined in Section 76-5-401.1.
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(ii) "Indecent liberties" means the same as that term is defined in Section 76-5-401.1.
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[(ii)] (iii) "Minor" means an individual who is 16 years old or older, but younger than
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18 years old, at the time the sexual conduct described in Subsection (2) occurred.
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(b) Terms defined in Section 76-1-101.5 apply to this section.
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(2)(a) Under circumstances not amounting to an offense listed in Subsection (4), an actor
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commits unlawful sexual conduct with a minor if the actor:
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(i)(A) is seven or more years older but less than 10 years older than the minor at
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the time of the sexual conduct;
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(B) engages in any conduct listed in Subsection (2)(b); and
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(C) knew or reasonably should have known the age of the minor; or
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(ii)(A) is 10 or more years older than the minor at the time of the sexual conduct;
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and
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(B) engages in any conduct listed in Subsection (2)(b).
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(b) As used in Subsection (2)(a), "sexual conduct" refers to when the actor:
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(i) has sexual intercourse with the minor;
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(ii) engages in any sexual act with the minor involving the genitals of one individual
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and the mouth or anus of another individual;
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(iii)(A) causes the penetration, however slight, of the genital or anal opening of
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the minor by any foreign object, substance, instrument, or device, including a
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part of the human body; and
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(B) causes the penetration with the intent to cause substantial emotional or bodily
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pain to any individual or with the intent to arouse or gratify the sexual desire of
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any individual; or
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(iv) with the intent to cause substantial emotional or bodily pain to any individual or
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with the intent to arouse or gratify the sexual desire of any individual:
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(A) touches the anus, buttocks, pubic area, or any part of the genitals of the minor;
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(B) touches the female breast of a [female ]minor; or
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(C) otherwise takes indecent liberties with the minor.
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(c)(i) Any touching, even if accomplished through clothing, is sufficient to constitute
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the relevant element of a violation of Subsection (2)(a).
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(ii) Any penetration, however slight, is sufficient to constitute the relevant element
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under Subsection (2)(b)(i).
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(iii) Any touching, however slight, is sufficient to constitute the relevant element
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under Subsection (2)(b)(ii).
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(3)(a) A violation of Subsection (2)(b)(i), (ii), or (iii) is a third degree felony.
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(b) A violation of Subsection (2)(b)(iv) is a class A misdemeanor.
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(4) The offenses referred to in Subsection (2)(a) are:
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(a) rape, in violation of Section 76-5-402;
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(b) object rape, in violation of Section 76-5-402.2;
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(c) forcible sodomy, in violation of Section 76-5-403;
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(d) forcible sexual abuse, in violation of Section 76-5-404;
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(e) aggravated sexual assault, in violation of Section 76-5-405; or
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(f) an attempt to commit an offense listed in Subsections (4)(a) through (e).
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Section 5. Section 76-5-404 is amended to read:
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76-5-404 . Forcible sexual abuse -- Penalties -- Limitations.
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(1)(a) As used in this section[, "indecent ] :
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(i) "Female breast" means the same as that term is defined in Section 76-5-401.1.
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(ii) "Indecent liberties" means the same as that term is defined in Section 76-5-401.1.
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(b) Terms defined in Section 76-1-101.5 apply to this section.
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(2)(a) Under circumstances not amounting to an offense listed in Subsection (4), an actor
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commits forcible sexual abuse if:
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(i) without the consent of the individual, the actor:
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(A) touches the anus, buttocks, pubic area, or any part of the genitals of another
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individual;
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(B) touches the female breast of another individual[ who is female]; or
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(C) otherwise takes indecent liberties with another individual;
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(ii) the actor intends to:
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(A) cause substantial emotional or bodily pain to any individual; or
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(B) arouse or gratify the sexual desire of any individual; and
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(iii) the individual described in Subsection (2)(a)(i)(A), (B), or (C) is 14 years old or
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older.
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(b) Any touching, even if accomplished through clothing, is sufficient to constitute the
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relevant element of a violation of Subsection (2)(a).
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(3)(a) A violation of Subsection (2) is a second degree felony[ of the second degree],
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punishable by a term of imprisonment of not less than one year nor more than 15
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years.
