§ 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 any means, 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 an image of child pornography.

(b) Penalties.

(1) Whoever violates or attempts or conspires to violate subdivisions (a)(1), (a)(2) or (a)(3) of this section shall be subject to a fine of not more than five thousand dollars ($5,000), or imprisoned for not more than fifteen (15) years, or both.

(2) Whoever violates or attempts or conspires to violate subdivision (a)(4) of this section shall be subject to a fine of not more than five thousand dollars ($5,000), or imprisoned not more than five (5) years, or both.

(c) Definitions. For purposes of this section:

(1) "Child pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or 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 use of a minor engaging in sexually explicit conduct;

(ii) Such visual depiction is a digital image, computer image, or computer-generated image of a minor engaging in sexually explicit conduct; or

(iii) Such visual depiction has been created, adapted, or modified to display an identifiable minor engaging in sexually explicit conduct.

(2) "Computer" has the meaning given to that term in section 11-52-1;

(3) "Minor" means any person not having reached eighteen (18) years of age;

(4) "Identifiable minor."

(i) Means a person:

(A)(I) Who was a minor at the time the visual depiction was created, 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's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

(B) Shall not be construed to require proof of the actual identity 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 intercourse where 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 pubic area of any person;

(7) "Visual depiction" includes undeveloped film and videotape and data stored on a computer disk or by electronic means, which is capable of conversion into a visual image;

(8) "Graphic," when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted.

(d) Affirmative defenses.

(1) It shall be an affirmative defense to a charge of violating subdivision (a)(1), (a)(2), or (a)(3) of this section that:

(i) The alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; and

(ii) Each such person was an adult at the time the material was produced; and

(iii) The defendant did not advertise, promote, present, describe or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor engaging in sexually explicit conduct.

(2) It shall be an affirmative defense to a charge of violating subdivision (a)(4) of this section that the defendant:

(i) Possessed less than three (3) images of child pornography; and

(ii) Promptly and in good faith and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy of it:

(A) Took reasonable steps to destroy each such image; or

(B) Reported the matter to a law enforcement agency and afforded that agency access to each such image.

(e) Severability. If any provision or provisions of this section, or the application of this section to any person or circumstance is held invalid by a court of competent authority, that invalidity does not affect other provisions or applications of this section which can be given effect without that invalid provision or provisions or application of the provision or provisions, and to this end the provisions of this section are declared to be separable and severable.

History of Section. (P.L. 2001, ch. 143, § 1; P.L. 2004, ch. 586, § 2; P.L. 2004, ch. 612, § 2.)