SF 2713

2nd Engrossment - 89th Legislature (2015 - 2016) Posted on 07/06/2016 08:17am

A bill for an act
relating to public safety; creating a civil cause of action for the nonconsensual
dissemination of private sexual images and nonconsensual sexual solicitation;
amending the crime of stalking to include nonconsensual sexual solicitation;
expanding the definition of qualified domestic violence-related offense;
establishing criminal penalties for nonconsensual dissemination of private sexual
images and nonconsensual sexual solicitation; clarifying the law of criminal
defamation; amending Minnesota Statutes 2014, sections 609.02, subdivision 16;
609.27, subdivision 1; 609.275; 609.748, subdivision 1; 609.749, subdivision 2;
609.765; proposing coding for new law in Minnesota Statutes, chapters 604; 617.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

[604.30] DEFINITIONS.

(a) For the purposes of sections 604.30 and 604.31, the following terms have the
meanings given.

(b) "Dissemination" means distribution to one or more persons, other than the person
who is depicted in the image, or publication by any publicly available medium.

(c) "Image" means a photograph, film, video recording, or digital photograph
or recording.

(d) "Intimate parts" means genitals, pubic area, or anus of an individual, or if the
individual is female, a partially or fully exposed nipple.

(e) "Personal information" includes any identifier that permits communication or
in-person contact with the person depicted in the image, including:

(1) the person's first and last name, first initial and last name, first name and last
initial, or nickname;

(2) the person's home, school, or work address;

(3) the person's telephone number, e-mail address, or social media account
information; or

(4) the person's geolocation data.

(f) "Sexual act" means either sexual contact or sexual penetration.

(g) "Sexual contact" means the intentional touching of intimate parts or intentional
touching with seminal fluid or sperm onto another person's body.

(h) "Social media" means any electronic medium, including an interactive computer
service, telephone network, or data network, that allows users to create, share, and view
user-generated content.

(i) "Sexual penetration" means any of the following acts:

(1) sexual intercourse, cunnilingus, fellatio, or anal intercourse; or

(2) any intrusion, however slight, into the genital or anal openings of an individual
by another's body part or an object used by another for this purpose.

Sec. 2.

[604.31] CAUSE OF ACTION FOR NONCONSENSUAL
DISSEMINATION OF PRIVATE SEXUAL IMAGES; SEXUAL SOLICITATION.

Subdivision 1.

Nonconsensual dissemination of private sexual images.

(a) A
cause of action against a person for the nonconsensual dissemination of private sexual
images exists when:

(1) a person disseminated an image without the consent of the person depicted
in the image;

(2) the image is of an individual depicted in a sexual act or whose intimate parts
are exposed in whole or in part;

(3) the person is identifiable:

(i) from the image itself, by the person depicted in the image or by another person; or

(ii) from the personal information displayed in connection with the image; and

(4) the image was obtained or created under circumstances in which the person
depicted had a reasonable expectation of privacy.

(b) The fact that the individual depicted in the image consented to the creation of the
image or to the voluntary private transmission of the image is not a defense to liability for
a person who has disseminated the image without consent.

Subd. 2.

Nonconsensual sexual solicitation.

A person who uses the personal
information of another to invite, encourage, or solicit sexual acts without the individual's
consent and knows or has reason to know it will cause the person whose personal
information is used to feel harassed, frightened, threatened, oppressed, persecuted, or
intimidated, is liable for damages to the individual whose personal information was
published or disseminated publicly.

Subd. 3.

Damages.

The court may award the following damages to a prevailing
plaintiff from a person found liable under subdivision 1 or 2:

(1) general and special damages, including all finance losses due to the dissemination
of the image and damages for mental anguish;

(2) an amount equal to any profit made from the dissemination of the image by the
person who intentionally disclosed the image;

(3) a civil penalty awarded to the plaintiff of an amount up to $10,000; and

(4) court costs, fees, and reasonable attorney fees.

Subd. 4.

Injunction; temporary relief.

(a) A court may issue a temporary or
permanent injunction or restraining order to prevent further harm to the plaintiff.

(b) The court may issue a civil fine for the violation of a court order in an amount up
to $1,000 per day for failure to comply with an order granted under this section.

Subd. 5.

Confidentiality.

The court shall allow confidential filings to protect the
privacy of the plaintiff in cases filed under this section.

Subd. 6.

Liability; exceptions.

