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First Substitute H.B. 44
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5 AN ACT RELATING TO CRIMINAL LAW; PROVIDING AFFIRMATIVE DEFENSES TO
6 CERTAIN HOMICIDE AND ATTEMPTED HOMICIDE OFFENSES; RESTRUCTURING THE
7 MANSLAUGHTER STATUTE TO REFLECT THESE CHANGES; AND PROVIDING
8 PROCEDURE AND LIMITATIONS REGARDING THE DEFENSES.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 76-5-202, as last amended by Chapter 11, Laws of Utah 1997
12 76-5-203, as last amended by Chapter 123, Laws of Utah 1996
13 76-5-205, as last amended by Chapter 177, Laws of Utah 1985
14 Be it enacted by the Legislature of the state of Utah:
15 Section 1. Section 76-5-202 is amended to read:
16 76-5-202. Aggravated murder.
17 (1) Criminal homicide constitutes aggravated murder if the actor intentionally or
18 knowingly causes the death of another under any of the following circumstances:
19 (a) the homicide was committed by a person who is confined in a jail or other correctional
20 institution;
21 (b) the homicide was committed incident to one act, scheme, course of conduct, or
22 criminal episode during which two or more persons were killed, or during which the actor
23 attempted to kill one or more persons in addition to the victim who was killed;
24 (c) the actor knowingly created a great risk of death to a person other than the victim and
25 the actor;
26 (d) the homicide was committed while the actor was engaged in the commission of, or an
27 attempt to commit, or flight after committing or attempting to commit, aggravated robbery,
28 robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon
29 a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child
30 abuse of a child under the age of 14 years, as otherwise defined in Subsection 76-5-109 (2)(a), or
31 aggravated sexual assault, aggravated arson, arson, aggravated burglary, burglary, aggravated
32 kidnaping, kidnaping, or child kidnaping;
33 (e) the homicide was committed for the purpose of avoiding or preventing an arrest of the
34 defendant or another by a peace officer acting under color of legal authority or for the purpose of
35 effecting the defendant's or another's escape from lawful custody;
36 (f) the homicide was committed for pecuniary or other personal gain;
37 (g) the defendant committed, or engaged or employed another person to commit the
38 homicide pursuant to an agreement or contract for remuneration or the promise of remuneration
39 for commission of the homicide;
40 (h) the actor was previously convicted of aggravated murder, murder, or of a felony
41 involving the use or threat of violence to a person. For the purpose of this subsection an offense
42 committed in another jurisdiction, which if committed in Utah would be punishable as aggravated
43 murder or murder, is considered aggravated murder or murder;
44 (i) the homicide was committed for the purpose of:
45 (i) preventing a witness from testifying;
46 (ii) preventing a person from providing evidence or participating in any legal proceedings
47 or official investigation;
48 (iii) retaliating against a person for testifying, providing evidence, or participating in any
49 legal proceedings or official investigation; or
50 (iv) disrupting or hindering any lawful governmental function or enforcement of laws;
51 (j) the victim is or has been a local, state, or federal public official, or a candidate for
52 public office, and the homicide is based on, is caused by, or is related to that official position, act,
53 capacity, or candidacy;
54 (k) the victim is or has been a peace officer, law enforcement officer, executive officer,
55 prosecuting officer, jailer, prison official, firefighter, judge or other court official, juror, probation
56 officer, or parole officer, and the victim is either on duty or the homicide is based on, is caused by,
57 or is related to that official position, and the actor knew, or reasonably should have known, that
58 the victim holds or has held that official position;
59 (l) the homicide was committed by means of a destructive device, bomb, explosive,
60 incendiary device, or similar device which was planted, hidden, or concealed in any place, area,
61 dwelling, building, or structure, or was mailed or delivered;
62 (m) the homicide was committed during the act of unlawfully assuming control of any
63 aircraft, train, or other public conveyance by use of threats or force with intent to obtain any
64 valuable consideration for the release of the public conveyance or any passenger, crew member,
65 or any other person aboard, or to direct the route or movement of the public conveyance or
66 otherwise exert control over the public conveyance;
67 (n) the homicide was committed by means of the administration of a poison or of any
68 lethal substance or of any substance administered in a lethal amount, dosage, or quantity;
69 (o) the victim was a person held or otherwise detained as a shield, hostage, or for ransom;
70 (p) the actor was under a sentence of life imprisonment or a sentence of death at the time
71 of the commission of the homicide; or
72 (q) the homicide was committed in an especially heinous, atrocious, cruel, or exceptionally
73 depraved manner, any of which must be demonstrated by physical torture, serious physical abuse,
74 or serious bodily injury of the victim before death.
