Fabricated depictions/minors

AN ACT Relating to offenses involving fabricated depictions of 1
minors; amending RCW 9.68A.050, 9.68A.053, 9.68A.060, 9.68A.070, 2
9.68A.075, and 9.68A.110; reenacting and amending RCW 9.68A.011; and 3
creating a new section. 4
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:5
NEW SECTION. Sec. 1. The legislature finds that rapid 6
advancements in artificial intelligence and other digital tools have 7
enabled users to easily create or alter images in a realistic manner, 8
resulting in the widespread proliferation of fabricated depictions 9
that are virtually indistinguishable from authentic images.10
The legislature further finds that images of child sexual abuse 11
have been reported in training datasets for artificial intelligence 12
image generation, and that artificial intelligence and other digital 13
tools are increasingly capable of generating realistic images of 14
minors engaging in sexually explicit conduct. 15
The legislature further finds that artificial intelligence and 16
other digital tools have introduced significant barriers to the 17
detection and prosecution of crimes involving depictions of minors 18
engaging in sexually explicit conduct, including by contributing to 19
the increased volume of child sexual abuse material available online, 20
facilitating the alteration of real images of child sexual abuse to 21
S-0345.1
SENATE BILL 5105
State of Washington 69th Legislature 2025 Regular Session
By Senators Orwall, Christian, Dhingra, Nobles, Salomon, Wellman, and
C. Wilson
Prefiled 12/23/24. Read first time 01/13/25. Referred to Committee
on Law & Justice.
p. 1 SB 5105
evade conventional detection methods, and subverting conventional 1
digital detection tools such as hash match identification.2
The legislature further finds that even where a fabricated 3
depiction of a minor engaging in sexually explicit conduct does not 4
depict an identifiable victim, exposure to such material may 5
nonetheless desensitize the creator and viewers to the sexual 6
exploitation and abuse of minors, distort perceptions of healthy 7
sexuality and relationships, and increase the likelihood of future 8
victimization. 9
The legislature further finds that it has a legitimate and 10
compelling interest in preventing the sexual exploitation and abuse 11
of children, and that even fabricated depictions of such conduct are 12
patently offensive and may be regulated without infringing on 13
constitutionally protected activity. 14
Therefore, the legislature intends to expand Washington's 15
existing prohibitions against fabricated depictions of minors engaged 16
in sexually explicit conduct to include circumstances where the 17
depicted minor is not identifiable. 18
Sec. 2. RCW 9.68A.011 and 2024 c 88 s 1 are each reenacted and 19
amended to read as follows: 20
Unless the context clearly indicates otherwise, the definitions 21
in this section apply throughout this chapter. 22
(1) "Digitization" means creating or altering any visual or 23
printed matter to depict ((an identifiable )) a minor in a realistic 24
manner utilizing images of another person or computer-generated 25
images, regardless of whether such creation or alteration is 26
accomplished manually or through an automated process. "Digitization" 27
includes, but is not limited to, creation or alteration of any visual 28
or printed matter by using artificial intelligence.29
(2) "Fabricated ((depiction of an identifiable minor" and 30
"fabricated depiction" mean )) depiction" means any visual or printed 31
matter that ((depicts)) was created or altered by digitization to 32
depict a minor ((who is identifiable from the matter itself or from 33
information displayed with or otherwise connected to the matter, and 34
that was created or altered by digitization to depict the minor )) 35
engaging in sexually explicit conduct ((in which the minor did not 36
actually engage)), and that is obscene. 37
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(3) An "internet session" means a period of time during which an 1
internet user, using a specific internet protocol address, visits or 2
is logged into an internet site for an uninterrupted period of time.3
(4) "Live performance" means any play, show, skit, dance, or 4
