Different criminal offenses apply when a person knowingly views or photographs another person without that person's consent or knowledge while the person is engaging in sexual activity or is otherwise in a place where the person has a reasonable expectation of privacy. This includes, for example, Voyeurism in the first degree, which is a class C felony sex offense and a seriousness level II offense, as well as Voyeurism in the second degree, which is a gross misdemeanor.
Depending on the circumstances, separate criminal offenses may apply if a person photographs a minor engaged in sexually explicit conduct or otherwise deals in depictions of a minor engaged in sexually explicit conduct. "Sexually explicit conduct" means actual or simulated sexual intercourse, penetration, masturbation, sadomasochistic abuse, and other acts specified in statute. It also includes the depiction of the genitals or unclothed pubic or rectal areas of any minor or the unclothed breast of a female minor.
Sexual Exploitation of a Minor. A person commits the offense of Sexual Exploitation of a Minor if the person:
Sexual Exploitation of a Minor is a class B felony, a seriousness level IX offense, sex offense, and a "most serious offense," also referred to as a strike offense.
Dealing in Depictions of Minors. Separate from the offense of Sexual Exploitation of a Minor, different offenses apply to persons who finance, attempt to finance, develop, duplicate, publish, print, disseminate, exchange, sell, possess, or view visual or printed matter depicting minors engaged in sexually explicit conduct, also commonly referred to as child pornography. The penalties for the offenses vary, but all are class B or C felony sex offenses with seriousness levels ranging from IV to VII. In 2019 the state enacted the Responsible Teen Communications Act (Act), which exempted minors age 13 or older from these offenses where the depictions involve other minors. The Act established new offenses for minors who commit similar conduct involving visual or printed matter depicting other minors engaged in sexually explicit conduct. The penalties for a related offense range from gross misdemeanors to unranked class B felony sex offenses.
The Act provides certain specialized exceptions for when a minor deals in depictions of himself or herself engaged in sexually explicit conduct. If a minor finances or sells depictions of another minor in visual or printed matter depicting a minor engaged in sexually explicit conduct, it is an unranked class B felony. However, when the minor sells similar materials depicting himself or herself, it is a misdemeanor. More broadly, the Act provides that none of the offenses apply to a minor who finances, attempts to finance, develops, duplicates, publishes, prints, disseminates, exchanges, or possesses a visual or printed matter that depicts himself or herself engaged in an act of sexually explicit conduct. In those circumstances, the Act exempts the minor from criminal liability.
Sentencing. Crimes are classified as misdemeanors, gross misdemeanors, or felonies. The classification of an offense generally determines the maximum term of confinement (prison or jail) and/or fine for an offense. For each classification, the maximum terms of confinement and maximum fines are as follows:
| Classification | Maximum Confinement | Maximum Fine |
| Misdemeanor | 90 days | $1,000 |
| Gross Misdemeanor | 364 days | $5,000 |
| Class C Felony | 5 years | $10,000 |
| Class B Felony | 10 years | $20,000 |
| Class A Felony | Life | $50,000 |
When a person is convicted of a felony, the Sentencing Reform Act applies and determines a specific range of confinement within the statutory maximum. Ranges are determined by a sentencing grid. The sentencing grid provides a standard range of months for the sentence, based on both the severity, or "seriousness level," of the offense and the convicted person's "offender score," which is based on the offender's criminal history. Seriousness levels range from I to XVI, and offender scores can range from zero to nine or more points. A higher seriousness level or offender score results in a longer sentence. If an offense does not have a designated seriousness level, also referred to as an "unranked offense," then the maximum sentence is one year. A conviction of a felony sex offense may carry additional consequences, including the requirement to register as a sex offender.
Initiative Measure No. 593, approved by the voters in 1994 (also referred to as the "three strikes law"), requires a sentencing court to impose a sentence of imprisonment without the possibility of release if a person is deemed to be a "persistent offender." A person is a "persistent offender" if the person is convicted of a "most serious offense," and has at least two prior convictions for "most serious offenses" within a certain period of time. Alternatively, a person may be considered a "persistent offender" if the person is convicted of certain serious sex offenses on at least two separate occasions.
A "most serious offense," also referred to as a "strike offense," includes any class A felony, various class B felonies, which are primarily assault, sex, or kidnapping-related offenses, as well as any felony with a deadly weapon verdict, and any equivalent federal or out-of-state offense. Sexual Exploitation of a Minor is a strike offense.
Sexual Exploitation of a Minor. A new means of committing the offense of Sexual Exploitation of a Minor is established. A person commits the offense if the person knowingly causes a minor to be photographed or part of a live performance which depicts the minor engaged in sexually explicit conduct where the minor is unconscious or unaware of the photograph or recording.
The substitute bill specifies that when an individual takes a photograph or a video of another person committing the offense, the individual is not committing the offense. The individual must be acting in good faith to assist an investigator or prosecutor by documenting the offensive behavior.
Dealing in Depictions of Minors. The specialized exceptions for a minor dealing in depictions of himself or herself are modified. In order for the lesser misdemeanor penalty relating to a minor selling visual or printed matter depicting himself or herself to apply, the visual or printed matter must not also depict another minor engaged in sexually explicit conduct.
The broader exception from criminal liability is also modified to account for other minors depicted in the visual or printed matter. None of the offenses apply to a minor who finances, attempts to finance, develops, duplicates, publishes, prints, disseminates, exchanges, or possesses a visual or printed matter that depicts himself or herself engaged in an act of sexually explicit conduct, so long as the visual or printed matter does not also depict another minor engaged in sexually explicit conduct.
The substitute bill adds language clarifying that when an individual takes a photograph or a video of another person committing the offense, that individual is not committing the offense. The individual must be acting in good faith to assist an investigator or prosecutor by documenting the offensive behavior.
(In support) This bill is an attempt by the Legislature to protect children from trafficking and exploitation. Trafficking is a horrid and bone-chilling experience.
(Opposed) The bill is redundant with existing laws that protect minors from sexually explicit conduct. It would criminalize individuals who photograph or record children involved in sexually explicit conduct where the purpose of the recording is to expose the conduct, whether in sexual education classes or at functions that take place on taxpayer funded property.
(Other) The bill is confusing because it appears to update protections for minor children but would criminalize events where children are being coerced in adult entertainment events that are sexual in nature.