Florida Senate - 2015 CS for CS for SB 538 By the Committees on Rules; and Criminal Justice; and Senator Simmons 595-03793-15 2015538c2 1 A bill to be entitled 2 An act relating to the disclosure of sexually explicit 3 images; creating s. 847.0136, F.S.; providing 4 definitions; prohibiting an individual from 5 electronically disclosing a sexually explicit image of 6 an identifiable person with the intent to harass such 7 person if the individual knows or should have known 8 that such person did not consent to the disclosure; 9 providing criminal penalties; providing for 10 jurisdiction; providing exceptions; providing civil 11 remedies; exempting providers of specified services; 12 amending s. 921.244, F.S.; requiring a court to order 13 that a person convicted of such offense be prohibited 14 from having contact with the victim; providing 15 criminal penalties for a violation of such order; 16 providing that criminal penalties for certain offenses 17 run consecutively with a sentence imposed for a 18 violation of s. 847.0136, F.S.; reenacting s. 19 784.048(7), F.S., to incorporate the amendment made to 20 s. 921.244, F.S., in a reference thereto; providing an 21 effective date. 22 23 Be It Enacted by the Legislature of the State of Florida: 24 25 Section 1. Section 847.0136, Florida Statutes, is created 26 to read: 27 847.0136 Prohibited electronic disclosure of sexually 28 explicit images; penalties; jurisdiction.— 29 (1) As used in this section, the term: 30 (a) “Disclose” means to publish, post, distribute, exhibit, 31 advertise, offer, or transfer, or cause to be published, posted, 32 distributed, exhibited, advertised, offered, or transferred. 33 (b) “Harass” means to engage in conduct directed at a 34 specific person which causes substantial emotional distress to 35 that person and serves no legitimate purpose. 36 (c) “Identifiable person” means an individual in a sexually 37 explicit image who can be identified through: 38 1. Recognition of his or her face as depicted in the 39 sexually explicit image; or 40 2. Personal identification information that accompanies or 41 is associated with the sexually explicit image. 42 (d) “Personal identification information” has the same 43 meaning as provided in s. 817.568. 44 (e) “Sexually explicit image” means a private photograph, 45 film, videotape, recording, or other reproduction of: 46 1. Nudity; or 47 2. Sexual intercourse, including, but not limited to, oral 48 sexual intercourse or anal sexual intercourse. 49 (2) An individual may not intentionally and knowingly 50 disclose a sexually explicit image of an identifiable person or 51 that contains descriptive information in a form that conveys the 52 personal identification information of the person to a social 53 networking service or a website, or by means of any other 54 electronic medium, with the intent to harass such person, if the 55 individual knows or should have known that the person depicted 56 in the sexually explicit image did not consent to such 57 disclosure. 58 (3)(a) Except as provided in paragraph (b), an individual 59 who violates this section commits a misdemeanor of the first 60 degree, punishable as provided in s. 775.082 or s. 775.083. 61 (b) An individual who commits a second or subsequent 62 violation under this section commits a felony of the third 63 degree punishable as provided in s. 775.082, s.775.083, or 64 s.775.084. 65 (4) A violation of this section is committed within this 66 state if any conduct that is an element of the offense described 67 in subsection (2), or any harm to the identifiable person 68 resulting from the offense described in subsection (2), occurs 69 within this state. 70 (5) This section does not apply to the disclosure of a 71 sexually explicit image for: 72 (a) The reporting, investigation, and prosecution of an 73 alleged crime for law enforcement purposes. 74 (b) Voluntary and consensual purposes that, from all facts 75 and circumstances, were not intended to be nor remain 76 confidential, including in public or commercial settings. 77 (6) An aggrieved person may initiate a civil action against 78 a person who violates this section to obtain all appropriate 79 relief in order to prevent or remedy a violation of this 80 section, including: 81 (a) Injunctive relief. 82 (b) Monetary damages to include $5,000 or actual damages 83 incurred as a result of a violation of this section, whichever 84 is greater. 85 (c) Reasonable attorney fees and costs. 86 (7) This section does not impose liability on a provider of 87 an interactive computer service as defined in 47 U.S.C. s. 88 230(f), an information service as defined in 47 U.S.C. s. 153, 89 or communications services as defined in s. 202.11, for: 90 (a) The transmission, storage, or caching of electronic 91 communications or messages of other persons; 92 (b) Other related telecommunications or commercial mobile 93 radio service; or 94 (c) Content provided by another person. 95 Section 2. Section 921.244, Florida Statutes, is amended to 96 read: 97 921.244 Order of no contact; penalties.— 98 (1) At the time of sentencing an offender convicted of a 99 violation of s. 794.011, s. 800.04, s. 847.0135(5), s. 847.0136, 100 or any offense in s. 775.084(1)(b)1.a.-o., the court shall order 101 that the offender be prohibited from having any contact with the 102 victim, directly or indirectly, including through a third 103 person, for the duration of the sentence imposed. The court may 104 reconsider the order upon the request of the victim if the 105 request is made at any time after the victim has attained 18 106 years of age. In considering the request, the court shall 107 conduct an evidentiary hearing to determine whether a change of 108 circumstances has occurred which warrants a change in the court 109 order prohibiting contact and whether it is in the best interest 110 of the victim that the court order be modified or rescinded. 111 (2) An
Anyoffender who violates a court order issued under 112 this section commits a felony of the third degree, punishable as 113 provided in s. 775.082, s. 775.083, or s. 775.084. 114 (3) The punishment imposed under this section shall run 115 consecutive to any former sentence imposed for a conviction for 116 any offense under s. 794.011, s. 800.04, s. 847.0135(5), s. 117 847.0136, or any offense in s. 775.084(1)(b)1.a.-o. 118 Section 3. For the purpose of incorporating the amendment 119 made by this act to section 921.244, Florida Statutes, in a 120 reference thereto, subsection (7) of section 784.048, Florida 121 Statutes, is reenacted to read: 122 784.048 Stalking; definitions; penalties.— 123 (7) A person who, after having been sentenced for a 124 violation of s. 794.011, s. 800.04, or s. 847.0135(5) and 125 prohibited from contacting the victim of the offense under s. 126 921.244, willfully, maliciously, and repeatedly follows, 127 harasses, or cyberstalks the victim commits the offense of 128 aggravated stalking, a felony of the third degree, punishable as 129 provided in s. 775.082, s. 775.083, or s. 775.084. 130 Section 4. This act shall take effect October 1, 2015.