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(b)(i) Notwithstanding Subsection (3)(a) and except as provided in Subsection
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(3)(b)(ii), a violation of Subsection (2) is a first degree felony[ of the first degree],
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punishable by a term of imprisonment for 15 years and which may be for life, if
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the trier of fact finds that during the course of the commission of the forcible
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sexual abuse the [defendant] actor caused serious bodily injury to the victim.
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(ii) If, when imposing a sentence under Subsection (3)(b)(i), a court finds that a lesser
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term than the term described in Subsection (3)(b)(i) is in the interests of justice
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and states the reasons for this finding on the record, the court may impose a term
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of imprisonment of not less than:
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(A) 10 years and which may be for life; or
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(B) six years and which may be for life.
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(4) The offenses referred to in Subsection (2)(a) are:
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(a) rape, in violation of Section 76-5-402;
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(b) object rape, in violation of Section 76-5-402.2;
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(c) forcible sodomy, in violation of Section 76-5-403; or
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(d) an attempt to commit an offense listed in Subsections (4)(a) through (4)(c).
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(5) Imprisonment under Subsection (3)(b) or (4) is mandatory in accordance with Section
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76-3-406.
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Section 6. Section 76-5-404.1 is amended to read:
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76-5-404.1 . Sexual abuse of a child -- Penalties -- Limitations.
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(1)(a) As used in this section:
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(i) "Adult" means an individual 18 years old or older.
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(ii) "Child" means an individual younger than 14 years old.
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(iii) "Female breast" means the same as that term is defined in Section 76-5-401.1.
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[(iii)] (iv) "Indecent liberties" means the same as that term is defined in Section
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76-5-401.1.
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[(iv)] (v) "Position of special trust" means:
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(A) an adoptive parent;
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(B) an athletic manager who is an adult;
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(C) an aunt;
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(D) a babysitter;
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(E) a coach;
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(F) a cohabitant of a parent if the cohabitant is an adult;
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(G) a counselor;
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(H) a doctor or physician;
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(I) an employer;
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(J) a foster parent;
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(K) a grandparent;
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(L) a legal guardian;
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(M) a natural parent;
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(N) a recreational leader who is an adult;
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(O) a religious leader;
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(P) a sibling or a stepsibling who is an adult;
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(Q) a scout leader who is an adult;
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(R) a stepparent;
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(S) a teacher or any other individual employed by or volunteering at a public or
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private elementary school or secondary school, and who is 18 years old or
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older;
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(T) an instructor, professor, or teaching assistant at a public or private institution
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of higher education;
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(U) an uncle;
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(V) a youth leader who is an adult; or
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(W) any individual in a position of authority, other than those individuals listed in
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Subsections [(1)(a)(iv)(A)] (1)(a)(v)(A) through (V), which enables the
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individual to exercise undue influence over the child.
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(b) Terms defined in Section 76-1-101.5 apply to this section.
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(2)(a) Under circumstances not amounting to an offense listed in Subsection (4), an actor
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commits sexual abuse of a child if the actor:
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(i)(A) touches, whether over or under the clothing, the buttocks or pubic area of a
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child;
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(B) touches, whether over or under the clothing, the female breast of a [female ]
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child;
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(C) touches the anus or genitals of a child over the clothing; or
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(D) otherwise takes indecent liberties with a child whether over or under the
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clothing; and
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(ii) the actor's conduct is with intent to:
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(A) cause substantial emotional or bodily pain to any individual; or
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(B) arouse or gratify the sexual desire of any individual.
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(b) Any touching, however slight, is sufficient to constitute the relevant element of a
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violation of Subsection (2)(a).
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(3) A violation of Subsection (2) is a second degree felony.
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(4) The offenses referred to in Subsection (2)(a) are:
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(a) rape of a child, in violation of Section 76-5-402.1;
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(b) object rape of a child, in violation of Section 76-5-402.3;
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(c) sodomy on a child, in violation of Section 76-5-403.1; or
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(d) an attempt to commit an offense listed in Subsections (4)(a) through (4)(c).
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Section 7. Section 76-5-412.2 is amended to read:
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76-5-412.2 . Custodial sexual misconduct -- Penalties -- Defenses.
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(1)(a) As used in this section:
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(i) "Actor" means the same as that term is defined in Section 76-5-412.
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(ii) "Female breast" means the same as that term is defined in Section 76-5-401.1.
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[(ii)] (iii) "Indecent liberties" means the same as that term is defined in Section
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76-5-401.1.