other exhibition performed or presented to or before an audience of 5
one or more, with or without consideration. 6
(5) "Minor" means any person under ((eighteen)) 18 years of age.7
(6) "Obscene" shall have and include all those meanings which are 8
assigned to it under the common law.9
(7) To "photograph" means to make a print, negative, slide, 10
digital image, motion picture, or videotape. A "photograph" means 11
anything tangible or intangible produced by photographing.12
(((7))) (8) "Sexually explicit conduct" means actual or 13
simulated: 14
(a) Sexual intercourse, including genital-genital, oral-genital, 15
anal-genital, or oral-anal, whether between persons of the same or 16
opposite sex or between humans and animals; 17
(b) Penetration of the vagina or rectum by any object;18
(c) Masturbation; 19
(d) Sadomasochistic abuse; 20
(e) Defecation or urination for the purpose of sexual stimulation 21
of the viewer; 22
(f) Depiction of the genitals or unclothed pubic or rectal areas 23
of any minor, or the unclothed breast of a female minor, for the 24
purpose of sexual stimulation of the viewer. For the purposes of this 25
subsection (((7))) (8)(f), it is not necessary that the minor know 26
that he or she is participating in the described conduct, or any 27
aspect of it; and 28
(g) Touching of a person's clothed or unclothed genitals, pubic 29
area, buttocks, or breast area for the purpose of sexual stimulation 30
of the viewer. 31
(((8))) (9) "Visual or printed matter" means any photograph or 32
other material that contains a reproduction of a photograph. "Visual 33
or printed matter" includes, but is not limited to, any such 34
photograph or other material that constitutes a fabricated depiction 35
((of an identifiable minor)). 36
Sec. 3. RCW 9.68A.050 and 2019 c 128 s 3 are each amended to 37
read as follows: 38
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(1)(a) A person ((eighteen)) 18 years of age or older commits the 1
crime of dealing in depictions of a minor engaged in sexually 2
explicit conduct in the first degree when he or she:3
(i) Knowingly develops, duplicates, publishes, prints, 4
disseminates, exchanges, finances, attempts to finance, or sells a 5
visual or printed matter that depicts a minor engaged in an act of 6
sexually explicit conduct as defined in RCW 9.68A.011(((4))) (8) (a) 7
through (e); or 8
(ii) Possesses with intent to develop, duplicate, publish, print, 9
disseminate, exchange, or sell any visual or printed matter that 10
depicts a minor engaged in an act of sexually explicit conduct as 11
defined in RCW 9.68A.011(((4))) (8) (a) through (e).12
(b) Dealing in depictions of a minor engaged in sexually explicit 13
conduct in the first degree is a class B felony punishable under 14
chapter 9A.20 RCW. 15
(c) For the purposes of determining the unit of prosecution under 16
this subsection, each depiction or image of visual or printed matter 17
constitutes a separate offense. 18
(2)(a) A person ((eighteen)) 18 years of age or older commits the 19
crime of dealing in depictions of a minor engaged in sexually 20
explicit conduct in the second degree when he or she:21
(i) Knowingly develops, duplicates, publishes, prints, 22
disseminates, exchanges, finances, attempts to finance, or sells any 23
visual or printed matter that depicts a minor engaged in an act of 24
sexually explicit conduct as defined in RCW 9.68A.011(((4))) (8) (f) 25
or (g); or 26
(ii) Possesses with intent to develop, duplicate, publish, print, 27
disseminate, exchange, or sell any visual or printed matter that 28
depicts a minor engaged in an act of sexually explicit conduct as 29
defined in RCW 9.68A.011(((4))) (8) (f) or (g). 30
(b) Dealing in depictions of a minor engaged in sexually explicit 31
conduct in the second degree is a class B felony punishable under 32
chapter 9A.20 RCW. 33
(c) For the purposes of determining the unit of prosecution under 34
this subsection, each incident of dealing in one or more depictions 35
or images of visual or printed matter constitutes a separate offense.36
Sec. 4. RCW 9.68A.053 and 2019 c 128 s 4 are each amended to 37
read as follows: 38
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(1)(a)(i) A person under the age of ((eighteen)) 18 commits the 1
crime of a minor dealing in depictions of another minor ((thirteen)) 2
