SB493: Sexually explicit visual material to another; civil action for dissemination of images, penalty.


VIRGINIA ACTS OF ASSEMBLY -- CHAPTER
An Act to amend the Code of Virginia by adding a section numbered 8.01-46.2, relating to civil action for the dissemination of sexually explicit visual material to another; penalty.
[S 493]
Approved

 

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 8.01-46.2 as follows:

§ 8.01-46.2. Civil action for dissemination of intimate images to another; penalty.

A. As used in this section:

"Electronic communication device" means the same as that term is defined in § 18.2-190.1.

"Intimate image" means a photograph, film, video, recording, digital picture, or other visual reproduction of a person 18 years of age or older who is in a state of undress so as to expose the human male or female genitals.

B. Any person 18 years of age or older who knowingly transmits an intimate image by computer or other electronic means to the computer or electronic communication device of another person 18 years of age or older when such other person has not consented to the use of his computer or electronic communication device for the receipt of such material or has expressly forbidden the receipt of such material shall be considered a trespass and shall be liable to the recipient of the intimate image for actual damages or $500, whichever is greater, in addition to reasonable attorney fees and costs. The court may also enjoin and restrain the defendant from committing such further acts.

The remedies provided by this section are cumulative and shall not be construed as restricting a remedy that is available under any other law.

C. The provisions of this section shall not apply to (i) any Internet service provider, mobile data provider, or operator of an online or mobile application, to the extent that such entity is transmitting, routing, or providing connections for electronic communications initiated by or at the direction of another; (ii) any service that transmits an intimate image, including an on-demand, subscription, or advertising-supported service; (iii) a health care provider as defined in § 8.01-581.1 that transmits an intimate image for a legitimate medical purpose; or (iv) any transmission of commercial electronic mail as defined in § 18.2-152.2.

D. Venue for an action under this section may lie in the jurisdiction where the intimate image is transmitted from or where the intimate image is received or possessed by the plaintiff.


SENATE BILL NO. 493
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee on the Judiciary
on February 9, 2022)
(Patron Prior to Substitute--Senator McClellan)
A BILL to amend the Code of Virginia by adding a section numbered 8.01-46.2, relating to civil action for the dissemination of sexually explicit visual material to another; penalty.

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 8.01-46.2 as follows:

§ 8.01-46.2. Civil action for dissemination of intimate images to another; penalty.

A. As used in this section:

"Electronic communication device" means the same as that term is defined in § 18.2-190.1.

"Intimate image" means a photograph, film, video, recording, digital picture, or other visual reproduction of a person 18 years of age or older who is in a state of undress so as to expose the human male or female genitals.

B. Any person 18 years of age or older who knowingly transmits an intimate image by computer or other electronic means to the computer or electronic communication device of another person 18 years of age or older when such other person has not consented to the use of his computer or electronic communication device for the receipt of such material or has expressly forbidden the receipt of such material shall be considered a trespass and shall be liable to the recipient of the intimate image for actual damages or $500, whichever is greater, in addition to reasonable attorney fees and costs. The court may also award punitive damages and enjoin and restrain the defendant from committing such further acts.

The remedies provided by this section are cumulative and shall not be construed as restricting a remedy that is available under any other law.

C. The provisions of this section shall not apply to (i) any Internet service provider, mobile data provider, or operator of an online or mobile application, to the extent that such entity is transmitting, routing, or providing connections for electronic communications initiated by or at the direction of another; (ii) any service that transmits an intimate image, including an on-demand, subscription, or advertising-supported service; (iii) a health care provider as defined in § 8.01-581.1 that transmits an intimate image for a legitimate medical purpose; or (iv) any transmission of commercial electronic mail as defined in § 18.2-152.2.

D. Venue for an action under this section may lie in the jurisdiction where the intimate image is transmitted from or where the intimate image is received or possessed by the plaintiff.

SENATE BILL NO. 493

Offered January 12, 2022
Prefiled January 11, 2022
A BILL to amend and reenact § 15.2-1627 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 18.2-386.3, relating to unlawful dissemination of sexually explicit visual material to another; penalty.
Patron-- McClellan

Referred to Committee on the Judiciary

Be it enacted by the General Assembly of Virginia:

1. That § 15.2-1627 of the Code of Virginia is amended and reenacted and that the Code of Virginia is amended by adding a section numbered 18.2-386.3 as follows:

§ 15.2-1627. Duties of attorneys for the Commonwealth and their assistants.

A. No attorney for the Commonwealth, or assistant attorney for the Commonwealth, shall be required to carry out any duties as a part of his office in civil matters of advising the governing body and all boards, departments, agencies, officials and employees of his county or city; of drafting or preparing county or city ordinances; of defending or bringing actions in which the county or city, or any of its boards, departments or agencies, or officials and employees thereof, shall be a party; or in any other manner of advising or representing the county or city, its boards, departments, agencies, officials and employees, except in matters involving the enforcement of the criminal law within the county or city.

B. The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of § 18.2-268.3, 18.2-386.3, 29.1-738.2, 46.2-341.20:7, or 46.2-341.26:3. He may, in his discretion, file a notice of appeal with the circuit court for the appeal of a criminal case for which he was the prosecuting attorney and he may appear and represent the Commonwealth in any criminal case on appeal before the Court of Appeals or the Supreme Court for which he was the prosecuting attorney, provided that the Attorney General consented to such appearance pursuant to § 2.2-511.

He shall also represent the Commonwealth in an appeal of a civil matter related to the enforcement of a criminal law or a criminal case for which he was the prosecuting attorney, including a petition for expungement of a defendant's criminal record, an action of forfeiture filed in accordance with the provisions of Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2, or any matter which he may enforce pursuant to this section.

§ 18.2-386.3. Unlawful dissemination of sexually explicit visual material to another; penalty.

A. Any person 18 years of age or older who knowingly transmits sexually explicit visual material as defined in § 18.2-374.1 by computer or other electronic means to another person 18 years of age or older when such other person has not requested or consented to the transmittal of such material or has expressly forbidden the transmittal of such material is subject to a civil penalty of not more than $250 for a first offense and not more than $500 for a second offense or subsequent offense.

B. The provisions of this section shall not apply to any: (i) Internet service provider, mobile data provider, or operator of an online or mobile application, to the extent that such entity is transmitting, routing, or providing connections for electronic communications initiated by or at the direction of another; (ii) any service that transmits sexually explicit visual material, including an on-demand, subscription, or advertising-supported service; or (iii) a health care provider as defined in § 8.01-581.1 that transmits sexually explicit visual material for a legitimate medical purpose.

C. Venue for a prosecution under this section may lie in the jurisdiction where the sexually explicit visual material is transmitted from or where sexually explicit visual material is received or possessed by the recipient in violation of this section.

D. The provisions of this section shall not preclude prosecution under any other statute.