COCODE

18-6-403. Sexual exploitation of a child - legislative declaration - definitions.

Statute text

(1) The general assembly hereby finds and declares: That the sexual exploitation of children constitutes a wrongful invasion of the child's right of privacy and results in social, developmental, and emotional injury to the child; that a child below the age of eighteen years is incapable of giving informed consent to the use of his or her body for a sexual purpose; and that to protect children from sexual exploitation it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce.

(1.5) The general assembly further finds and declares that the mere possession or control of any sexually exploitative material results in continuing victimization of our children by the fact that such material is a permanent record of an act or acts of sexual abuse of a child; that each time such material is shown or viewed, the child is harmed; that such material is used to break down the will and resistance of other children to encourage them to participate in similar acts of sexual abuse; that laws banning the production and distribution of such material are insufficient to halt this abuse; that in order to stop the sexual exploitation and abuse of our children, it is necessary for the state to ban the possession of any sexually exploitative materials; and that the state has a compelling interest in outlawing the possession of any sexually exploitative materials in order to protect society as a whole, and particularly the privacy, health, and emotional welfare of its children.

(2) As used in this section, unless the context otherwise requires:

(a) "Child" means a person who is less than eighteen years of age.

(b) (Deleted by amendment, L. 2003, p. 1882, 1, effective July 1, 2003.)

(b.5) "Defense counsel personnel" means any defense attorney lawfully representing a defendant in a criminal case or a juvenile in a delinquency case that involves sexually exploitative material or another individual employed or retained by the defense attorney who performs or assists in the duties relating to the defense of the accused that may involve sexually exploitative materials.

(c) "Erotic fondling" means touching a person's clothed or unclothed genitals or pubic area, developing or undeveloped genitals or pubic area (if the person is a child), buttocks, breasts, or developing or undeveloped breast area (if the person is a child), for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved. "Erotic fondling" shall not be construed to include physical contact, even if affectionate, which is not for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.

(d) "Erotic nudity" means the display of the human male or female genitals or pubic area, the undeveloped or developing genitals or pubic area of the human male or female child, the human breasts, or the undeveloped or developing breast area of the human child, for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.

(e) "Explicit sexual conduct" means sexual intercourse, sexual intrusion, erotic fondling, erotic nudity, masturbation, sadomasochism, or sexual excitement.

(e.5) "Law enforcement personnel" means any peace officer, prosecutor, criminal investigator, crime analyst, or other individual who is employed by a law enforcement agency or district attorney's office and who performs or assists in investigative duties that may involve sexually exploitative materials.

(f) "Masturbation" means the real or simulated touching, rubbing, or otherwise stimulating of a person's own clothed or unclothed genitals or pubic area, developing or undeveloped genitals or pubic area (if the person is a child), buttocks, breasts, or developing or undeveloped breast area (if the person is a child), by manual manipulation or self-induced or with an artificial instrument, for the purpose of real or simulated overt sexual gratification or arousal of the person.

(g) "Sadomasochism" means:

(I) Real or simulated flagellation or torture for the purpose of real or simulated sexual stimulation or gratification; or

(II) The real or simulated condition of being fettered, bound, or otherwise physically restrained for sexual stimulation or gratification of a person.

(h) "Sexual excitement" means the real or simulated condition of human male or female genitals when in a state of real or simulated overt sexual stimulation or arousal.

(i) "Sexual intercourse" means real or simulated intercourse, whether genital-genital, oral-genital, anal-genital, or oral-anal, between persons of the same or opposite sex, or between a human and an animal, or with an artificial genital.

(i.5) "Sexual intrusion" means an intrusion, however slight, by an object or a part of a person's body, except the mouth, tongue, or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purpose of sexual arousal, gratification, or abuse.

(j) "Sexually exploitative material" means any photograph, motion picture, video, recording or broadcast of moving visual images, livestream, print, negative, slide, or other mechanically, electronically, chemically, or digitally reproduced visual material that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct.

(k) "Video", "recording or broadcast", or "motion picture" means any material that depicts a moving image of a child engaged in, participating in, observing, or being used for explicit sexual conduct.

