76-5c-205. Distributing material harmful to minors.
(1) Terms defined in Sections 76-1-101.5, 76-5c-101, and 76-5c-201 apply to this section.
(2) An actor commits distributing material harmful to minors if the actor:
(a)
(i) intentionally distributes or offers to distribute, or exhibits or offers to exhibit, material harmful to minors to an individual;
(ii) intentionally produces, performs, or directs any performance, before an individual that is harmful to minors; or
(iii) intentionally participates in a performance before an individual that is harmful to minors; and
(b)
(i) knows or believes the individual described in Subsection (2)(a) is a minor; or
(ii) negligently fails to determine if the individual described in Subsection (2)(a) is a minor and the individual is a minor.
(3)
(a) Except as provided in Subsection (3)(b)(iii), a violation of Subsection (2) is a second degree felony if the actor is 18 years old or older and has previously been convicted or adjudicated of a violation of Subsection (2) and is subject to:
(i) a minimum mandatory fine of not less than $5,000, plus $10 for each article exhibited up to the maximum allowed by law; and
(ii) incarceration, without suspension of sentence, for a term of not less than one year.
(b) A violation of Subsection (2) is a third degree felony if:
(i) except as provided in Subsection (3)(c), the actor is 18 years old or older and is subject to:
(A) a minimum mandatory fine of not less than $1,000, plus $10 for each article exhibited up to the maximum allowed by law; and
(B) incarceration, without suspension of sentence, for a term of not less than 14 days;
(ii) the actor is younger than 18 years old and has previously been convicted or adjudicated of a violation of Subsection (2); or
(iii)
(A) the actor is 18 years old or older;
(B) the minor or the individual the actor believed to be a minor described in Subsection (2) is 16 years old or older, and the actor is less than seven years older than the minor or the individual the actor believed to be a minor at the time of the offense; and
(C) the actor has previously been convicted or adjudicated of a violation of Subsection (2).
(c) Except as provided in Subsection (3)(b)(iii), a violation of Subsection (2) is a class A misdemeanor if the actor is 18 years old or older and the minor or the individual the actor believed to be a minor described in Subsection (2) is 16 years old or older, and the actor is less than seven years older than the minor or the individual the actor believed to be a minor at the time of the offense.
(d) Except as provided in Subsection (3)(b)(ii), a violation of Subsection (2) is a class A misdemeanor if the actor is 16 years old or 17 years old.
(e) Except as provided in Subsection (3)(b)(ii), a violation of Subsection (2) is a class B misdemeanor if the actor is younger than 16 years old.
(4)
(a) This section does not apply to an Internet service provider, a provider of an electronic communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service, information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined in 47 U.S.C. Sec. 522, if:
(i) the distribution of pornographic material by the Internet service provider occurs only incidentally through the provider's function of:
(A) transmitting or routing data from one person to another person; or
(B) providing a connection between one person and another person;
(ii) the provider does not intentionally aid or abet in the distribution of the pornographic material; and
(iii) the provider does not knowingly receive from or through a person who distributes the pornographic material a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute the pornographic material.
(b) This section does not apply to a hosting company if:
(i) the distribution of pornographic material by the hosting company occurs only incidentally through the hosting company's function of providing data storage space or data caching to a person;
(ii) the hosting company does not intentionally engage, aid, or abet in the distribution of the pornographic material; and
(iii) the hosting company does not knowingly receive from or through a person who distributes the pornographic material 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 pornographic material.
(5) An Internet service provider is not negligent under this section if the Internet service provider complies with Section 76-5c-402.
(6) It is an affirmative defense to a prosecution for a violation of this section if the violation arises from displaying or exhibiting an outer portion of material that the material is:
(a) in a sealed opaque wrapper that covers at least the lower 2/3 of the material so that the lower 2/3 of the material is concealed from view;
(b) placed behind a blinder rack; or
(c)
(i) displayed in an area from which a minor is physically excluded; and
(ii) the material cannot be viewed by the minor from an area where the minor is allowed.
(7) Subsections (3)(a) and (3)(b)(i) supersede Section 77-18-105.
Amended by Chapter 26, 2026 General Session