(a) No person shall be found liable under this
section when:

(1) the dissemination is made for the purpose of a criminal investigation or
prosecution that is otherwise lawful;

(2) the dissemination is for the purpose of, or in connection with, the reporting of
unlawful conduct;

(3) the dissemination is made in the course of seeking or receiving medical or mental
health treatment, and the image is protected from further dissemination;

(4) the image involves exposure in public or was obtained in a commercial setting
for the purpose of the legal sale of goods or services, including the creation of artistic
products for sale or display;

(5) the image relates to a matter of public interest and dissemination serves a lawful
public purpose;

(6) the dissemination is for legitimate scientific research or educational purposes; or

(7) the dissemination is made for legal proceedings and is consistent with common
practice in civil proceedings necessary for the proper functioning of the criminal justice
system, or protected by court order which prohibits any further dissemination.

(b) This section does not alter or amend the liabilities and protections granted by
United States Code, title 47, section 230, and shall be construed in a manner consistent
with federal law.

(c) A cause of action arising under this section does not prevent the use of any other
cause of action or remedy available under the law.

Subd. 7.

Jurisdiction.

A court has jurisdiction over a cause of action filed pursuant
to this section if the plaintiff or defendant resides in this state.

Subd. 8.

Venue.

A cause of action arising under this section may be filed in either:

(1) the county of residence of the defendant or plaintiff or in the jurisdiction of the
plaintiff's designated address if the plaintiff participates in the address confidentiality
program established by chapter 5B; or

(2) the county where any image is produced, reproduced, or stored in violation
of this section.

Subd. 9.

Discovery of dissemination.

In a civil action brought under subdivision
1, the statute of limitations is tolled until the plaintiff discovers the image has been
disseminated.

EFFECTIVE DATE.

This section is effective August 1, 2016, and applies to causes
of action commenced on or after that date.

Sec. 3.

Minnesota Statutes 2014, section 609.02, subdivision 16, is amended to read:

Subd. 16.

Qualified domestic violence-related offense.

"Qualified domestic
violence-related offense" includes a violation of or an attempt to violate sections 518B.01,
subdivision 14 (violation of domestic abuse order for protection); 609.185 (first-degree
murder); 609.19 (second-degree murder); 609.221 (first-degree assault); 609.222
(second-degree assault); 609.223 (third-degree assault); 609.2231 (fourth-degree assault);
609.224 (fifth-degree assault); 609.2242 (domestic assault); 609.2245 (female genital
mutilation); 609.2247 (domestic assault by strangulation); 609.342 (first-degree criminal
sexual conduct); 609.343 (second-degree criminal sexual conduct); 609.344 (third-degree
criminal sexual conduct); 609.345 (fourth-degree criminal sexual conduct); 609.377
(malicious punishment of a child); 609.713 (terroristic threats); 609.748, subdivision 6
(violation of harassment restraining order); 609.749 (stalking); 609.78, subdivision 2
(interference with an emergency call); 617.261 (nonconsensual dissemination of private
sexual images); and 629.75 (violation of domestic abuse no contact order); and similar
laws of other states, the United States, the District of Columbia, tribal lands, and United
States territories.

EFFECTIVE DATE.

This section is effective August 1, 2016, and applies to crimes
committed on or after that date.

Sec. 4.

Minnesota Statutes 2014, section 609.27, subdivision 1, is amended to read:

Subdivision 1.

Acts constituting.

Whoever orally or in writing makes any of the
following threats and thereby causes another against the other's will to do any act or forbear
doing a lawful act is guilty of coercion and may be sentenced as provided in subdivision 2:

(1) a threat to unlawfully inflict bodily harm upon, or hold in confinement, the
person threatened or another, when robbery or attempt to rob is not committed thereby; or

(2) a threat to unlawfully inflict damage to the property of the person threatened
or another; or

(3) a threat to unlawfully injure a trade, business, profession, or calling; or

(4) a threat to expose a secret or deformity, publish a defamatory statement, or
otherwise to expose any person to disgrace or ridicule; or

(5) a threat to make or cause to be made a criminal charge, whether true or false;
provided, that a warning of the consequences of a future violation of law given in good
faith by a peace officer or prosecuting attorney to any person shall not be deemed a threat
for the purposes of this section; or

(6) a threat to commit a violation under section 617.261.

EFFECTIVE DATE.

This section is effective August 1, 2016, and applies to crimes
committed on or after that date.

Sec. 5.

Minnesota Statutes 2014, section 609.275, is amended to read:

609.275 ATTEMPT TO COERCE.

Whoever makes a threat within the meaning of section 609.27, subdivision 1, clauses
(1) to (5) (6), but fails to cause the intended act or forbearance, commits an attempt to
coerce and may be punished as provided in section 609.17.

EFFECTIVE DATE.

