§ 11-9-1.3 - Child pornography prohibited.
SECTION 11-9-1.3
§ 11-9-1.3 Child pornography prohibited.– (a) Violations. It is a violation of this section for any person to:
(1) Knowingly produce any child pornography;
(2) Knowingly mail, transport, deliver or transfer by anymeans, including by computer, any child pornography;
(3) Knowingly reproduce any child pornography by any means,including the computer; or
(4) Knowingly possess any book, magazine, periodical, film,videotape, computer disk, computer file or any other material that contains animage of child pornography.
(1) Whoever violates or attempts or conspires to violatesubdivisions (a)(1), (a)(2) or (a)(3) of this section shall be subject to afine of not more than five thousand dollars ($5,000), or imprisoned for notmore than fifteen (15) years, or both.
(2) Whoever violates or attempts or conspires to violatesubdivision (a)(4) of this section shall be subject to a fine of not more thanfive thousand dollars ($5,000), or imprisoned not more than five (5) years, orboth.
(c) Definitions. For purposes of this section:
(1) "Child pornography" means any visual depiction, includingany photograph, film, video, picture, or computer or computer-generated imageor picture, whether made or produced by electronic, mechanical, or other means,of sexually explicit conduct where:
(i) The production of such visual depiction involves the useof a minor engaging in sexually explicit conduct;
(ii) Such visual depiction is a digital image, computerimage, or computer-generated image of a minor engaging in sexually explicitconduct; or
(iii) Such visual depiction has been created, adapted, ormodified to display an identifiable minor engaging in sexually explicit conduct.
(2) "Computer" has the meaning given to that term in section11-52-1;
(3) "Minor" means any person not having reached eighteen (18)years of age;
(4) "Identifiable minor."
(i) Means a person:
(A) Who was a minor at the time the visual depiction wascreated, adapted, or modified; or
(II) Whose image as a minor was used in creating, adapting,or modifying the visual depiction; and
(ii) Who is recognizable as an actual person by the person'sface, likeness, or other distinguishing characteristic, such as a uniquebirthmark or other recognizable feature; and
(B) Shall not be construed to require proof of the actualidentity of the identifiable minor.
(5) "Producing" means producing, directing, manufacturing,issuing, publishing or advertising;
(6) "Sexually explicit conduct" means actual:
(i) Graphic sexual intercourse, including genital-genital,oral-genital, anal-genital, or oral-anal, or lascivious sexual intercoursewhere the genitals, or pubic area of any person is exhibited;
(ii) Bestiality;
(iii) Masturbation;
(iv) Sadistic or masochistic abuse; or
(v) Graphic or lascivious exhibition of the genitals or pubicarea of any person;
(7) "Visual depiction" includes undeveloped film andvideotape and data stored on a computer disk or by electronic means, which iscapable of conversion into a visual image;
(8) "Graphic," when used with respect to a depiction ofsexually explicit conduct, means that a viewer can observe any part of thegenitals or pubic area of any depicted person or animal during any part of thetime that the sexually explicit conduct is being depicted.
(1) It shall be an affirmative defense to a charge ofviolating subdivision (a)(1), (a)(2), or (a)(3) of this section that:
(i) The alleged child pornography was produced using anactual person or persons engaging in sexually explicit conduct; and
(ii) Each such person was an adult at the time the materialwas produced; and
(iii) The defendant did not advertise, promote, present,describe or distribute the material in such a manner as to convey theimpression that it is or contains a visual depiction of a minor engaging insexually explicit conduct.
(2) It shall be an affirmative defense to a charge ofviolating subdivision (a)(4) of this section that the defendant:
(i) Possessed less than three (3) images of childpornography; and
(ii) Promptly and in good faith and without retaining orallowing any person, other than a law enforcement agency, to access any imageor copy of it:
(A) Took reasonable steps to destroy each such image; or
(B) Reported the matter to a law enforcement agency andafforded that agency access to each such image.
(e) Severability. If any provision or provisions ofthis section, or the application of this section to any person or circumstanceis held invalid by a court of competent authority, that invalidity does notaffect other provisions or applications of this section which can be giveneffect without that invalid provision or provisions or application of theprovision or provisions, and to this end the provisions of this section aredeclared to be separable and severable.