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A LAW to amend the Sexual Offences (Jersey) Law 2018 to include additional offences committed using technology, to amend the offence of sexual grooming of a child and to make other amendments related to sexual offences.

THE STATES, subject to the sanction of His Most Excellent Majesty in Council, have adopted the following Law –

“deepfake intimate recording” is defined in Article 33A(4);

“image” includes –

(a)     a moving or still image (including a still image captured by any means from a moving image); and

(b)     data (stored by any means) that is capable of conversion into an image;

“intimate recording” is defined in Article 33A(1) and (2);

“private act” is defined in Article 33A(3);

“share”, in relation to an intimate recording or a deepfake intimate recording, means to cause another person (including the subject of the recording) to see or hear the recording;

(a)     having met or communicated with another person on at least 1 earlier occasion –

(i)      the adult intentionally meets the other person;

(ii)      the adult travels with the intention of meeting the other person in any part of the world;

(iii)     the adult arranges to meet the other person in any part of the world; or

(iv)     the other person travels with the intention of meeting the adult in any part of the world;

(3)     In paragraph (1)(b), “relevant offence” means –

(a)     an offence under this Law;

(b)     a customary law offence of indecent assault or indecent exposure;

(c)     an offence under Article 61 (fraudulent evasion of duty, prohibitions and restrictions) of the Customs and Excise (Jersey) Law 1999 that relates to goods prohibited to be imported under Article 2 (prohibition on importing and exporting goods) of the Customs and Excise (Import and Export Control) (Jersey) Order 2006 that are indecent photographs of people who are, or appear to be, aged under 16 years;

(d)     an offence under any of Articles 74 to 76 (sexual offences: prohibited acts, relationship of care, coercion) of the Mental Health (Jersey) Law 2016;

(e)     an offence under Article 2 (indecent photographs or pseudo-photographs of children) of the Protection of Children (Jersey) Law 1994;

(f)      an offence under Article 11(14) (child protection orders) of the Sex Offenders (Jersey) Law 2010; and

(g)     an offence of aiding, abetting, counselling or procuring an offence falling within any of sub-paragraphs (a) to (f), or of conspiring or attempting to commit, or of inciting another to commit, any of those offences –

(i)      under customary law; or

(ii)      under Article 1 of the Criminal Offences (Jersey) Law 2009 (offence to aid, abet, counsel, procure, conspire, attempt or incite the commission of a statutory offence).

(4)     The States may by Regulations amend the definition “relevant offence”.

Part 8A

Offences involving technology

33A   Meaning of intimate recording, deepfake intimate recording, and private act

(1)     An “intimate recording” is –

(a)     an image that –

(i)      shows a person doing a private act;

(ii)      shows the person’s genitals, buttocks or breasts, either naked or covered only with underwear; or

(iii)     shows a person’s genitals, buttocks or breasts underneath or through clothing in circumstances in which the genitals, buttocks or breasts would not otherwise be visible; or

(b)     an audio recording that captures a person doing a sexual act that is not of a kind ordinarily done in public.

(2)     The following are irrelevant in determining if something is an intimate recording –

(a)     the medium or device used to make the recording;

(b)     whether the recording exists in physical or electronic form;

(c)     whether the recording is transmitted in real time or is retained.

(3)     A person is doing a “private act” if –

(a)     the person’s genitals, buttocks or breasts are exposed or covered only with underwear;

(b)     the person is showering, using the toilet or engaged in another personal bodily activity that involves dressing or undressing; or

(c)     the person is doing a sexual act that is not of a kind ordinarily done in public.

(4)     A “deepfake intimate recording” is an image or sound that –

(a)     is created, manipulated or otherwise altered using technology; and

(b)     would appear to a reasonable person to be an intimate recording of a person.

33B   Possessing intimate recording or deepfake intimate recording without consent

(1)     A person commits an offence if –

(a)     the person knowingly possesses an intimate recording or deepfake intimate recording of another person; and

(b)     the person does not reasonably believe that the other person consents to the possession.

(2)     A person has a defence if the person, as soon as practicable after becoming aware that the recording is in their possession, takes all reasonable steps to delete or otherwise dispose of the recording.

(3)     A person who commits an offence under this Article is liable to imprisonment for a term of 2 years and to a fine.

33C    Making intimate recording without consent

(1)     A person commits an offence if –

(a)     the person intentionally or recklessly makes an intimate recording of another person;

(b)     when the intimate recording is made, the other person is in a place that, in the circumstances, would reasonably be expected to provide privacy; and

(c)     the person does not reasonably believe that the other person consents to the intimate recording being made.

(2)     A person commits an offence if the person operates equipment with the intent of using that equipment to commit an offence under paragraph (1).

(3)     A person does not commit an offence under this Article if –

(a)     the person is a health professional who makes an intimate recording of a patient for a genuine medical purpose (for example, to seek a second opinion from another health professional); or

(b)     the person makes an intimate recording for a genuine law enforcement purpose (including for the purposes of legal proceedings).

