Second degree sexual exploitation of a minor defined; presumptions; defenses; penalties

(A) An individual commits the offense of second degree sexual exploitation of a minor if, knowing the character or content of the material, he: (1) records, photographs, films, develops, duplicates, produces, or creates digital electronic file material that contains a visual representation of a minor or a morphed image of an identifiable minor engaged in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation; or (2) distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor or a morphed image of an identifiable minor engaged in sexual activity or appearing in a state of sexually explicit nudity when a reasonable person would infer the purpose is sexual stimulation. (B) In a prosecution pursuant to this section, the trier of fact may infer that a participant in sexual activity or a state of sexually explicit nudity depicted in material as a minor through its title, text, visual representations, or otherwise, is a minor. (C) Mistake of age is not a defense to a prosecution pursuant to this section. (D)(1) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned not less than three years nor more than ten years. No part of the minimum sentence may be suspended nor is the individual convicted eligible for parole until he has served the minimum sentence. (2) A person who violates the provisions of this section and previously has been convicted of an offense that required the person to register as a sex offender in accordance with Section 23-3-430, upon conviction, must be imprisoned for a minimum sentence of five years. (3) For any violation of the provisions of this section, no part of the minimum sentence may be suspended nor is the person convicted eligible for parole until he has served the minimum sentence. (E) The offense is a misdemeanor to be heard by the family court if the person charged under the provisions of subsection (A) is a minor and the offense is the minor's first charge related to a morphed image of an identifiable minor. The family court may order behavioral health counseling from an appropriate agency or provider, as a condition of adjudicating a minor.