13 years of age or older engaged in sexually explicit conduct in the 3
first degree when he or she knowingly distributes, publishes, 4
transfers, disseminates, or exchanges a visual or printed matter that 5
depicts another minor ((thirteen)) 13 years of age or older engaged 6
in an act of sexually explicit conduct as defined in RCW 7
9.68A.011(((4))) (8) (a) through (e). 8
(ii) Minor dealing in depictions of another minor ((thirteen)) 13 9
years of age or older engaged in sexually explicit conduct in the 10
first degree is a gross misdemeanor. 11
(b)(i) A person under the age of ((eighteen)) 18 commits the 12
crime of a minor dealing in depictions of another minor ((thirteen)) 13
13 years of age or older engaged in sexually explicit conduct in the 14
second degree when he or she knowingly distributes, publishes, 15
transfers, disseminates, or exchanges a visual or printed matter that 16
depicts another minor ((thirteen)) 13 years of age or older engaged 17
in an act of sexually explicit conduct as defined in RCW 18
9.68A.011(((4))) (8) (f) or (g). 19
(ii) Minor dealing in depictions of another minor ((thirteen)) 13 20
years of age or older engaged in sexually explicit conduct in the 21
second degree is a misdemeanor. 22
(2)(a) A person under age ((eighteen)) 18 commits the crime of 23
minor dealing in depictions of another minor ((twelve)) 12 years of 24
age or younger engaged in sexually explicit conduct in the first 25
degree when he or she: 26
(i) Knowingly develops, duplicates, publishes, prints, 27
disseminates, exchanges, finances, attempts to finance, or sells a 28
visual or printed matter that depicts another minor ((twelve)) 12 29
years of age or younger engaged in an act of sexually explicit 30
conduct as defined in RCW 9.68A.011(((4))) (8) (a) through (e); or31
(ii) Possesses with intent to develop, duplicate, publish, print, 32
disseminate, exchange, or sell any visual or printed matter that 33
depicts another minor ((twelve)) 12 years of age or younger engaged 34
in an act of sexually explicit conduct as defined in RCW 35
9.68A.011(((4))) (8) (a) through (e). 36
(b) Minor dealing in depictions of another minor ((twelve)) 12 37
years of age or younger engaged in sexually explicit conduct in the 38
first degree is a class B felony punishable under chapter 9A.20 RCW.39
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(3)(a) A person under age ((eighteen)) 18 commits the crime of 1
minor dealing in depictions of another minor ((twelve)) 12 years of 2
age or younger engaged in sexually explicit conduct in the second 3
degree when he or she: 4
(i) Knowingly develops, duplicates, publishes, prints, 5
disseminates, exchanges, finances, attempts to finance, or sells any 6
visual or printed matter that depicts another minor ((twelve)) 12 7
years of age or younger engaged in an act of sexually explicit 8
conduct as defined in RCW 9.68A.011(((4))) (8) (f) or (g); or9
(ii) Possesses with intent to develop, duplicate, publish, print, 10
disseminate, exchange, or sell any visual or printed matter that 11
depicts another minor ((twelve)) 12 years of age or younger engaged 12
in an act of sexually explicit conduct as defined in RCW 13
9.68A.011(((4))) (8) (f) or (g). 14
(b) Minor dealing in depictions of a minor ((twelve)) 12 years of 15
age or younger engaged in sexually explicit conduct in the second 16
degree is a class B felony punishable under chapter 9A.20 RCW.17
(4)(a) Any person under the age of ((eighteen)) 18 commits the 18
crime of minor financing or selling depictions of another minor 19
engaged in sexually explicit conduct when he or she finances, 20
attempts to finance, or sells a visual or printed matter that depicts 21
a minor engaged in an act of sexually explicit conduct as defined in 22
RCW 9.68A.011(((4))) (8) (a) through (g). 23
(b) Minor financing or selling depictions of another minor 24
engaged in sexually explicit conduct is a class B felony punishable 25
under chapter 9A.20 RCW. 26
(5)(a) A person under the age of ((eighteen)) 18 commits the 27
crime of minor selling depictions of himself or herself engaged in 28
sexually explicit conduct when he or she sells a visual or printed 29
matter that depicts himself or herself engaged in an act of sexually 30
