Generative-AI Deepfake “Nudes” Were Not “Sexually Exploitative Material” Under Pre-2025 § 18-6-403; 2025 Amendments Changed (Not Clarified) the Law

I. Introduction

In re People of Int. of S.G.H., 2025 CO 59 is a Colorado Supreme Court original proceeding under C.A.R. 21 arising from a juvenile delinquency case in Morgan County. The People charged S.G.H. (age fourteen at the time) with six counts of sexual exploitation of a child under § 18-6-403, C.R.S. (2024)—three counts under § 18-6-403(3)(b) (preparation/production/making accessible) and three counts under § 18-6-403(3)(b.5) (access/possession/control).

The allegations involved the use of a generative-AI tool to create composite images: authentic photos of three underage classmates’ faces and clothed bodies were blended with computer-generated nude intimate body parts so the classmates appeared nude. The central legal issue was narrow but consequential: whether these AI-created composites qualified as “sexually exploitative material” as defined in § 18-6-403(2)(j) in December 2023, when the conduct allegedly occurred.

II. Summary of the Opinion

The Court held that the December 2023 version of § 18-6-403 did not criminalize S.G.H.’s alleged conduct because the images did not fall within the then-existing statutory definition of “sexually exploitative material.” Specifically, the statute covered certain types of visual material that were “digitally reproduced,” but the record showed S.G.H. allegedly created/produced/manipulated composite images using AI—not that he “reproduced” prohibited material.

The Court further held that the 2025 amendments (Senate Bill 25-288) expanding the definition to include realistic depictions “created, altered, or produced” by “digitization or computer-generated means” were changes to the law, not mere clarifications. Because there was no probable cause to support any of the six counts under the pre-2025 statute, the Court made the rule to show cause absolute and remanded with instructions to dismiss the charges.

III. Analysis

A. Precedents Cited

1. C.A.R. 21 and original jurisdiction

• People v. Sotade: Cited for the Court’s discretionary authority to exercise original jurisdiction under C.A.R. 21.
• People v. Rosas (quoting Villas at Highland Park Homeowners Ass'n v. Villas at Highland Park, LLC): Used to emphasize C.A.R. 21 as an “extraordinary remedy,” limited in purpose and availability.
• People v. Rowell: Supplies the familiar criteria justifying original jurisdiction (inadequate appellate remedy, irreparable harm, or significant public importance).

These cases did not decide the merits; they provided the gateway framework for why the Court intervened pretrial: the legal question was novel and of broad public importance, and requiring a juvenile to proceed to adjudication before appealing would be an inadequate remedy if the charges were legally unsupported.

2. Statutory interpretation methodology

• Bonde v. People: Cited for de novo review of statutory interpretation and the overarching duty to implement legislative intent.
• McCoy v. People: Anchors the Court’s emphasis on plain meaning in context, harmonious reading of the scheme, and avoidance of surplusage or absurd results.
• Vigil v. Franklin: Provides the rule that unambiguous statutes are applied as written without resort to extra-textual tools.

3. Using statutory history and legislative history

• Carrera v. People: Supports consulting statutory history when ambiguity exists and clarifies the distinction between “statutory history” and “legislative history.”
• Colo. Oil & Gas Conservation Comm'n v. Martinez: Referenced in the footnote discussion of legislative history concepts.

4. Change vs. clarification presumption for amendments

• City of Colo. Springs v. Powell: Central to the Court’s three-part test for deciding whether an amendment changed or merely clarified prior law, and for the presumption that amendments change the law absent evidence of clarification of ambiguity.

5. Background authority referenced

• United States v. Streett: Cited in a footnote to define “deepfake technology” as a generative-AI-enabled method for creating hyper-realistic falsified media.
• Leaming v. Unified Sch. Dist. No. 214: Quoted (via dissent) for the principle that “result-oriented justice” must yield to rule-of-law constraints—reinforcing the Court’s refusal to expand criminal liability beyond the statute’s text.

B. Legal Reasoning

1. The statutory element that did the work: “sexually exploitative material”

Although the charges were brought under § 18-6-403(3)(b) (conduct involving preparing/producing/making accessible) and § 18-6-403(3)(b.5) (conduct involving viewing/possessing/controlling), the Court treated “sexually exploitative material” as the essential limiting element: if the images do not meet the definition in § 18-6-403(2)(j), the charged conduct cannot be criminal under those subsections.

2. Textual focus on “reproduced” (and what the record did not show)

In December 2023, the definition in § 18-6-403(2)(j) covered specified forms of “visual material” that were “mechanically, electronically, chemically, or digitally reproduced.” The Court reasoned that the AI composites were digital, but the People did not establish they were “digitally reproduced,” as opposed to being digitally created or altered. The Court treated this as dispositive: the prosecution theory (S.G.H. “prepared/produced/made” the images) did not match the statutory definition’s “reproduced” limitation.

The Court also drew a conceptual line between a “photograph” (an image produced by exposing radiant energy to a sensitive surface) and AI composites that synthesize original and computer-generated content, underscoring why the images did not neatly fit the statute’s enumerated media categories.

