Sexual performance by a child; child sexual abuse material; penalties.

(1) As used in this section, the following definitions shall apply:

(a) “Child” or “minor” means any person, whose identity is known or unknown, younger than 18 years of age.

(b) “Child sexual abuse material” means:

1. Any image depicting a minor engaged in sexual conduct; or

2. Any image that has been created, altered, adapted, or modified by electronic, mechanical, or other means, to portray an identifiable minor engaged in sexual conduct.

(c) “Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

(d) “Female genitals” includes the labia minora, labia majora, clitoris, vulva, hymen, and vagina.

(e) “Identifiable minor” means a person:

1. Who was a minor at the time the image was created, altered, adapted, or modified, or whose image as a minor was used in the creating, altering, adapting, or modifying of the image; and

2. 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.

The term may not be construed to require proof of the actual identity of the identifiable minor.

(f) “Intentionally view” means to deliberately, purposefully, and voluntarily view. Proof of intentional viewing requires establishing more than a single image, motion picture, exhibition, show, image, data, computer depiction, representation, or other presentation over any period of time.

(g) “Performance” means any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.

(h) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, transmute, publish, distribute, circulate, disseminate, present, exhibit, send, post, share, or advertise or to offer or agree to do the same.

(i) “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself.

(j) “Sexual battery” means oral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female genital penetration of another by any other object; however, “sexual battery” does not include an act done for a bona fide medical purpose.

(k) “Sexual bestiality” means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or female genitals of the other.

(l)1. “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual or simulated lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

2. As used in subparagraph 1., “actual or simulated lewd exhibition of the genitals” may be evidenced by the overall content of an image, taking into account the age of the minor depicted and, including, but not limited to, whether:

a. The focal point of the image is on the minor’s genitals;

b. The setting of the image is sexually suggestive or in a place or pose generally associated with sexual conduct;

c. The minor is depicted in an unnatural pose, or in inappropriate attire, considering the age of the minor;

d. The image suggests sexual coyness or a willingness to engage in sexual conduct; or

e. The image is intended or designed to elicit a sexual response in the viewer.

(m) “Sexual performance” means any performance or part thereof which includes sexual conduct by a child.

(n) “Simulated” means the explicit depiction of conduct set forth in paragraph (l) which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

(2)(a) A person is guilty of the use of a child in a sexual performance if, knowing the character and content thereof, he or she employs, authorizes, or induces a child to engage in a sexual performance or, being a parent, legal guardian, or custodian of such child, consents to the participation by such child in a sexual performance. A person who violates this paragraph commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Except as provided in subsection (7), a person 18 years of age or older at the time of the offense who is convicted of a violation of this paragraph must be sentenced to a mandatory minimum term of imprisonment of 15 years.

(b) A person is guilty of aggravated use of a child in a sexual performance if, knowing the character and content thereof, he or she employs, authorizes, or induces a child younger than 12 years of age to engage in a sexual performance. A person who violates this paragraph commits a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A person 18 years of age or older at the time of the offense who is convicted of a violation of this paragraph must be sentenced to a mandatory minimum term of imprisonment of 25 years.

(3) A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child. A person who violates this subsection commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Except as provided in subsection (7), a person 18 years of age or older at the time of the offense who is convicted of a violation of this subsection must be sentenced to a mandatory minimum term of imprisonment of 5 years.

(4) It is unlawful for any person to possess with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes child sexual abuse material. The possession of three or more copies of such photograph, motion picture, representation, or presentation is prima facie evidence of an intent to promote. A person who violates this subsection commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(5)(a) It is unlawful for any person to knowingly solicit, possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, he or she knows to include child sexual abuse material. The solicitation, possession, control, or intentional viewing of each such photograph, motion picture, exhibition, show, image, data, computer depiction, representation, or presentation is a separate offense. If such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation includes child sexual abuse material depicting more than one child, then each such child in each such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation that is knowingly solicited, possessed, controlled, or intentionally viewed is a separate offense. A person who violates this paragraph commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Paragraph (a) does not apply to any material solicited, possessed, controlled, or intentionally viewed as part of a law enforcement investigation.

(6) Prosecution of a person for an offense under this section does not preclude prosecution of that person in this state for a violation of any other law of this state, including a law providing for greater penalties than prescribed in this section or any other crime punishing the sexual performance or the sexual exploitation of children.

(7) A court is not required to impose a mandatory minimum term of imprisonment for a violation of this section if the court makes the following written findings related to the sexual performance that forms the basis of the violation:

(a) The child depicted in the sexual performance was 14 years of age or older at the time the sexual performance was created;

(b) The sexual performance was created with the depicted child’s permission;

(c) The offender was not more than 4 years older than the depicted child at the time the sexual performance was created; and

(d) The offender did not promote the sexual performance to any third party.