75 (2) Aggravated murder is a capital offense.
76 (3) (a) It is an affirmative defense to a charge of aggravated murder or attempted
77 aggravated murder that the defendant caused the death of another or attempted to cause the death
78 of another:
79 (i) under the influence of extreme emotional distress for which there is a reasonable
80 explanation or excuse; or
81 (ii) under a reasonable belief that the circumstances provided a legal justification or excuse
82 for his conduct although the conduct was not legally justifiable or excusable under the existing
83 circumstances.
84 (b) Under Subsection (3)(a)(i), emotional distress does not include:
85 (i) a condition resulting from mental illness as defined in Section 76-2-305 ; or
86 (ii) distress that is substantially caused by the defendant's own conduct.
87 (c) The reasonableness of an explanation or excuse under Subsection (3)(a)(i) or the
88 reasonable belief of the actor under Subsection (3)(a)(ii) shall be determined from the viewpoint
89 of a reasonable person under the then existing circumstances.
90 (d) This affirmative defense reduces charges only as follows:
91 (i) aggravated murder to murder; and
92 (ii) attempted aggravated murder to attempted murder.
93 Section 2. Section 76-5-203 is amended to read:
94 76-5-203. Murder.
95 (1) Criminal homicide constitutes murder if the actor:
96 (a) intentionally or knowingly causes the death of another;
97 (b) intending to cause serious bodily injury to another commits an act clearly dangerous
98 to human life that causes the death of another;
99 (c) acting under circumstances evidencing a depraved indifference to human life engages
100 in conduct which creates a grave risk of death to another and thereby causes the death of another;
101 (d) while in the commission, attempted commission, or immediate flight from the
102 commission or attempted commission of aggravated robbery, robbery, rape, object rape, forcible
103 sodomy, or aggravated sexual assault, aggravated arson, arson, aggravated burglary, burglary,
104 aggravated kidnapping, kidnapping, child kidnapping, rape of a child, object rape of a child,
105 sodomy upon a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of
106 a child, or child abuse, as defined in Subsection 76-5-109 (2)(a), when the victim is younger than
107 14 years of age, causes the death of another person other than a party as defined in Section
108 76-2-202 ; [
109 (e) recklessly causes the death of a peace officer while in the commission or attempted
110 commission of:
111 (i) an assault against a peace officer as defined in Section 76-5-102.4 ; or
112 (ii) interference with a peace officer while making a lawful arrest as defined in Section
113 76-8-305 if the actor uses force against a peace officer[
114 (f) commits a homicide which would be aggravated murder, but the offense is reduced
115 pursuant to Subsection 76-5-202 (3).
116 (2) Murder is a first degree felony.
117 (3) (a) It is an affirmative defense to a charge of murder or attempted murder that the
118 defendant caused the death of another or attempted to cause the death of another:
119 (i) under the influence of extreme emotional distress for which there is a reasonable
120 explanation or excuse; or
121 (ii) under a reasonable belief that the circumstances provided a legal justification or excuse
122 for his conduct although the conduct was not legally justifiable or excusable under the existing
123 circumstances.
124 (b) Under Subsection (3)(a)(i) emotional distress does not include:
125 (i) a condition resulting from mental illness as defined in Section 76-2-305 ; or
126 (ii) distress that is substantially caused by the defendant's own conduct.
127 (c) The reasonableness of an explanation or excuse under Subsection (3)(a)(i) or the
128 reasonable belief of the actor under Subsection (3)(a)(ii) shall be determined from the viewpoint
129 of a reasonable person under the then existing circumstances.
130 (d) This affirmative defense reduces charges only as follows:
131 (i) murder to manslaughter; and
132 (ii) attempted murder to attempted manslaughter.
133 Section 3. Section 76-5-205 is amended to read:
134 76-5-205. Manslaughter.
135 (1) Criminal homicide constitutes manslaughter if the actor:
136 (a) recklessly causes the death of another; or
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147 (b) commits a homicide which would be murder, but the offense is reduced pursuant to
148 Subsection 76-5-203 (3).
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