In the Interest of S.G.H. 578 P.3d 505 (Colo. App. 2025)

The Colorado Supreme Court held that generative AI images using “deepfake technology” purportedly created by S.G.H., were not prohibited by the relevant statutory provisions in effect on the dates of the charged offenses, and therefore his case must be dismissed.

The court ¶37 For three reasons, we infer from the statutory and legislative histories of subsection (2)(j) that “digitally reproduced” does not include the explicit images allegedly created by S.G.H. using generative AI. First, given that the term “digitally reproduced” was integrated into the subsection (2)(j) definition of sexually exploitative material in 1998, decades before generative-AI tools became widespread, it is all but impossible that the legislature envisioned images created using that technology as falling within the scope of “digitally reproduced.” Second, the legislature’s express intent in bringing certain “digitally reproduced” images within the scope of the subsection (2)(j) definition of sexually exploitative material was to target the digital distribution of copies of forbidden images, not the digital production of such images.8 And third, despite using “produced” (or a variation of it) multiple times in section 18-6-403, including when describing the crime of sexual exploitation of a child in subsection (3)(b), the legislature chose to omit that word (and any variation of it) from the subsection (2)(j) definition of sexually exploitative material in effect in December 2023, opting instead to use “reproduced” in that definition.

¶38 Reproduction in this context implies fidelity to the source. Indeed, photographs, motion pictures, videos, and the other items listed in subsection (2)(j) all faithfully capture a visual image. They do not distort, manipulate, modify, or fabricate a visual image. In this case, we deal with distortion, manipulation, modification, and fabrication, not reproduction: The images stored in S.G.H.’s email account are fabricated images that were digitally produced by distorting, manipulating, or modifying photographs.

¶39 Because the People did not present any evidence that the activity S.G.H. engaged in involved the digital reproduction of images or otherwise met the definition of sexually exploitative material, they failed to establish probable cause to believe that he violated either subsection (3)(b) or subsection (3)(b.5). Therefore, we conclude that the district court erred in finding probable cause as to all
six charges.”