(a) In proving that a person in a visual depiction who is engaged in any obscene act set out in Sections 13A-12-191, 13A-12-192, 13A-12-196 and 13A-12-197 is under the age of 17 years, the state is not required to introduce into evidence a birth certificate, produce testimony as to the date of birth of such person, or produce testimony of any person who knows or is acquainted with the person alleged to be under the age of 17 years. If the defendant or the state intends to rely on a birth certificate to prove the date of birth of any person in the visually reproduced matter, such defendant or the state shall file with the clerk of the court in which the action is pending, at least 15 days prior to trial, a notice of an intention to rely on an official, certified copy of a birth certificate together with a copy of the birth certificate.
(b) A jury, or the court if a jury trial is waived, may infer from the following factors whether or not the person displayed or depicted in any obscene matter is under the age of 17 years:
(1) The general body growth and bone structure of the person;
(2) The development of pubic hair or body hair on the person;
(3) The development of the person's sexual organs;
(4) The context in which the person is placed by any accompanying printed or text material;
(5) Any expert testimony as to the degree of maturity of the person.
(c) The existence of any or all of the factors listed in subsection (b) of this section shall not operate to change the requirement that before any conviction may be had, the state must convince the factfinder beyond a reasonable doubt that the person engaged in the act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct in the visual depiction is under the age of 17 years.
Last modified: May 3, 2021