(3) A person commits sexual exploitation of a child if, for any purpose, he or she knowingly:

(a) Causes, induces, entices, or permits a child to engage in, or be used for, any explicit sexual conduct for the making of any sexually exploitative material; or

(b) Prepares, arranges for, publishes, produces, promotes, makes, sells, finances, offers, exhibits, advertises, deals in, distributes, transports or transfers to another person, or makes accessible to another person, including, but not limited to, through digital or electronic means, any sexually exploitative material; or

(b.5) Accesses with intent to view, views, possesses, or controls any sexually exploitative material for any purpose; except that this subsection (3)(b.5) does not apply to law enforcement personnel, defense counsel personnel, or court personnel in the performance of their official duties, nor does it apply to physicians, psychologists, therapists, or social workers, so long as such persons are licensed in the state of Colorado and the persons possess such materials in the course of a bona fide treatment or evaluation program at the treatment or evaluation site; or

(c) Possesses with the intent to deal in, sell, or distribute, including but not limited to distributing through digital or electronic means, any sexually exploitative material; or

(d) Causes, induces, entices, or permits a child to engage in, or be used for, any explicit sexual conduct for the purpose of producing a performance, or accesses with intent to view or views explicit sexual conduct in the form of a performance involving a child if the conduct in the performance was caused, induced, enticed, requested, directed, or specified by the viewer or potential viewer.

(3.5) A juvenile's conduct that is limited to the elements of the petty offense of possession of a private image by a juvenile, as described in section 18-7-109 (2), or limited to the elements of the civil infraction of exchange of a private image by a juvenile, as described in section 18-7-109 (3), is not subject to prosecution pursuant to subsection (3)(b) or (3)(b.5) of this section.

(4) (Deleted by amendment, L. 2003, p. 1882, 1, effective July 1, 2003.)

(5) (a) Except as provided in paragraph (b) of this subsection (5), sexual exploitation of a child is a class 3 felony.

(b) Sexual exploitation of a child pursuant to subsection (3)(b.5) of this section is a class 5 felony for each item of sexually exploitative material accessed with intent to view, viewed, possessed, or controlled; except that said offense is a class 4 felony if:

(I) It is a second or subsequent offense; or

(II) The item accessed with intent to view, viewed, possessed, or controlled is a video, recording or broadcast of moving visual images, or motion picture.

(5.5) Sexual exploitation of a child is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10) if the sexually exploitative material depicts a child who is:

(a) Under twelve years of age;

(b) Subjected to the actual application of physical force or violence; or

(5.7) Notwithstanding section 16-22-113 (3)(c) to the contrary, an adult who has more than one conviction of subsection (3)(b.5) of this section in a single criminal case is eligible to petition for removal from the registry pursuant to section 16-22-113.

(6) If any provision of this section or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are declared to be severable.

(7) A juvenile charged with a violation of section 18-7-109 (1) is not subject to prosecution for violation of this section for the same electronic or digital photograph, video, or image arising out of the same criminal episode.

(8) Nothing in this section changes the discovery procedure for sexually exploitative material as described in section 16-9-601.

History

Source: L. 79: Entire section added, p. 737, 1, effective July 1. L. 81: (3)(a) amended, p. 997, 1, effective July 1. L. 84: (1) and (3) amended, p. 553, 1, effective July 1. L. 88: (1.5) and (3)(b.5) added, (2)(c), (2)(d), (2)(f), and (5) amended, and (4) R&RE, pp. 730, 712, 731, 1, 2, 4, 18, 3, effective July 1. L. 98: (2)(j), IP(3), (3)(b), and (3)(c) amended, p. 398, 3, effective April 21. L. 2003: (2)(b), (3)(a), (3)(c), and (4) amended, p. 1882, 1, effective July 1. L. 2006: (5) amended, p. 2043, 1, effective July 1; (5) amended, p. 2056, 7, effective July 1. L. 2009: (2)(j) and (5) amended and (2)(k) added, (HB 09-1163), ch. 343, p. 1799, 3, effective July 1. L. 2015: Entire section amended, (HB 15-1341), ch. 274, p. 1113, 1, effective August 5. L. 2017: (2)(b.5) and (2)(e.5) added and (3)(b.5) amended, (SB 17-115), ch. 141, p. 470, 1, effective April 18; (3.5) and (7) added, (HB 17-1302), ch. 390, p. 2013, 3, effective January 1, 2018. L. 2018: (8) added, (HB 18-1066), ch. 58, p. 600, 1, effective March 22. L. 2021: (2)(e), (2)(j), (3)(b), (3)(b.5), (3)(d), and (5)(b) amended and (2)(i.5), (5.5), and (5.7) added, (HB 21-1069), ch. 446, p. 2940, 2, effective September 7.

Annotations

Editor's note: Amendments to subsection (5) by House Bill 06-1011 and House Bill 06-1092 were harmonized.

Annotations

Cross references: (1) For the legislative declaration in HB 17-1302 stating the purpose of, and the provision directing legislative service agencies to conduct, a post-enactment review pursuant to 2-2-1201 scheduled in 2020, see sections 1 and 7 of chapter 390, Session Laws of Colorado 2017. To obtain a copy of the review, once completed, go to "Legislative Resources and Requirements" on the Colorado General Assembly's website.