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[(iii)] (iv) "Person in custody" means the same as that term is defined in Section
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76-5-412.
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[(iv)] (v) "Private provider or contractor" means the same as that term is defined in
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Section 76-5-412.
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(b) Terms defined in Section 76-1-101.5 apply to this section.
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(2)(a) An actor commits custodial sexual misconduct if:
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(i) the actor commits any of the acts under Subsection (2)(b) under circumstances not
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amounting to commission of, or an attempt to commit, an offense under
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Subsection 76-5-412(4); and
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(ii)(A) the actor knows that the individual is a person in custody; or
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(B) a reasonable person in the actor's position should have known under the
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circumstances that the individual was a person in custody.
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(b) Acts referred to in Subsection (2)(a) are the following acts when committed with the
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intent to cause substantial emotional or bodily pain to another individual or with the
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intent to arouse or gratify the sexual desire of any individual:
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(i) touching the anus, buttocks, pubic area, or any part of the genitals of a person in
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custody;
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(ii) touching the female breast of a [female ]person in custody; or
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(iii) otherwise taking indecent liberties with a person in custody.
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(3)(a) A violation of Subsection (2) is a class A misdemeanor.
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(b) Notwithstanding Subsection (3)(a), if the person in custody is younger than 18 years
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old, a violation of Subsection (2) is a third degree felony.
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(c) If the act committed under Subsection (2) amounts to an offense subject to a greater
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penalty under another provision of state law than is provided under this Subsection (3),
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this Subsection (3) does not prohibit prosecution and sentencing for the more serious
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offense.
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(4)(a) It is not a defense to the commission of, or attempt to commit, the offense
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described in Subsection (2) if the person in custody is younger than 18 years old, that
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the actor:
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(i) mistakenly believed the person in custody to be 18 years old or older at the time of
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the alleged offense; or
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(ii) was unaware of the true age of the person in custody.
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(b) Consent of the person in custody is not a defense to any violation or attempted
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violation of Subsection (2).
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(5) It is a defense that the commission by the actor of an act under Subsection (2) is the
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result of compulsion, as the defense is described in Subsection 76-2-302(1).
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Section 8. Section 76-5-413.2 is amended to read:
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76-5-413.2 . Custodial sexual misconduct with a youth receiving state services --
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Penalties -- Defenses and limitations.
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(1)(a) As used in this section:
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(i) "Actor" means the same as that term is defined in Section 76-5-413.
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(ii) "Department" means the same as that term is defined in Section 76-5-413.
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(iii) "Female breast" means the same as that term is defined in Section 76-5-401.1.
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[(iii)] (iv) "Indecent liberties" means the same as that term is defined in Section
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76-5-401.1.
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[(iv)] (v) "Juvenile court" means the same as that term is defined in Section 76-5-413.
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[(v)] (vi) "Private provider or contractor" means the same as that term is defined in
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Section 76-5-413.
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[(vi)] (vii) "Youth receiving state services" means the same as that term is defined in
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Section 76-5-413.
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(b) Terms defined in Section 76-1-101.5 apply to this section.
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(2)(a) Under circumstances not amounting to an offense listed in Subsection (4), an actor
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commits custodial sexual misconduct with a youth receiving state services if:
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(i) the actor commits any of the acts described in Subsection (2)(b); and
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(ii)(A) the actor knows that the individual is a youth receiving state services; or
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(B) a reasonable person in the actor's position should have known under the
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circumstances that the individual was a youth receiving state services.
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(b) Acts referred to in Subsection (2)(a) are the following acts when committed with the
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intent to cause substantial emotional or bodily pain to any individual or with the
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intent to arouse or gratify the sexual desire of any individual:
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(i) touching the anus, buttocks, pubic area, or any part of the genitals of a youth
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receiving state services;
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(ii) touching the female breast of a [female ]youth receiving state services; or
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(iii) otherwise taking indecent liberties with a youth receiving state services.
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(c) Any touching, even if accomplished through clothing, is sufficient to constitute the
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relevant element of a violation of Subsection (2)(a).
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(3)(a) A violation of Subsection (2) is a class A misdemeanor.
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(b) Notwithstanding Subsection (3)(a), if the youth receiving state services is younger
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than 18 years old, a violation of Subsection (2) is a third degree felony.
