Utah Code 76-5b-205. Unlawful distribution of a counterfeit intimate image — Penalty
Current as of: 2024 | Check for updates
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(1)
For details, see Utah Code § 76-3-204
Attorney's Note
Under the Utah Code, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| class A misdemeanor | up to 364 days | up to $2,500 |
Terms Used In Utah Code 76-5b-205
- Actor: means a person whose criminal responsibility is in issue in a criminal action. See Utah Code 76-1-101.5
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Conduct: means an act or omission. See Utah Code 76-1-101.5
- Conviction: A judgement of guilt against a criminal defendant.
- Distribute: means , with or without consideration, to sell, exhibit, display, provide, give, grant admission to, provide access to, or otherwise transfer. See Utah Code 76-5b-103
- Female: means the characteristic of an individual whose biological reproductive system is of the general type that functions in a way that could produce ova. See Utah Code 68-3-12.5
- Male: means the characteristic of an individual whose biological reproductive system is of the general type that functions to fertilize the ova of a female. See Utah Code 68-3-12.5
- Minor: means an individual who is younger than 18 years old. See Utah Code 76-5b-103
- Offense: means a violation of any penal statute of this state. See Utah Code 76-1-101.5
- Person: means an individual, public or private corporation, government, partnership, or unincorporated association. See Utah Code 76-1-101.5
- Sexually explicit conduct: means actual or simulated:(10)(a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between individuals of the same or opposite sex;(10)(b) masturbation;(10)(c) bestiality;(10)(d) sadistic or masochistic activities;(10)(e) lascivious exhibition of the genitals, pubic region, buttocks, or female breast of any individual;(10)(f) the visual depiction of nudity or partial nudity for the purpose of causing sexual arousal of any individual;(10)(g) the fondling or touching of the genitals, pubic region, buttocks, or female breast; or(10)(h) the explicit representation of the defecation or urination functions. See Utah Code 76-5b-103(1)(a) As used in this section:(1)(a)(i) “Child” means an individual under 18 years old.(1)(a)(ii) “Counterfeit intimate image” means any visual depiction, photograph, film, video, recording, picture, or computer or computer-generated image , picture, or video, whether made or produced by electronic, mechanical, or other means, that has been edited, manipulated, generated, or altered to depict the likeness of an identifiable individual and purports to, or is made to appear to, depict that individual’s:(1)(a)(ii)(A) exposed human male or female genitals or pubic area, with less than an opaque covering;(1)(a)(ii)(B) a female breast with less than an opaque covering, or any portion of the female breast below the top of the areola; or(1)(a)(ii)(C) the individual engaged in any sexually explicit conduct or simulated sexually explicit conduct.(1)(a)(iii) “Sexually explicit conduct” means the same as that term is defined in Section
76-5b-203 .(1)(a)(iv) “Simulated sexually explicit conduct” means the same as that term is defined in Section76-5b-203 .(1)(a)(v) “Single criminal episode” means the same as that term is defined in Section76-1-401 .(1)(b) Terms defined in Section76-1-101.5 apply to this section.
(2)
(2)(a) An actor commits the offense of unlawful distribution of a counterfeit intimate image if the actor knowingly or intentionally distributes a counterfeit intimate image that the actor knows or should reasonably know would cause a reasonable person to suffer emotional or physical distress or harm, if:
(2)(a)(i) the actor has not received consent from the depicted individual to distribute the counterfeit intimate image; and
(2)(a)(ii) the counterfeit intimate image was created or provided by the actor without the knowledge and consent of the depicted individual.
(2)(b) An actor who is 18 years old or older commits aggravated unlawful distribution of a counterfeit intimate image if, in committing the offense described in Subsection (2)(a), the individual depicted in the counterfeit intimate image is a child.
(3)
(3)(a)
(3)(a)(i) A violation of Subsection (2)(a) that is knowing or intentional is a class A misdemeanor.
(3)(a)(ii) Notwithstanding Subsection (3)(a)(i), a violation of Subsection (2)(a) that is knowing or intentional is a third degree felony on a second or subsequent conviction for an offense under this section that does not arise from a single criminal episode.
(3)(b)
(3)(b)(i) A violation of Subsection (2)(b) that is knowing or intentional is a third degree felony.
(3)(b)(ii) Notwithstanding Subsection (3)(b)(i), a violation of Subsection (2)(b) that is knowing or intentional is a second degree felony on a second or subsequent conviction for an offense under this section that does not arise from a single criminal episode.
(3)(c) This section does not apply to an actor who engages in conduct that constitutes a violation of this section to the extent that the actor is chargeable, for the same conduct, under Section 76-5b-201 , sexual exploitation of a minor, or Section 76-5b-201.1 , aggravated sexual exploitation of a minor.
(4) This section does not apply to:
(4)(a)
(4)(a)(i) lawful practices of law enforcement agencies;
(4)(a)(ii) prosecutorial agency functions;
(4)(a)(iii) the reporting of a criminal offense;
(4)(a)(iv) court proceedings or any other judicial proceeding; or
(4)(a)(v) lawful and generally accepted medical practices and procedures;
(4)(b) a counterfeit intimate image if the individual depicted in the image voluntarily allows public exposure of the image;
(4)(c) a counterfeit intimate image that is portrayed in a lawful commercial setting; or
(4)(d) a counterfeit intimate image that is related to a matter of public concern or interest or protected by the First Amendment to the United States Constitution or Article I, Sections 1 and 15 of the Utah Constitution.
(5)
(5)(a) This section does not apply to an Internet service provider or interactive computer service, as defined in 47 U.S.C. § 230(f)(2), a provider of an electronic communications service as defined in 18 U.S.C. § 2510, a telecommunications service, information service, or mobile service as defined in 47 U.S.C. § 153, including a commercial mobile service as defined in 47 U.S.C. § 332(d), or a cable operator as defined in 47 U.S.C. § 522, if:
(5)(a)(i) the distribution of a counterfeit intimate image by the Internet service provider occurs only incidentally through the provider’s function of:
(5)(a)(i)(A) transmitting or routing data from one person to another person; or
(5)(a)(i)(B) providing a connection between one person and another person;
(5)(a)(ii) the provider does not intentionally aid or abet in the distribution of the counterfeit intimate image; and
(5)(a)(iii) the provider does not knowingly receive from or through a person who distributes the counterfeit intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute the counterfeit intimate image.
(5)(b) This section does not apply to a hosting company, as defined in Section 76-10-1230 , if:
(5)(b)(i) the distribution of a counterfeit intimate image by the hosting company occurs only incidentally through the hosting company’s function of providing data storage space or data caching to a person;
(5)(b)(ii) the hosting company does not intentionally engage, aid, or abet in the distribution of the counterfeit intimate image;
(5)(b)(iii) the hosting company does not knowingly receive from or through a person who distributes the counterfeit intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute, store, or cache the counterfeit intimate image; and
(5)(b)(iv) the hosting company immediately removes the counterfeit intimate image upon notice from a law enforcement agency, prosecutorial agency, or the individual purportedly depicted in the counterfeit intimate image.
(5)(c) A service provider, as defined in Section 76-10-1230 , is not negligent under this section if it complies with Section 76-10-1231 .