(2) For the legislative declaration in HB 21-1069 stating the purpose of, and the provision directing legislative staff agencies to conduct, a post-enactment review pursuant to 2-2-1201 scheduled in 2024, see sections 1 and 7 of chapter 446, Session Laws of Colorado 2021. To obtain a copy of the review, once completed, go to "Legislative Resources and Requirements" on the Colorado General Assembly's website.

Annotations

ANNOTATION

Annotations

Constitutionality. This section does not constitute a denial of due process nor infringe upon first amendment freedom of speech. The sale of child pornography is not constitutionally protected conduct. People v. Enea, 665 P.2d 1026 (Colo. 1983).

The constitutionality of this section is preserved by the statutory requirements that a person knowingly took sexually explicit photographs of a child and that the content of those photographs, viewed objectively, would lead to sexual gratification or stimulation of a reasonable viewer. People v. Grady, 126 P.3d 218 (Colo. App. 2005).

Defining "sexual gratification or stimulation of one or more of the persons involved" objectively, so as to include a reasonable viewer of sexual materials that have been distributed, furthers the statute's legislative intent of protecting children from sexual exploitation and does not cause the statute to be unconstitutionally overbroad and vague. People v. Grady, 126 P.3d 218 (Colo. App. 2005).

Subsection (1) is a statement of legislative purpose, and does not alter the elements of the crime as set forth in subsection (3). People v. Enea, 665 P.2d 1026 (Colo. 1983).

Section is not unconstitutionally vague. People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999).

Subsection (2)(d) that defines "erotic nudity" is not unconstitutionally overbroad. The category of "sexual conduct" proscribed through the definition of "erotic nudity" in subsection (2)(d) is suitably limited to conduct that is not constitutionally protected. People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999).

Subsection (3)(a) is not constitutionally overbroad on its face because it prohibits only the use of real children in the production of pornography and does not prohibit the making or possession of photographs that "appear to be" of a minor engaged in sexually explicit conduct. People v. Campbell, 94 P.3d 1186 (Colo. App. 2004).

Subsection (3)(b) is not unconstitutionally overbroad or vague on its face when used to prosecute for making materials depicting erotic nudity as defined by subsection (2)(d). People v. Batchelor, 800 P.2d 599 (Colo. 1990).

Subsection (3)(b) is not overbroad or vague as applied to the defendant who was charged with sexual exploitation of a child because he knowingly made photographs of his daughter for no reason other than defendant's sexual gratification. People v. Batchelor, 800 P.2d 599 (Colo. 1990).

The sexual abuse language from the legislative declaration does not modify the elements of the offense of sexual exploitation of a child. People in Interest of T.B., 2019 CO 53, 445 P.3d 1049, cert. denied, __ U.S. __, 140 S. Ct. 876, 205 L. Ed. 2d 495 (2020).

The elements of possessing sexually exploitative material, subsection (3)(b.5), are unambiguous, so a court cannot import a sexual abuse of a child component from the legislative declaration into the statute. People in Interest of T.B., 2016 COA 151M, 452 P.3d 36, aff'd, 2019 CO 53, 445 P.3d 1049, cert. denied, __ U.S. __, 140 S. Ct. 876, 205 L. Ed. 2d 495 (2020).

Prior to January 1, 2018, sexual exploitation of a child applied to a juvenile who engaged in sexting. People in Interest of T.B., 2019 CO 53, 445 P.3d 1049, cert. denied, __ U.S. __, 140 S. Ct. 876, 205 L. Ed. 2d 495 (2020).

The crime of possessing sexually exploitative material, subsection (3)(b.5), applies to adults and juveniles alike. People in Interest of T.B., 2016 COA 151M, 452 P.3d 36, aff'd, 2019 CO 53, 445 P.3d 1049, cert. denied, __ U.S. __, 140 S. Ct. 876, 205 L. Ed. 2d 495 (2020).

Based on the plain language of subsections (3)(b) and (3)(b.5), the general assembly intended the prohibited behavior relating to each discrete item of sexually exploitative material to constitute an allowable unit of prosecution. Each sexually exploitative image is a permanent record and, therefore, constitutes a discrete act of victimization of the child. People v. Renander, 151 P.3d 657 (Colo. App. 2006) (decided under former law).

