Bill Description: House Bill 382 would criminalize the possession of AI-generated imagery that appears to depict minors engaged in sexual activity. The bill would also increase the mandatory terms of imprisonment for certain sexual exploitation crimes involving minors.
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Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?
House Bill 382 would amend Section 18-1507, Idaho Code, dealing with sexual exploitation of a child, to add new criminal prohibitions against possessing or accessing "a digital image, computer image, or computer-generated image that is indistinguishable from that of a child engaging in, participating in, observing, or being used for explicit sexual conduct" or material that "has been created, adapted, or modified to appear that an identifiable child is engaging in, participating in, observing, or being used for explicit sexual conduct."
The bill also defines "indistinguishable" as "virtually indistinguishable in that the visual material is such that an ordinary person viewing the visual material would conclude that the visual material is of an actual child. …"
Under this definition, it seems that a digitally generated image of an identifiable child would be treated as if it were an actual image of that child. It is unclear what standard would be used to determine the age of a fictional person in a digitally generated image.
Protecting actual children from sexual exploitation through AI is an appropriate act of guarding their rights and innocence, but we must be careful that laws protecting the rights of real people are not construed so broadly that they criminalize digital imagery based on perception alone.
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House Bill 382 would further amend Section 18-1507, Idaho Code, to impose increased mandatory minimum and maximum sentences for sexual exploitation crimes involving minors.
These increases are from 3 or 5 years (depending on the specific crime) for the minimum period of imprisonment and 10 or 15 years for the maximum period of imprisonment. The bill also adds language stating that "a court shall not have the power to suspend, withhold, retain jurisdiction over, or commute any minimum period of confinement imposed pursuant to this section."
Among the crimes subject to such mandatory imprisonment would be the possession or distribution of AI-generated images that do not portray an actual person, as discussed above.
Regardless of the crimes involved, mandatory sentencing provides no room for judicial discretion, and it imposes a draconian one-size-fits-all concept of justice on situations that have not yet occurred and where the relevant specifics, nuances, and circumstances cannot be foreknown. Such mandates run contrary to the goal of true justice.
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