This section is effective August 1, 2016, and applies to crimes
committed on or after that date.

Sec. 6.

Minnesota Statutes 2014, section 609.748, subdivision 1, is amended to read:

Subdivision 1.

Definition.

For the purposes of this section, the following terms have
the meanings given them in this subdivision.

(a) "Harassment" includes:

(1) a single incident of physical or sexual assault, a single incident of stalking
under section 609.749, subdivision 2, clause (8), a single incident of nonconsensual
dissemination of private sexual images under section 617.261, or repeated incidents of
intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are
intended to have a substantial adverse effect on the safety, security, or privacy of another,
regardless of the relationship between the actor and the intended target;

(2) targeted residential picketing; and

(3) a pattern of attending public events after being notified that the actor's presence
at the event is harassing to another.

(b) "Respondent" includes any adults or juveniles alleged to have engaged in
harassment or organizations alleged to have sponsored or promoted harassment.

(c) "Targeted residential picketing" includes the following acts when committed on
more than one occasion:

(1) marching, standing, or patrolling by one or more persons directed solely at a
particular residential building in a manner that adversely affects the safety, security, or
privacy of an occupant of the building; or

(2) marching, standing, or patrolling by one or more persons which prevents an
occupant of a residential building from gaining access to or exiting from the property on
which the residential building is located.

EFFECTIVE DATE.

This section is effective August 1, 2016.

Sec. 7.

Minnesota Statutes 2014, section 609.749, subdivision 2, is amended to read:

Subd. 2.

Stalking crimes.

A person who stalks another by committing any of the
following acts is guilty of a gross misdemeanor:

(1) directly or indirectly, or through third parties, manifests a purpose or intent to
injure the person, property, or rights of another by the commission of an unlawful act;

(2) follows, monitors, or pursues another, whether in person or through any available
technological or other means;

(3) returns to the property of another if the actor is without claim of right to the
property or consent of one with authority to consent;

(4) repeatedly makes telephone calls, sends text messages, or induces a victim to
make telephone calls to the actor, whether or not conversation ensues;

(5) makes or causes the telephone of another repeatedly or continuously to ring;

(6) repeatedly mails or delivers or causes the delivery by any means, including
electronically, of letters, telegrams, messages, packages, through assistive devices for
people with vision impairments or hearing loss, or any communication made through any
available technologies or other objects; or

(7) knowingly makes false allegations against a peace officer concerning the
officer's performance of official duties with intent to influence or tamper with the officer's
performance of official duties; or

(8) uses another's personal information, without consent, to invite, encourage, or
solicit a third party to engage in a sexual act with the person.

For purposes of this clause, "personal information" and "sexual act" have the meanings
given in section 617.261, subdivision 7.

EFFECTIVE DATE.

This section is effective August 1, 2016, and applies to crimes
committed on or after that date.

Sec. 8.

Minnesota Statutes 2014, section 609.765, is amended to read:

609.765 CRIMINAL DEFAMATION.

Subdivision 1.

Definition.

Defamatory matter is anything which exposes a person
or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in
society, or injury to business or occupation.

Subd. 2.

Acts constituting.

Whoever with knowledge of its false and defamatory
character orally, in writing or by any other means, communicates any false and defamatory
matter to a third person without the consent of the person defamed is guilty of criminal
defamation and may be sentenced to imprisonment for not more than one year or to
payment of a fine of not more than $3,000, or both.

Subd. 3.

Justification.

Violation of subdivision 2 is justified if:

(1) the defamatory matter is true and is communicated with good motives and for
justifiable ends; or

(2) the communication is absolutely privileged; or

(3) (2) the communication consists of fair comment made in good faith with respect
to persons participating in matters of public concern; or

(4) (3) the communication consists of a fair and true report or a fair summary of any
judicial, legislative or other public or official proceedings; or

(5) (4) the communication is between persons each having an interest or duty with
respect to the subject matter of the communication and is made with intent to further
such interest or duty.

Subd. 4.

Testimony required.

No person shall be convicted on the basis of an oral
communication of defamatory matter except upon the testimony of at least two other
persons that they heard and understood the oral statement as defamatory or upon a plea
of guilty.

EFFECTIVE DATE.

This section is effective the day following the final enactment.

Sec. 9.

[617.261] NONCONSENSUAL DISSEMINATION OF PRIVATE
SEXUAL IMAGES.

Subdivision 1.

Crime.

