2023 Florida Statutes › Title XLVI - Crimes › Chapter 775 - General Penalties; Registration of Criminals › 775.0847 - Possession or Promotion of Certain Images of Child Pornography; Reclassification.

775.0847 Possession or promotion of certain images of child pornography; reclassification.—
(1) For purposes of this section:
(a) “Child” or “minor” means any person, whose identity is known or unknown, younger than 18 years of age.
(b) “Child pornography” means:
1. Any image depicting a minor engaged in sexual conduct; or
2. Any image that has been created, altered, adapted, or modified by electronic, mechanical, or other means, to portray an identifiable minor engaged in sexual conduct.
(c) “Female genitals” includes the labia minora, labia majora, clitoris, vulva, hymen, and vagina.
(d) “Identifiable minor” means a person:
1. Who was a minor at the time the image was created, altered, adapted, or modified, or whose image as a minor was used in the creating, altering, adapting, or modifying of the image; and
2. Who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark, or other recognizable feature.
The term may not be construed to require proof of the actual identity of the identifiable minor.
(e) “Sadomasochistic abuse” means flagellation or torture by or upon a person or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.
(f) “Sexual battery” means oral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female genital penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.
(g) “Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or female genitals of the other.
(h) “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual or simulated lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”
(2) A violation of s. 827.071, s. 847.0135, s. 847.0137, or s. 847.0138 shall be reclassified to the next higher degree as provided in subsection (3) if:
(a) The offender possesses 10 or more images of any form of child pornography regardless of content; and
(b) The content of at least one image contains one or more of the following:
1. A child who is younger than the age of 5.
2. Sadomasochistic abuse involving a child.
3. Sexual battery involving a child.
4. Sexual bestiality involving a child.
5. Any motion picture, film, video, or computer-generated motion picture, film, or video involving a child, regardless of length and regardless of whether the motion picture, film, video, or computer-generated motion picture, film, or video contains sound.
(3)(a) In the case of a felony of the third degree, the offense is reclassified to a felony of the second degree.
(b) In the case of a felony of the second degree, the offense is reclassified to a felony of the first degree.
For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense that is reclassified under this section is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.
History.—s. 3, ch. 2007-143; s. 3, ch. 2022-165; s. 1, ch. 2022-212.