(4)     A person who commits an offence under this Article is liable to imprisonment for a term of 2 years and to a fine.

33D   Making deepfake intimate recording without consent

(1)     A person commits an offence if –

(a)     the person makes a deepfake intimate recording of another person; and

(b)     the person does not reasonably believe that the other person consents to the deepfake intimate recording being made.

(2)     A person who commits an offence under this Article is liable to imprisonment for a term of 6 months and to a fine.

33E    Sharing intimate recording or deepfake intimate recording without consent

(1)     A person commits an offence if –

(a)     the person intentionally or recklessly shares –

(i)      an intimate recording of another person; or

(ii)      a deepfake intimate recording of another person; and

(b)     the person does not reasonably believe that the other person consents to the recording being shared.

(2)     A person does not commit an offence if –

(a)     the person is a health professional who shares an intimate recording of a patient for a genuine medical purpose (for example, to seek a second opinion from another health professional); or

(b)     the person shares an intimate recording or a deepfake intimate recording for a genuine law enforcement purpose (including for the purposes of legal proceedings).

(3)     A person has a defence if –

(a)     the person reasonably believed, based on the circumstances that the person reasonably believed to have existed at the time the intimate recording was made, that –

(i)      the subject of the intimate recording did not have a reasonable expectation that the intimate recording would not be made; and

(ii)      the subject of the intimate recording was doing the private act voluntarily;

(b)     the intimate recording or deepfake intimate recording had already been shared publicly with the consent of the subject of the recording;

(c)     the person reasonably believed that the intimate recording or deepfake intimate recording had already been shared publicly with the consent of the subject of the recording; or

(d)     a reasonable person would consider the person’s conduct acceptable, having regard to –

(i)      the nature and content of the intimate recording or deepfake intimate recording;

(ii)      the circumstances in which the recording was made and shared;

(iii)     the characteristics of the subject of the recording (including their age, intellectual capacity and vulnerability);

(iv)     the extent to which the subject’s privacy was violated; and

(v)     the relationship between the person and the subject.

(4)     A person who commits an offence under this Article is liable to imprisonment for a term of 2 years and to a fine.

33F    Threatening to share an intimate recording or deepfake intimate recording

(1)     A person commits an offence if –

(a)     the person threatens to take an action that would be an offence under Article 33E (sharing intimate recording or deepfake intimate recording without consent); and

(b)     the recipient of the threat is reasonably likely to believe that the threat will be carried out.

(2)     For the purpose of paragraph (1), it is irrelevant whether the threat is made to a person who is the subject of the recording or to another person.

(3)     A person who commits an offence under this Article is liable to imprisonment for a term of 2 years and to a fine.

33G   Deletion and removal of intimate recording or deepfake intimate recording

(1)     This Article applies if –

(a)     a person (“A”) makes or shares an intimate recording or a deepfake intimate recording of another person (“B”); and

(b)     A is made aware that B does not consent, or no longer consents, to A possessing the recording or to the publication of the recording.

(2)     A must, as soon as practicable after being made aware that B does not consent, take all reasonable steps to delete the recording and to remove the recording from any platform on which it has been published.

(3)     A person who fails to comply with paragraph (2) commits an offence and is liable to imprisonment for a term of 12 months and to a fine.

33H   Unsolicited pornographic images

(1)     A person commits an offence if –

(a)     the person intentionally or recklessly causes another person to see an image that shows, or appears to show –

(i)      pornographic content; or

(ii)      a person’s genitals; and

(b)     the person does not reasonably believe that the other person consents to seeing the image.

(2)     For the purposes of paragraph (1), the identity of the person that the image shows, or appears to show, is irrelevant.

(3)     A person who commits an offence under this Article is liable to imprisonment for a term of 2 years and to a fine.

33I     Causing person to create or share intimate recording

(1)     A person commits an offence if –

(a)     the person causes another person to make or share an intimate recording; and

(b)     the person does not reasonably believe that the other person consents to making or sharing the recording.

(2)     A person who commits an offence under this Article is liable to imprisonment for a term of 2 years and to a fine.

33J    Aggravating factors

(1)     In determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence under this Part, a court must treat the presence of the following as aggravating factors –

(a)     the person committed the offence with the intent to cause a person alarm, distress or humiliation;

(b)     the person committed the offence with the intent to obtain sexual gratification;

(c)     the offence caused or contributed to serious harm; or

(d)     for an offence under Article 33H (unsolicited pornographic images), the person who saw the image was aged 15 or younger.

(2)     If an aggravating factor is present, the court must state in open court that the offence was aggravated.

(3)     This Article does not limit the matters to which a court may have regard when determining the sentence to be imposed on, or other way of dealing with, the person.

(via)   Part 8A (offences involving technology);