It is a crime to intentionally disseminate an image of another
person who is depicted in a sexual act or whose intimate parts are exposed, in whole or
in part, when:

(1) the person is identifiable:

(i) from the image itself, by the person depicted in the image or by another person; or

(ii) from personal information displayed in connection with the image;

(2) the actor knows or reasonably should know that the person depicted in the image
does not consent to the dissemination; and

(3) the image was obtained or created under circumstances in which the actor knew or
reasonably should have known the person depicted had a reasonable expectation of privacy.

Subd. 2.

Penalties.

(a) Except as provided in paragraph (b), whoever violates
subdivision 1 is guilty of a gross misdemeanor.

(b) Whoever violates subdivision 1 may be sentenced to imprisonment for not
more than three years or to payment of a fine of $5,000, or both, if one of the following
factors is present:

(1) the person depicted in the image suffers financial loss due to the dissemination
of the image;

(2) the actor disseminates the image with intent to profit from the dissemination;

(3) the actor maintains an Internet Web site, online service, online application, or
mobile application for the purpose of disseminating the image;

(4) the actor posts the image on a Web site;

(5) the actor disseminates the image with intent to harass the person depicted
in the image;

(6) the actor obtained the image by committing a violation of section 609.52,
609.746, 609.89, or 609.891; or

(7) the actor has previously been convicted under this chapter.

Subd. 3.

No defense.

It is not a defense to a prosecution under this section that the
person consented to the capture or possession of the image.

Subd. 4.

Venue.

Notwithstanding anything to the contrary in section 627.01, an
offense committed under this section may be prosecuted in:

(1) the county where the offense occurred;

(2) the county of residence of the actor or victim or in the jurisdiction of the victim's
designated address if the victim participates in the address confidentiality program
established by chapter 5B; or

(3) only if venue cannot be located in the counties specified under clause (1) or
(2), the county where any image is produced, reproduced, found, stored, received, or
possessed in violation of this section.

Subd. 5.

Exemptions.

Subdivision 1 does not apply when:

(1) the dissemination is made for the purpose of a criminal investigation or
prosecution that is otherwise lawful;

(2) the dissemination is for the purpose of, or in connection with, the reporting of
unlawful conduct;

(3) the dissemination is made in the course of seeking or receiving medical or mental
health treatment and the image is protected from further dissemination;

(4) the image involves exposure in public or was obtained in a commercial setting
for the purpose of the legal sale of goods or services, including the creation of artistic
products for sale or display;

(5) the image relates to a matter of public interest and dissemination serves a lawful
public purpose;

(6) the dissemination is for legitimate scientific research or educational purposes; or

(7) the dissemination is made for legal proceedings and is consistent with common
practice in civil proceedings necessary for the proper functioning of the criminal justice
system, or protected by court order which prohibits any further dissemination.

Subd. 6.

Immunity.

Nothing in this section shall be construed to impose liability
upon the following entities solely as a result of content or information provided by
another person:

(1) an interactive computer service as defined in United States Code, title 47, section
230, paragraph (f), clause (2);

(2) a provider of public mobile services or private radio services; or

(3) a telecommunications network or broadband provider.

Subd. 7.

Definitions.

(a) For purposes of this section, the following terms have
the meanings given.

(b) "Dissemination" means distribution to one or more persons, other than the person
depicted in the image, or publication by any publicly available medium.

(c) "Harass" means an act that would cause a substantial adverse effect on the safety,
security, or privacy of a reasonable person.

(d) "Image" means a photograph, film, video recording, or digital photograph
or recording.

(e) "Intimate parts" means the genitals, pubic area, or anus of an individual, or if the
individual is female, a partially or fully exposed nipple.

(f) "Personal information" means any identifier that permits communication or
in-person contact with a person, including:

(1) a person's first and last name, first initial and last name, first name and last initial,
or nickname;

(2) a person's home, school, or work address;

(3) a person's telephone number, e-mail address, or social media account
information; or

(4) a person's geolocation data.

(g) "Sexual act" means either sexual contact or sexual penetration.

(h) "Sexual contact" means the intentional touching of intimate parts or intentional
touching with seminal fluid or sperm onto another person's body.

(i) "Sexual penetration" means any of the following acts:

(1) sexual intercourse, cunnilingus, fellatio, or anal intercourse; or

(2) any intrusion, however slight, into the genital or anal openings of an individual
by another's body part or an object used by another for this purpose.

(j) "Social media" means any electronic medium, including an interactive computer
service, telephone network, or data network, that allows users to create, share, and view
user-generated content.

Subd. 8.

Other crimes.

Nothing in this section shall limit the power of the state
to prosecute or punish a person for conduct that constitutes any other crime under any
other law of this state.

EFFECTIVE DATE.

This section is effective August 1, 2016, and applies to crimes
committed on or after that date.