Virginia SB 731 (Child Pornography)

Summary

Defines "child pornography" to include sexually explicit visual material involving identifiable minors or minors who "do not have to actually exist," thus affecting both real and digitally created images.

Establishes penalties for production, solicitation, and financing of child pornography, escalating based on the minor’s age and the offender's age difference, with mandatory minimum sentences.

Permits the age of the depicted person to be inferred by the visual material's "text, title or appearance," confirming that proof of the subject's actual age is not required for prosecution.

Allows for venue of prosecution in the jurisdiction where the unlawful act occurs, the offender resides, or where the sexually explicit visual material is produced, stored, or possessed.

Notes that the provisions of the act may result in a net increase in periods of imprisonment, requiring the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000 for adult correctional facilities due to an unknown appropriation amount.

Amends the definition of child pornography to explicitly include visual material where "the minor depicted does not have to actually exist", thereby classifying the production and distribution of content created using synthetic media and generative AI as a prohibited act under Virginia law.

Be it enacted by the General Assembly of Virginia:

1. That § 18.2-374.1 of the Code of Virginia is amended and reenacted as follows:

§ 18.2-374.1. Production, publication, sale, financing, etc., of child pornography; presumption as to age.

A. For purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, "child pornography" means sexually explicit visual material that (i) utilizes or has as a subject an identifiable minor or (ii) depicts a minor in a state of nudity or engaged in sexual conduct, as those terms are defined in § 18.2-390, where such depiction is obscene as defined in § 18.2-372. An identifiable minor is a person who was a minor at the time the visual depiction was created, adapted, or modified; or whose image as a minor was used in creating, adapting or modifying the visual depiction; and 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 shall not be construed to require proof of the actual identity of the identifiable minor. For the purposes of clause (ii), the minor depicted does not have to actually exist.

For the purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, the term "sexually explicit visual material" means a picture, photograph, drawing, sculpture, motion picture film, digital image, including such material stored in a computer's temporary Internet cache when three or more images or streaming videos are present, or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent.

Imposes criminal liability and mandatory minimum prison sentences for producing, financing, or participating in child pornography, including offenses involving synthetic or digitally generated depictions covered by the statute.

B. A person shall be guilty of production of child pornography who:

1. Accosts, entices or solicits a person less than 18 years of age with intent to induce or force such person to perform in or be a subject of child pornography; or

2. Produces or makes or attempts or prepares to produce or make child pornography; or

3. Who knowingly takes part in or participates in the filming, photographing, or other production of child pornography by any means; or

4. Knowingly finances or attempts or prepares to finance child pornography.

5. [Repealed.]

B1. [Repealed.]

C1. Any person who violates this section, when the subject of the child pornography is a child less than 15 years of age, shall be punished by not less than five years nor more than 30 years in a state correctional facility. However, if the person is at least seven years older than the subject of the child pornography the person shall be punished by a term of imprisonment of not less than five years nor more than 30 years in a state correctional facility, five years of which shall be a mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this section where the person is at least seven years older than the subject shall be punished by a term of imprisonment of not less than 15 years nor more than 40 years, 15 years of which shall be a mandatory minimum term of imprisonment.

C2. Any person who violates this section, when the subject of the child pornography is a person at least 15 but less than 18 years of age, shall be punished by not less than one year nor more than 20 years in a state correctional facility. However, if the person is at least seven years older than the subject of the child pornography the person shall be punished by term of imprisonment of not less than three years nor more than 30 years in a state correctional facility, three years of which shall be a mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this section when he is at least seven years older than the subject shall be punished by a term of imprisonment of not less than 10 years nor more than 30 years, 10 years of which shall be a mandatory minimum term of imprisonment.

C3. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.

Establishes an evidentiary presumption that apparent minors in sexually explicit visual material are under 18, sets broad venue rules for prosecution based on where the material is produced/stored/possessed, and notes a minimum fiscal impact from increased incarceration.

D. For the purposes of this section it may be inferred by text, title or appearance that a person who is depicted as or presents the appearance of being less than 18 years of age in sexually explicit visual material is less than 18 years of age.

E. Venue for a prosecution under this section may lie in the jurisdiction where the unlawful act occurs, where the alleged offender resides, or where any sexually explicit visual material associated with a violation of this section is produced, reproduced, found, stored, or possessed.

2. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1 of the Acts of Assembly of 2023, Special Session I, requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.