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(c) If the act committed under Subsection (2) amounts to an offense subject to a greater
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penalty under another provision of state law than is provided under this Subsection (3),
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this Subsection (3) does not prohibit prosecution and sentencing for the more serious
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offense.
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(4) The offenses referred to in Subsection (2) are:
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(a) unlawful sexual activity with a minor, in violation of Section 76-5-401;
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(b) rape, in violation of Section 76-5-402;
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(c) rape of a child, in violation of Section 76-5-402.1;
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(d) object rape, in violation of Section 76-5-402.2;
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(e) object rape of a child, in violation of Section 76-5-402.3;
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(f) forcible sodomy, in violation of Section 76-5-403;
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(g) sodomy on a child, in violation of Section 76-5-403.1;
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(h) forcible sexual abuse, in violation of Section 76-5-404;
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(i) sexual abuse of a child, in violation of Section 76-5-404.1;
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(j) aggravated sexual abuse of a child, in violation of Section 76-5-404.3;
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(k) aggravated sexual assault, in violation of Section 76-5-405; or
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(l) an attempt to commit an offense listed in Subsections (4)(a) through (4)(k).
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(5)(a) It is not a defense to the commission of, or an attempt to commit, the offense
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described in Subsection (2) if the youth receiving state services is younger than 18
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years old, that the actor:
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(i) mistakenly believed the youth receiving state services to be 18 years old or older
383
at the time of the alleged offense; or
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(ii) was unaware of the true age of the youth receiving state services.
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(b) Consent of the youth receiving state services is not a defense to any violation or
386
attempted violation of Subsection (2).
387
(6) It is a defense that the commission by the actor of an act under Subsection (2) is the
388
result of compulsion, as the defense is described in Subsection 76-2-302(1).
389
Section 9. Section 76-5b-103 is amended to read:
390
76-5b-103 . Definitions.
391
As used in this chapter:
392
(1) "Child sexual abuse material" means any visual depiction, including any live
393
performance, photograph, film, video, picture, or computer or computer-generated
394
image, picture, or video, whether made or produced by electronic, mechanical, or other
395
means, of sexually explicit conduct, where:
396
(a) the production of the visual depiction involves the use of a minor engaging in,
397
observing, or being used for sexually explicit conduct;
398
(b) the visual depiction is:
399
(i) of a minor engaging in, observing, or being used for sexually explicit conduct; or
400
(ii) artificially generated and depicts an individual with substantial characteristics of a
401
minor engaging in, observing, or being used for sexually explicit conduct; or
402
(c) the visual depiction has been created, adapted, or modified to appear that an
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403
identifiable minor is engaging, observing, or being used for in sexually explicit
404
conduct.
405
(2) "Children's Justice Center" means a facility or satellite office established under the
405a
Children's Justice Center Program described in Section 67-5b-102.
406
(3) "Distribute" means, with or without consideration, to sell, exhibit, display, provide,
407
give, grant admission to, provide access to, or otherwise transfer.
408
(4) "Female breast" means the undeveloped, partially developed, or developed breast of a
409
female individual.
410
[(3)] (5) "Identifiable minor" means an individual:
411
(a)(i) who was a minor at the time the visual depiction was created, adapted, or
412
modified; or
413
(ii) whose image as a minor was used in creating, adapting, or modifying the visual
414
depiction; and
415
(b) who is recognizable as an actual individual by the individual's face, likeness, or other
416
distinguishing characteristic, such as a birthmark, or other recognizable feature.
417
[(4)] (6) "Identifiable vulnerable adult" means an individual:
418
(a)(i) who was a vulnerable adult at the time the visual depiction was created,
419
adapted, or modified; or
420
(ii) whose image as a vulnerable adult was used in creating, adapting, or modifying
421
the visual depiction; and
422
(b) who is recognizable as an actual individual by the individual's face, likeness, or other
423
distinguishing characteristic, such as a birthmark, or other recognizable feature.
424
[(5)] (7) "Lacks capacity to consent" means the same as that term is defined in Section
425
76-5-111.4.
426
[(6)] (8) "Live performance" means any act, play, dance, pantomime, song, or other activity
427
performed by live actors in person.
428
[(7)] (9) "Minor" means an individual who is younger than 18 years old.
