Statutes | Cherokee Code Part II Chapter 14 Article VII ยง 14-30.11 | 2019
(a)
Any person who:
(1)
Knowingly possesses or knowingly accesses with intent to view, any book, magazine periodical, film, videotape, computer disk, or any other material that contains an image of child pornography
(2)
Knowingly advertises, promotes, presents, distributes or solicits by any means including a computer any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is or contains an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct
(3)
Knowingly receives or distributes child pornography
shall be punished as provided in subsection (b).
(b)
Whoever violates, or attempts to or conspires to violate paragraph (1), (2) or (3) shall be punished by imprisonment for a period of not more than three years, by a fine of not more than $15,000.00, or both.
(c)
Definitions: For the purposes of this chapter, the term:
(1)
"Minor" means any person under the age of 18 years
(2)
a.
Except as provided in subparagraph b., "sexually explicit conduct" means actual or simulated:
1.
Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex
2.
Bestiality
3.
Masturbation
4.
Sadistic or masochistic abuse or
5.
Lascivious exhibition of the genitals or pubic area of any person.
b.
For purposes of subsection (8) of this section, "sexually explicit conduct" means:
1.
Graphic sexual intercourse, including genital-genital, oral- genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited
2.
Graphic or lascivious simulated:
A.
Bestiality
B.
Masturbation or
C.
Sadistic or masochistic abuse or
3.
Graphic or simulated lascivious exhibition of the genitals or pubic area of any person.
(3)
"Producing" means producing, directing, manufacturing, issuing, publishing, or advertising.
(4)
"Organization" means a person other than an individual.
(5)
"Visual depiction" includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format.
(6)
"Computer" has the meaning given that term in 18 USC 1030.
(7)
"Custody or control" includes temporary supervision over or responsibility for a minor whether legally or illegally obtained.
(8)
"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:
a.
The production of such visual depiction involves the use of a minor engaging in sexually explicit conduct
b.
Such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct or
c.
Such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
(9)
"Identifiable minor" means:
a.
A person:
1.
A.
Who was a minor at the time the visual depiction was created, adapted, or modified or
B.
Whose image as a minor was used in creating, adapting, or modifying the visual depiction and
2.
Who is recognizable as an actual person by the persons 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.
(10)
"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.
(11)
The term "indistinguishable" used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.
(d)
Affirmative defenses: It shall be an affirmative defense to a charge of violating subsection (a)(1) that the defendant:
(1)
Possessed less than three images of child pornography and
(2)
Promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof:
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.
(Ord. No. 210, 8-6-2012)