August 1, 2018 | Criminal Law

Effective July 14, 2018, it is now a crime in Kentucky to post online “private erotic matter” (video, photographs, etc.) of another person without their written consent, if the intent is to “harm, harass, intimidate, threaten, or coerce” that person, and he or she would suffer harm as a result. This new law can be found in KRS 531.120.

Penalties are as follows:

  • First offense (image posted for profit/gain): Class D felony (1-5 years, $1,000-$10,000 fine).
  • First offense (no profit/gain): Class A misdemeanor (0-365 days jail, $500 fine).
  • Second offense (image posted for profit/gain): Class C felony (5-10 years, $1,000-$10,000 fine).
  • Second offense (no profit/gain): Class D felony (1-5 years, $1,000-$10,000 fine).

Generally, persons convicted of these crimes shall not be required to register as a sex offender. An obvious exception to this would be if the person depicted was a minor, which, according to KRS 531.330, is anyone under the age of eighteen (18). Consider, though, that the age of sexual consent in Kentucky is sixteen (16).

It is important to note that consent to creation of an image does not constitute consent to distribution of that image. See KRS 531.120(5).

Prior to the passage of this new law, Kentucky only criminalized “sexting” if it depicted a minor in a sexual manner. The new law makes it clear that without written consent, images shared with third parties must be removed from public view (websites) upon request, at no cost to the person requesting removal.

Contact the Louisville Criminal Defense Attorneys at Suhre & Associates, LLC For Help Today

For more information, contact the criminal defense attorneys at Suhre & Associates, LLC give us a call today at (502) 371-7000 or visit us at our Louisville law office.

Suhre & Associates, LLC
214 S Clay St A
Louisville, KY 40202
(502) 371-7000

Nathan Miller, Attorney at LawAUTHOR NATHAN MILLER
Nathan Miller is a Louisville Criminal Defense Attorney and has been practicing law in Kentucky for over 15 years. Mr. Miller spent three years on Capitol Hill in Washington D.C. crafting controlled substance and DUI legislation at the local, state and federal levels. He is also a certified practitioner of Standardized Field Sobriety Testing and has attended the National Forensic College.

531.120 Distribution of sexually explicit images without consent. (Effective until July 14, 2018)

  1. A person is guilty of distribution of sexually explicit images without consent when:
    1. He or she intentionally distributes to any third party private erotic matter without the written consent of the person depicted, and does so with the intent to profit, or to harm, harass, intimidate, threaten, or coerce the person depicted; and
    2. The disclosure would cause a reasonable person to suffer harm.
  2. This section shall not apply to:
    1. Images involving voluntary nudity or sexual conduct in public, commercial settings, or in a place where a person does not have a reasonable expectation of privacy;
    2. Disclosures made in the public interest, including the reporting of unlawful conduct, or lawful and common practices of law enforcement, criminal reporting, corrections, legal proceedings, or medical treatment;
    3. Disclosures of materials that constitute a matter of public concern; or
    4. Internet service providers or telecommunications services, or interactive computer services, as defined in 47 U.S.C. sec. 230(f)(2), for content solely provided by another person.
  3. A person who maintains an Internet Web site, online service, online application, or mobile application that distributes private erotic matter shall remove any such image if requested by a person depicted, and shall not solicit or accept a fee or other consideration to remove the visual image.
  4. Distribution of sexually explicit images without consent is a Class A misdemeanor for the first offense and a Class D felony for each subsequent offense, unless the person distributes the private erotic matter for profit or gain, in which case it is a Class D felony for the first offense and a Class C felony for each subsequent offense.
  5. In this section, “consent” means the consent to transmission of images to a specific recipient or recipients. Consent to the creation of the visual image does not, by itself, constitute consent to the distribution of the visual image.
  6. Notwithstanding KRS 17.500 to 17.580, a conviction under this section shall not result in the offender being deemed a registrant or being required to register as a sex offender.

531.330 Presumption as to minority.

  1. For purposes of KRS 529.040 or 529.100 where the offense involves commercial sexual activity and for the purposes of KRS 530.070, 531.080, and 531.300 to 531.370, any person who appears to be under the age of eighteen (18), or under the age of sixteen (16), shall be presumed to be under the age of eighteen (18), or under the age of sixteen (16), as the case may be.
  2. In any prosecution under KRS 529.040 or 529.100 where the offense involves commercial sexual activity by a minor and in any prosecution under KRS 530.070, 531.080, and 531.300 to 531.370, the defendant may prove in exculpation that he in good faith reasonably believed that the person involved in the performance was not a minor.
  3. The presumption raised in subsection (1) of this section may be rebutted by any competent evidence.