Because subsection (3) is written in the disjunctive, constructed as a series of acts referencing the same subject (sexually exploitative materials) and governed by a common mens rea, it prescribes alternative ways of committing the same offense. Therefore, a defendant cannot be convicted of both creating and possessing sexually exploitative material for a single occurrence. People v. Meils, 2019 COA 180, 471 P.3d 1130.

Defendant's possession of 294 images subjects defendant to only one conviction under subsection (3)(b.5). The unit of prosecution under the statute is an act of possession, not an individual image. Multiplicitous convictions for a single act of possession violate defendant's rights under the double jeopardy clause. People v. Bott, 2019 COA 100, 479 P.3d 29, aff'd, 2020 CO 86, 477 P.3d 137.

Unless the evidence at trial can establish factually distinct acts of possession, a defendant may be convicted only once for the simultaneous possession of multiple sexually exploitative videos so that a defendant's rights are not violated under the double jeopardy clause. People v. Abad, 2021 COA 6, 490 P.3d 1094.

In this case, the fact that sexually exploitative material was found on three different electronic devices or storage sites, standing alone, did not establish factually distinct offenses justifying multiple convictions and punishments. People v. Abad, 2021 COA 6, 490 P.3d 1094.

Subsection (3)(b) does not apply to the duplication of photographs by the prosecution for use by defense counsel in preparation for trial when the court has taken adequate precautions to limit their use. People v. Arapahoe County Court, 74 P.3d 429 (Colo. App. 2003).

"Arranges for" in subsection (3)(b) does not include either arranging for the distribution of material, or arranging to obtain material. People v. Mantos, 250 P.3d 586 (Colo. App. 2009).

The requisite mental state of "knowingly" in subsection (3) must be deemed to apply to every element of the offense of sexual exploitation of a child, including the element of age, absent a clear intent to the contrary. People v. Bath, 890 P.2d 269 (Colo. App. 1994).

Section 18-3-406 (1) eliminates the culpable mental state as to age prescribed by subsection (3), "knowingly", and replaces it with that of 18-3-406 (1), "lack of reasonable belief". People v. Bath, 890 P.2d 269 (Colo. App. 1994).

Section 18-3-406 (1), by providing for the affirmative defense of reasonable belief, manifests clear legislative intent that the culpable mental state of "knowingly" in subsection (3) does not apply to the age of the victim. People v. Bath, 890 P.2d 269 (Colo. App. 1994).

Even if the individual has not developed the film, a prosecution under subsection (3)(a) may be predicated upon an individual's photographing a child engaged in sexually explicit conduct. The critical question for the jury to resolve is whether the individual photographed the child for the purpose of producing a visual depiction of explicit sexual conduct. People v. St. James, 75 P.3d 1122 (Colo. App. 2002).

Evidence that a person has knowingly received prohibited material in an e-mail could be accepted as proof that the person knowingly possessed the material, because a person who knowingly receives an e-mail is aware of the nature of its content and has immediate and knowing dominion or control over it. Fabiano v. Armstrong, 141 P.3d 907 (Colo. App. 2006).

To determine whether a nude photo is for the purpose of sexual gratification or stimulation, a court should consider whether the display appears to be intended or designed to elicit a sexual response. The factors to consider are: (1) whether the focal point is on the breasts, genitals, or pubic area of the child; (2) whether the setting, pose, or attire depicted is sexually suggestive, considering the age of the child; and (3) whether the depiction appears to be staged to suggest a willingness to engage in sexual activity. People in Interest of T.B., 2019 CO 53, 445 P.3d 1049, cert. denied, __ U.S. __, 140 S. Ct. 876, 205 L. Ed. 2d 495 (2020).

Photos that focused on the breasts and pubic area and appeared to be staged to be sexually suggestive and suggested a willingness to engage in sexual activity were for the purpose of sexual gratification or stimulation. People in Interest of T.B., 2019 CO 53, 445 P.3d 1049, cert. denied, __ U.S. __, 140 S. Ct. 876, 205 L. Ed. 2d 495 (2020).

Definition of "erotic nudity" does not require that the "real or simulated overt sexual gratification or stimulation" be depicted in the material, but only that the overt sexual gratification or stimulation be of any of the persons involved in the activity. People v. Batchelor, 800 P.2d 599 (Colo. 1990).

A display or picture qualifies as "erotic nudity" under subsection (2)(d) if: (1) The display or picture depicts the human breasts or undeveloped or developing breast area of a child; and (2) the display or picture is for the purpose of real or simulated overt sexual gratification of stimulation of one or more of the persons involved. People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999).

"Prepares" as used in subsection (3)(b) means engaging in the process of creating any sexually exploitative material. People v. Mantos, 250 P.3d 586 (Colo. App. 2009).