explicit conduct as defined in RCW 9.68A.011(((4))) (8) (a) through 31
(g). 32
(b) Minor selling depictions of himself or herself engaged in 33
sexually explicit conduct is a misdemeanor. 34
(6) This section does not apply to a person under ((eighteen)) 18 35
years of age who finances, attempts to finance, develops, duplicates, 36
publishes, prints, disseminates, exchanges, or possesses a visual or 37
printed matter that depicts himself or herself engaged in an act of 38
sexually explicit conduct as defined in RCW 9.68A.011(((4))) (8).39
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(7) For the purposes of determining the unit of prosecution under 1
this section, each depiction or image of visual or printed matter 2
constitutes a separate offense. 3
Sec. 5. RCW 9.68A.060 and 2019 c 128 s 5 are each amended to 4
read as follows: 5
(1)(a) Except as provided in subsections (3) and (4) of this 6
section, a person commits the crime of sending or bringing into the 7
state depictions of a minor engaged in sexually explicit conduct in 8
the first degree when he or she knowingly sends or causes to be sent, 9
or brings or causes to be brought, into this state for sale or 10
distribution, a visual or printed matter that depicts a minor engaged 11
in sexually explicit conduct as defined in RCW 9.68A.011(((4))) (8) 12
(a) through (e). 13
(b) Sending or bringing into the state depictions of a minor 14
engaged in sexually explicit conduct in the first degree is a class B 15
felony punishable under chapter 9A.20 RCW. 16
(c) For the purposes of determining the unit of prosecution under 17
this subsection, each depiction or image of visual or printed matter 18
constitutes a separate offense. 19
(2)(a) Except as provided in subsections (3) and (4) of this 20
section, a person commits the crime of sending or bringing into the 21
state depictions of a minor engaged in sexually explicit conduct in 22
the second degree when he or she knowingly sends or causes to be 23
sent, or brings or causes to be brought, into this state for sale or 24
distribution, any visual or printed matter that depicts a minor 25
engaged in sexually explicit conduct as defined in RCW 26
9.68A.011(((4))) (8) (f) or (g). 27
(b) Sending or bringing into the state depictions of a minor 28
engaged in sexually explicit conduct in the second degree is a class 29
B felony punishable under chapter 9A.20 RCW. 30
(c) For the purposes of determining the unit of prosecution under 31
this subsection, each incident of sending or bringing into the state 32
one or more depictions or images of visual or printed matter 33
constitutes a separate offense. 34
(3) This section does not apply to a minor who knowingly sends or 35
causes to be sent, or brings or causes to be brought, into this state 36
for distribution, visual or printed matter depicting any minor 37
((thirteen)) 13 years of age or older engaged in sexually explicit 38
conduct. 39
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(4) This section does not apply to a person under ((thirteen)) 13 1
years of age who knowingly sends or causes to be sent, or brings or 2
causes to be brought, into this state for distribution, visual or 3
printed matter depicting himself or herself engaged in sexually 4
explicit conduct. 5
Sec. 6. RCW 9.68A.070 and 2019 c 128 s 6 are each amended to 6
read as follows: 7
(1)(a) Except as provided in subsections (3) and (4) of this 8
section, a person commits the crime of possession of depictions of a 9
minor engaged in sexually explicit conduct in the first degree when 10
he or she knowingly possesses a visual or printed matter depicting a 11
minor engaged in sexually explicit conduct as defined in RCW 12
9.68A.011(((4))) (8) (a) through (e). 13
(b) Possession of depictions of a minor engaged in sexually 14
explicit conduct in the first degree is a class B felony punishable 15
under chapter 9A.20 RCW. 16
(c) For the purposes of determining the unit of prosecution under 17
this subsection, each depiction or image of visual or printed matter 18
constitutes a separate offense. 19
(2)(a) Except as provided in subsections (3) and (4) of this 20
section, a person commits the crime of possession of depictions of a 21
minor engaged in sexually explicit conduct in the second degree when 22
