Earlier this month, Colorado’s governor signed a bill making it a crime for someone to have or share fake, yet “highly realistic,” images of children that are explicitly sexual.

But prior to that, did state law allow someone to be prosecuted for generating a sexually explicit image with a real child using their photo and an artificial intelligence tool?

During oral arguments to the state Supreme Court on Wednesday, Chief Justice Monica M. Márquez observed the pre-2025 law deemed sexual exploitation of children to be a “wrongful invasion” of privacy, causing emotional and developmental injury.

“Why doesn’t that apply here, even when we’re talking about a digitally altered or digitally generated photograph? The child is identifiable. Does it not result in that very type of harm?” she asked.

Defense attorney Michael S. Juba responded that “deepfaked” child porn is a “new harm” that Colorado law did not address until 2025.

“A lot of folks will probably resist what you’re suggesting because of the underlying immorality of what’s involved,” said Justice William W. Hood III. “We kind of want the language to encompass it. Why should we resist the urge to say, ‘It does encompass it?'”

Because of the nature of the case, the Supreme Court has blocked public access to the filings and underlying facts of the appeal. However, based on information disclosed during oral arguments, prosecutors in Morgan County filed charges against a juvenile defendant, identified as S.G.H., for allegedly taking pictures of three female children and generating realistic deepfaked images of them with visible genitalia.

This year, the legislature enacted Senate Bill 288, which established civil and criminal offenses for using computers to generate and disseminate “a highly realistic” sexual depiction of a recognizable child. However, prior to the change, Colorado law described sexually exploitative material as depicting the genitals “of the human male or female child.”

The question before the justices, in essence, is what to do about depictions that included the real face of a child, but were otherwise produced from source material of AI tools.

“There’s an ‘ick factor’ here and it’s troubling. There was an injury to these children and it’s troubling. But I struggle with the definition,” said Justice Richard L. Gabriel. “How do we have a display of male or female genitals here?”

Prosecutor Madison M. Linton responded 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.

“I think there’s plenty of notice for individuals in our state to know that it is a crime to create child pornography. I think in the most simple of terms here, what (S.G.H.) did was create child pornography,” she said.

What about a “pedophile who happens to be a good artist,” asked Gabriel, who draws a picture not based on any real child? Perhaps, responded Linton, as “the realism is where the real harm is.”

Justice Carlos A. Samour Jr. interjected that prior to the 2025 legislation, the law said nothing about realism.

“I just have a hard time believing that when the legislature passed that law, they were thinking about this particular scenario,” he said, referring to the pre-2025 status quo. “It seems to me they were not. There was a gap. And that gap was identified in 2025.”

Juba, the defense lawyer, characterized the government’s position as “if it’s bad AI, then it’s not a crime. But if it’s good AI, then that’s where the crime falls.”

“This court can’t legislate from the bench and say, ‘This is a harm we want to avoid. So, we’re going to interpret the plain language of the 2024 version in a way to avoid that harm,'” he said.

Still, Gabriel was uncertain that the pre-2025 law categorically prevented criminal liability for deepfaked child porn, as such creations could trigger the same harms the legislature identified for non-AI-generated materials.

“I think it is at least arguable that we have it depicting a child engaged in explicit conduct. We have an actual child’s head on there, at least,” he said.

The case is People in the Interest of S.G.H.