Colorado Justices Say Old Statute Didn’t Cover AI-Generated Child Pornography

By: Michael Karlik | The Denver Gazette

Colorado law prior to 2025 did not criminalize, as a means of sexually exploiting a child, the use of artificial intelligence to generate nude images depicting real children, the state Supreme Court concluded on Monday.

The legislature acted this year to clearly establish a crime for someone to have or share fake, yet “highly realistic,” images of children that are explicitly sexual. However, the Supreme Court was asked to decide whether a teenager’s 2023 creation of “deepfake” porn was also illegal at the time.

No, it was not, the court concluded.

“Unfortunately, it took our legislature time to catch up to the recent advances in generative-AI technology,” wrote Justice Carlos A. Samour Jr. in the Oct. 13 opinion. Therefore, the defendant “cannot be penalized based on statutory provisions that came into effect after he allegedly engaged in the appalling conduct in question. As undesirable as it may be to deprive the named victims of their day in court in this proceeding, it is the result the law requires and thus the one we reach.”

Prosecutors in Morgan County filed charges against a Weldon Valley High School student, identified as S.G.H., for allegedly taking pictures of three female children and generating realistic deepfaked images of them with visible genitalia.

The charges for sexual exploitation of a child revolved around the existence of “sexually exploitative material.” A trial judge declined to dismiss the charges, believing the pre-2025 definition of the phrase encompassed S.G.H.’s alleged digital creation of explicit content using the faces of identifiable children.

During the appeal to the Supreme Court, prosecutor Madison M. Linton argued that the deepfakes drew from “real human intimate parts” to generate the simulated child bodies — something more realistic than superimposing a new body on an existing head.

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