429
[(8)] (10) "Nudity or partial nudity" means any state of dress or undress in which the human
430
genitals, pubic region, buttocks, or the female breast, at a point below the top of the
431
areola, is less than completely and opaquely covered.
432
[(9)] (11) "Produce" means:
433
(a) the photographing, filming, taping, directing, producing, creating, designing, or
434
composing of child sexual abuse material or vulnerable adult sexual abuse material; or
435
(b) the securing or hiring of individuals to engage in the photographing, filming, taping,
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436
directing, producing, creating, designing, or composing of child sexual abuse
437
material or vulnerable adult sexual abuse material.
438
[(10)] (12) "Sexually explicit conduct" means actual or simulated:
439
(a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
440
whether between individuals of the same or opposite sex;
441
(b) masturbation;
442
(c) bestiality;
443
(d) sadistic or masochistic activities;
444
(e) lascivious exhibition of the genitals, pubic region, buttocks, or female breast of any
445
individual;
446
(f) the visual depiction of nudity or partial nudity for the purpose of causing sexual
447
arousal of any individual;
448
(g) the fondling or touching of the genitals, pubic region, buttocks, or female breast; or
449
(h) the [explicit representation] visual depiction of [the ]defecation or urination [functions]
450
for the purpose of causing sexual arousal of any individual.
451
[(11)] (13) "Simulated sexually explicit conduct" means a feigned or pretended act of
452
sexually explicit conduct which duplicates, within the perception of an average person,
453
the appearance of an actual act of sexually explicit conduct.
454
[(12)] (14) "Vulnerable adult" means the same as that term is defined in Subsection 76-5-111
455
(1).
456
[(13)] (15) "Vulnerable adult sexual abuse material" means any visual depiction, including
457
any live performance, photograph, film, video, picture, or computer or
458
computer-generated image or picture, whether made or produced by electronic,
459
mechanical, or other means, of sexually explicit conduct, where:
460
(a) the production of the visual depiction involves the use of a vulnerable adult engaging
461
in sexually explicit conduct;
462
(b) the visual depiction is of a vulnerable adult engaging in sexually explicit conduct; or
463
(c) the visual depiction has been created, adapted, or modified to appear that an
464
identifiable vulnerable adult is engaging in sexually explicit conduct.
465
Section 10. Section 76-5b-201 is amended to read:
466
76-5b-201 . Sexual exploitation of a minor -- Offenses.
467
(1) Terms defined in Section 76-1-101.5 apply to this section.
468
(2) An actor commits sexual exploitation of a minor [when] if the actor:
469
(a) [ ]knowingly possesses child sexual abuse material; or
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470
(b) intentionally:
471
(i) [ ]views child sexual abuse material; or
472
(ii) creates a link to a computer-based file or cloud-based file to allow repeated
473
viewing of child sexual abuse material.
474
(3)(a) A violation of Subsection (2) is a second degree felony.
475
(b) It is a separate offense under this section:
476
(i) for each minor depicted in the child sexual abuse material; and
477
(ii) for each time the same minor is depicted in different child sexual abuse material.
478
(4) For a charge of violating this section, it is an affirmative defense that:
479
(a) the defendant:
480
(i) did not solicit the child sexual abuse material from the minor depicted in the child
481
sexual abuse material;
482
(ii) is not more than two years older than the minor depicted in the child sexual abuse
483
material; and
484
(iii) upon request of a law enforcement agent or the minor depicted in the child
485
sexual abuse material, removes from an electronic device or destroys the child
486
sexual abuse material and all copies of the child sexual abuse material in the
487
defendant's possession; and
488
(b) the child sexual abuse material does not depict an offense under Chapter 5, Part 4,
489
Sexual Offenses.
490
(5) In proving a violation of this section in relation to an identifiable minor, proof of the
491
actual identity of the identifiable minor is not required.