3. Statutory and legislative history: why “digitally reproduced” was not read to include AI-fabricated composites

Even while acknowledging “reproduced” can have multiple dictionary meanings, the Court examined history to determine the legislature’s intent:

• 1979 origin: “reproduced” existed in the original definition, reflecting a focus on capturing/copying visual depictions.
• 1998 amendment (H.B. 98-1177): added “digital[]” reproductions, which the Court read as targeting digital distribution of copies of prohibited images, not the later-emerging phenomenon of AI-based fabrication.

The Court emphasized that the legislature used “produced” elsewhere in § 18-6-403 (notably in the offense description) but did not incorporate “produced” into the 2023 definition of “sexually exploitative material.” That omission mattered: the Court read the statute as drawing a boundary between prohibited categories of material (definition) and the many ways one might handle that material (offense subsections).

4. The 2025 amendments as corroboration—and as non-retroactive change

The Court treated the 2025 revisions (Senate Bill 25-288) as powerful confirmation that a “generative-AI gap” existed in the pre-2025 statute. The new definition explicitly includes realistic depictions “created, altered, or produced” by “digitization or computer-generated means” and depicts an identifiable child “in whole or in part.” The Court emphasized additional 2025 additions (including references to “computer-generated material,” “digital depictions,” and newly defined terms like “generative AI”) as consistent with modernization rather than clarification.

5. Clarification vs. change: applying the Powell framework

Relying on City of Colo. Springs v. Powell, the Court used the three-part test and found change (not clarification) because:

1. Plain language: the amendments add new concepts (“created/altered/produced,” “digitization,” “computer-generated means,” “in whole or in part”) rather than explain existing ones.
2. Legislative history of the amendment: sponsor remarks described “closing the technological loophole” and “put[ting] Colorado on the same level” as other jurisdictions—language typical of reform, not clarification.
3. No pre-amendment ambiguity needing clarification: the Court saw the earlier statute as simply outmoded rather than unclear; the legislature was responding to technological change.

C. Impact

• Charging boundaries for pre-2025 conduct: Prosecutors cannot use the pre-2025 version of § 18-6-403 to reach generative-AI composite depictions unless the statutory definition’s “reproduced” requirement is met on the evidence. The decision functions as a statutory-limits case: reprehensible conduct is not punishable under a statute that does not cover it.
• Interpretive signal for technology-driven gaps: The Court’s analysis reinforces that courts will not expand criminal statutes by “purpose” alone (e.g., broad protective declarations) when definitional text is narrower.
• Post-2025 prosecutions: The opinion effectively maps how the 2025 amendments newly capture AI-created/altered depictions. Future cases will likely focus on (a) what is “realistic,” (b) what makes a child “identifiable,” and (c) proof that an image was “created, altered, or produced” by covered means.
• Legislative drafting lesson: The case highlights the centrality of definitional sections in criminal statutes and the risk that offense subsections can appear broad while definitions silently narrow coverage.

IV. Complex Concepts Simplified

Probable cause (preliminary hearing)

A screening standard: whether there is a fair probability that the defendant committed the charged offense. If an essential element (here, “sexually exploitative material”) is not supported by evidence as defined by statute, probable cause fails.

C.A.R. 21 original proceeding / “rule to show cause”

An extraordinary, discretionary procedure allowing the Supreme Court to intervene mid-case. A “rule to show cause” order requires the lower court/party to justify the challenged ruling; making it “absolute” means the Supreme Court grants relief.

Statutory history vs. legislative history

“Statutory history” is how the statute’s text changed over time; “legislative history” is the record of the legislative process (committee hearings, sponsor statements, bill summaries).

Clarifying vs. changing amendments

Courts presume amendments change the law. That presumption is rebutted only when the legislature amends to resolve an ambiguity (i.e., unclear meaning) rather than to expand or update coverage.

“Digitally reproduced” vs. AI-created composites

“Reproduced” generally implies copying or faithfully capturing an existing depiction. AI composites—blending a real child’s face/body with fabricated nude parts—can be “created” or “altered” without being a “reproduction” of an existing explicit image.

V. Conclusion

In re People of Int. of S.G.H. establishes a clear rule about the limits of Colorado’s pre-2025 child sexual exploitation statute: AI-generated or AI-altered “deepfake nude” composites of real minors were not covered by the then-existing definition of “sexually exploitative material” in § 18-6-403(2)(j) because the statute focused on specified visual materials that were “reproduced,” not newly “created” or “altered” by computer-generated means. The Court further held that Colorado’s 2025 statutory overhaul addressing “digitization,” “computer-generated” depictions, and “generative AI” was a substantive modernization—i.e., a change in law—rather than a clarification that could be applied to earlier conduct.

The opinion is ultimately a rule-of-law decision: even where alleged conduct is socially and personally devastating, criminal liability must be anchored in the legislature’s enacted text, and technological novelty cannot be used to stretch definitions beyond their statutory limits.