he or she knowingly possesses any visual or printed matter depicting 23
a minor engaged in sexually explicit conduct as defined in RCW 24
9.68A.011(((4))) (8) (f) or (g). 25
(b) Possession of depictions of a minor engaged in sexually 26
explicit conduct in the second degree is a class B felony punishable 27
under chapter 9A.20 RCW. 28
(c) For the purposes of determining the unit of prosecution under 29
this subsection, each incident of possession of one or more 30
depictions or images of visual or printed matter constitutes a 31
separate offense. 32
(3) This section does not apply to a minor's possession of visual 33
or printed matter depicting any minor ((thirteen)) 13 years of age or 34
older engaged in sexually explicit conduct. 35
(4) This section does not apply to a person under ((thirteen)) 13 36
years of age in possession of visual or printed matter depicting 37
himself or herself engaged in sexually explicit conduct.38
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Sec. 7. RCW 9.68A.075 and 2019 c 128 s 7 are each amended to 1
read as follows: 2
(1) Except as provided in subsections (5) and (6) of this 3
section, a person who intentionally views over the internet visual or 4
printed matter depicting a minor engaged in sexually explicit conduct 5
as defined in RCW 9.68A.011(((4))) (8) (a) through (e) is guilty of 6
viewing depictions of a minor engaged in sexually explicit conduct in 7
the first degree, a class B felony punishable under chapter 9A.20 8
RCW. 9
(2) Except as provided in subsections (5) and (6) of this 10
section, a person who intentionally views over the internet visual or 11
printed matter depicting a minor engaged in sexually explicit conduct 12
as defined in RCW 9.68A.011(((4))) (8) (f) or (g) is guilty of 13
viewing depictions of a minor engaged in sexually explicit conduct in 14
the second degree, a class C felony punishable under chapter 9A.20 15
RCW. 16
(3) For the purposes of determining whether a person 17
intentionally viewed over the internet a visual or printed matter 18
depicting a minor engaged in sexually explicit conduct in subsection 19
(1) or (2) of this section, the trier of fact shall consider the 20
title, text, and content of the visual or printed matter, as well as 21
the internet history, search terms, thumbnail images, downloading 22
activity, expert computer forensic testimony, number of visual or 23
printed matter depicting minors engaged in sexually explicit conduct, 24
defendant's access to and control over the electronic device and its 25
contents upon which the visual or printed matter was found, or any 26
other relevant evidence. The state must prove beyond a reasonable 27
doubt that the viewing was initiated by the user of the computer 28
where the viewing occurred. 29
(4) For the purposes of this section, each separate internet 30
session of intentionally viewing over the internet visual or printed 31
matter depicting a minor engaged in sexually explicit conduct 32
constitutes a separate offense. 33
(5) This section does not apply to a minor who intentionally 34
views over the internet visual or printed matter depicting a minor 35
((thirteen)) 13 years of age or older engaged in sexually explicit 36
conduct. 37
(6) This section does not apply to a person under ((thirteen)) 13 38
years of age who intentionally views over the internet visual or 39
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printed matter depicting himself or herself engaged in sexually 1
explicit conduct. 2
Sec. 8. RCW 9.68A.110 and 2024 c 88 s 3 are each amended to read 3
as follows: 4
(1) In a prosecution under RCW 9.68A.040, it is not a defense 5
that the defendant was involved in activities of law enforcement and 6
prosecution agencies in the investigation and prosecution of criminal 7
offenses. Law enforcement and prosecution agencies shall not employ 8
minors to aid in the investigation of a violation of RCW 9.68A.090 or 9
9.68A.100 through 9.68A.102, except for the purpose of facilitating 10
an investigation where the minor is also the alleged victim and the:11
(a) Investigation is authorized pursuant to RCW 12
9.73.230(1)(b)(ii) or 9.73.210(1)(b); or 13
(b) Minor's aid in the investigation involves only telephone or 14
electronic communication with the defendant. 15