The meaning of "publishes" and "distributes" in subsection (3)(b) includes downloading sexually exploitative material to a computer using peer-to-peer file sharing software and saving that material in shareable files or folders accessible by others using such software. People v. Robles-Sierra, 2018 COA 28, 488 P.3d 337.

For purposes of this section, "possession" means the non-exclusive control or dominion over sexually exploitative material. People v. Marsh, 396 P.3d 1 (Colo. App. 2011), aff'd, 2017 CO 10M, 389 P.3d 100.

When a computer user seeks out and views child pornography on the internet, the user possesses the images viewed. The internet cache of images qualifies as relevant evidence that the user viewed and possessed the images. Knowingly seeking out and viewing child pornography on the internet constitutes knowing possession under this section. Marsh v. People, 2017 CO 10M, 389 P.3d 100.

The presence of digital images in an internet cache can constitute evidence of a prior act of possession. There was enough evidence that the jury could infer that the defendant knowingly viewed the images in the internet cache. People v. Marsh, 396 P.3d 1 (Colo. App. 2011), aff'd, 2017 CO 10M, 389 P.3d 100.

The requirement of "possesses or controls any sexually exploitative material" in subsection (3)(b.5) does not contain any requirement that the material be retained for any minimum period of time. Fabiano v. Armstrong, 141 P.3d 907 (Colo. App. 2006).

"Offer" means making sexually exploitative material available or accessible to others. A defendant offers sexually exploitative material by knowingly leaving it in a computer share folder for other users to download. There was sufficient evidence that defendant knew he offered sexually exploitative material to others through a peer-to-peer file share system. People v. Rowe, 2012 COA 90, 318 P.3d 57.

A person who uses electronic media to solicit or orchestrate erotic images is a "person involved" for the purposes of subsection (2)(d). People in Interest of T.B., 2019 CO 53, 445 P.3d 1049, cert. denied, __ U.S. __, 140 S. Ct. 876, 205 L. Ed. 2d 495 (2020).

The phrase "one or more of the persons involved" in subsection (2)(d) is not limited to just the persons depicted in a photograph. The sexual gratification of the person need not be shown in the photograph, a person can gain sexual gratification from asking for and observing the photograph. People in Interest of T.B., 2016 COA 151M, 452 P.3d 36, aff'd, 2019 CO 53, 445 P.3d 1049, cert. denied, __ U.S. __, 140 S. Ct. 876, 205 L. Ed. 2d 495 (2020).

Court need not find that photos taken of minor by defendant were obscene in order for defendant to be prosecuted for sexual exploitation of a child. People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999).

Images that, when viewed objectively, are not "erotic nudity" do not become so merely because a particular person -- one not involved in the creation or distribution of the images -- looks at them for the purpose of sexual gratification. A particular viewer's purpose in looking at such images is irrelevant for the purpose of determining whether the images are erotic nudity. People v. Henley, 2017 COA 76, 488 P.3d 195.

Conduct proscribed by this section is different than conduct proscribed by 18-3-405, sexual assault on a child, and imposing different penalties for the two sections does not offend equal protection. People v. Slusher, 844 P.2d 1222 (Colo. App. 1992).

Defendant can be prosecuted under this section for photographing his 18-year-old wife having sex with a 15-year-old girl even if the defendant's wife could not be prosecuted for having sex with the girl pursuant to 18-3-402 (1)(e). People v. Campbell, 94 P.3d 1186 (Colo. App. 2004).

When there is nothing in the statute nor any evidence in the record that would support requiring defendants to inquire regarding the victim's age, the convictions of defendants cannot be sustained based solely on their failure to do so. People v. Bath, 890 P.2d 269 (Colo. App. 1994).

A person convicted of violating 18 U.S.C. 2252(a)(2) has engaged in conduct that, if committed in Colorado, would constitute sexual exploitation of a child in violation of subsection (3)(b.5) of this section and is, therefore, subject to the registration requirement of 16-22-103 (1)(b). Fabiano v. Armstrong, 141 P.3d 907 (Colo. App. 2006).

A person's prior conviction under subsection (3)(b.5) of this section relates to child pornography for purposes of 18 U.S.C. 2252A(b)(2), triggering the ten-year mandatory minimum sentence. United States v. Bennett, 823 F.3d 1316 (10th Cir.), cert. denied, 580 U.S. 926 (2016).

Court could properly impose consecutive sentences for multiple sexual exploitation convictions since the crime recognizes that each sexually exploitive image of a child constitutes a discrete act of victimization of the child. People v. Rabes, 258 P.3d 937 (Colo. App. 2010).