492
(6) The following are not criminally or civilly liable under this section when acting in good
493
faith compliance with Section 77-4-201:
494
(a) an entity or an employee, director, officer, or agent of an entity when acting within
495
the scope of employment, for the good faith performance of:
496
(i) reporting or data preservation duties required under federal or state law; or
497
(ii) implementing a policy of attempting to prevent the presence of child sexual abuse
498
material on tangible or intangible property, or of detecting and reporting the
499
presence of child sexual abuse material on the property;
500
(b) a law enforcement officer, a civilian employee of a law enforcement agency, or an
501
independent contractor who is contracted with a law enforcement agency, acting
502
within the scope of a criminal investigation;
503
(c) an employee of a court who may be required to view child sexual abuse material
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504
during the course of and within the scope of the employee's employment;
505
(d) a juror who may be required to view child sexual abuse material during the course of
506
the individual's service as a juror;
507
(e) an attorney or employee of an attorney who is required to view child sexual abuse
508
material during the course of a judicial process and while acting within the scope of
509
employment;
510
(f) an employee of the Department of Health and Human Services who is required to
511
view child sexual abuse material within the scope of the employee's employment;
512
(g) an employee, independent contractor, or designated interviewer of a Children's
513
Justice Center, who is required to view child sexual abuse material within the scope
514
of the employee's, independent contractor's, or designated interviewer's scope of
515
employment or assignment; or
516
[(g)] (h) an attorney who is required to view child sexual abuse material within the scope
517
of the attorney's responsibility to represent the Department of Health and Human
518
Services, including the divisions and offices within the Department of Health and
519
Human Services.
520
Section 11. Section 76-5b-201.1 is amended to read:
521
76-5b-201.1 . Aggravated sexual exploitation of a minor.
522
(1) [As used in this section:]
523
[(a) "Physical abuse" or "physically abused" means the same as the term "physical
524
abuse" is defined in Section 80-1-102.]
525
[(b) The terms ] Terms defined in Section 76-1-101.5 apply to this section.
526
(2) An actor commits aggravated sexual exploitation of a minor if the actor:
527
(a) intentionally distributes child sexual abuse material;
528
(b) knowingly produces child sexual abuse material; or
529
(c) is the minor's parent or legal guardian and knowingly consents to or permits the
530
minor to be sexually exploited as described in Subsection (2)(a) or (b) or Section
531
76-5b-201.
532
(3)(a) Except as provided in Subsection (3)(b) or (c), a violation of Subsection (2) is a
533
first degree felony.
534
(b) If an actor is under 18 years old at the time of the offense, a violation of Subsection
535
(2) is a second degree felony.
536
(c) A violation of Subsection (2)(a) is a second degree felony if the child sexual abuse
537
material depicts an individual who is:
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538
(i) 14 years old or older; or
539
(ii) pubescent.
540
(4) It is a separate offense under this section:
541
(a) for each minor depicted in the child sexual abuse material; and
542
(b) for each time the same minor is depicted in different child sexual abuse material.
543
(5) In proving a violation of this section in relation to an identifiable minor, proof of the
544
actual identity of the identifiable minor is not required.
545
(6) The following are not criminally or civilly liable under this section when acting in good
546
faith compliance with Section 77-4-201:
547
(a) an entity or an employee, director, officer, or agent of an entity when acting within
548
the scope of employment, for the good faith performance of:
549
(i) reporting or data preservation duties required under federal or state law; or
550
(ii) implementing a policy of attempting to prevent the presence of child sexual abuse
551
material on tangible or intangible property, or of detecting and reporting the
552
presence of child sexual abuse material on the property;
553
(b) a law enforcement officer, a civilian employee of a law enforcement agency, or an
554
independent contractor who is contracted with a law enforcement agency, acting
555
within the scope of a criminal investigation;
556
(c) an employee of a court who may be required to view child sexual abuse material
557
during the course of and within the scope of the employee's employment;
558
(d) a juror who may be required to view child sexual abuse material during the course of
559
the individual's service as a juror;
560
(e) an attorney or employee of an attorney who is required to view child sexual abuse
561
material during the course of a judicial process and while acting within the scope of
562
employment;
563
(f) an employee of the Department of Health and Human Services who is required to
564
view child sexual abuse material within the scope of the employee's employment;
565
(g) an employee, independent contractor, or designated interviewer of a Children's
566
Justice Center, who is required to view child sexual abuse material within the scope
567
of the employee's, independent contractor's, or designated interviewer's scope of
568
employment or assignment; or
569
[(g)] (h) an attorney who is required to view child sexual abuse material within the scope
570
of the attorney's responsibility to represent the Department of Health and Human
571
Services, including the divisions and offices within the Department of Health and
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572
Human Services.
573
Section 12. Effective Date.
574
This bill takes effect on May 7, 2025.
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