(2) In a prosecution under RCW 9.68A.050, 9.68A.060, 9.68A.070, 16
or 9.68A.080, it is not a defense that the defendant did not know the 17
age of the child depicted in the visual or printed matter. It is a 18
defense, which the defendant must prove by a preponderance of the 19
evidence, that at the time of the offense the defendant was not in 20
possession of any facts on the basis of which he or she should 21
reasonably have known that the person depicted was a minor.22
(3) In a prosecution under RCW 9.68A.040, 9.68A.090, 9.68A.100, 23
9.68A.101, or 9.68A.102, it is not a defense that the defendant did 24
not know the alleged victim's age. It is a defense, which the 25
defendant must prove by a preponderance of the evidence, that at the 26
time of the offense, the defendant made a reasonable bona fide 27
attempt to ascertain the true age of the minor by requiring 28
production of a driver's license, marriage license, birth 29
certificate, or other governmental or educational identification card 30
or paper and did not rely solely on the oral allegations or apparent 31
age of the minor. 32
(4) In a prosecution under RCW 9.68A.050, 9.68A.060, 9.68A.070, 33
or 9.68A.075, it shall be an affirmative defense that the defendant 34
was a law enforcement officer or a person specifically authorized, in 35
writing, to assist a law enforcement officer and acting at the 36
direction of a law enforcement officer in the process of conducting 37
an official investigation of a sex-related crime against a minor, or 38
that the defendant was providing individual case treatment as a 39
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recognized medical facility or as a psychiatrist or psychologist 1
licensed under Title 18 RCW. Nothing in chapter 227, Laws of 2010 is 2
intended to in any way affect or diminish the immunity afforded an 3
electronic communication service provider, remote computing service 4
provider, or domain name registrar acting in the performance of its 5
reporting or preservation responsibilities under 18 U.S.C. Secs. 6
2258a, 2258b, or 2258c. 7
(5) In a prosecution under RCW 9.68A.050, 9.68A.060, 9.68A.070, 8
or 9.68A.075, the state is not required to establish the identity of 9
the alleged victim ((unless the charged offense involves a fabricated 10
depiction)). 11
(6) In a prosecution under RCW 9.68A.070 or 9.68A.075, it shall 12
be an affirmative defense that: 13
(a) The defendant was employed at or conducting research in 14
partnership or in cooperation with any institution of higher 15
education as defined in RCW 28B.07.020 or 28B.10.016, and:16
(i) He or she was engaged in a research activity;17
(ii) The research activity was specifically approved prior to the 18
possession or viewing activity being conducted in writing by a 19
person, or other such entity vested with the authority to grant such 20
approval by the institution of higher education; and21
(iii) Viewing or possessing the visual or printed matter is an 22
essential component of the authorized research; or23
(b) The defendant was an employee of the Washington state 24
legislature engaged in research at the request of a member of the 25
legislature and: 26
(i) The request for research is made prior to the possession or 27
viewing activity being conducted in writing by a member of the 28
legislature; 29
(ii) The research is directly related to a legislative activity; 30
and 31
(iii) Viewing or possessing the visual or printed matter is an 32
essential component of the requested research and legislative 33
activity. 34
(7) In a prosecution under RCW 9.68A.050, 9.68A.053, 9.68A.060, 35
9.68A.070, or 9.68A.075 where the charged offense involves a 36
fabricated depiction, ((it)) the state is not required to establish 37
that the minor depicted actually exists. It is not a defense that the 38
defendant lacked knowledge of whether the fabricated depiction had 39
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been created or altered by digitization , or that the defendant lacked 1
knowledge of whether the minor depicted actually exists.2
(8) Nothing in this section authorizes otherwise unlawful viewing 3
or possession of visual or printed matter depicting a minor engaged 4
in sexually explicit conduct. 5
--- END ---
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