H.B. 228 Enrolled

1

PENALTY FOR HOMICIDE OF A CHILD
2 2007 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Carl Wimmer
5 Senate Sponsor: D. Chris Buttars
6 Cosponsors:
7 Ron Bigelow
8 Jim Bird
9 David Clark
10 Greg J. Curtis
11 Bradley M. Daw
12 John Dougall
13 Julie FisherCraig A. Frank
Gage Froerer
Keith Grover
Christopher N. Herrod
Gregory H. Hughes
Eric K. Hutchings
Michael T. Morley
Merlynn T. NewboldMichael E. Noel
Curtis Oda
Paul Ray
Stephen E. Sandstrom
Kenneth W. Sumsion
Aaron Tilton
Mark W. Walker 14
15 LONG TITLE
16 General Description:
17 This bill amends the Criminal Code to provide that murder of a child younger than 14
18 years of age is a capital felony.
19 Highlighted Provisions:
20 This bill:
21 . amends the definition of aggravated murder, which is a capital offense, to include
22 the intentional or knowing murder of a child younger than 14 years of age.
23 Monies Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 None
27 Utah Code Sections Affected:
28 AMENDS:
29 76-5-202, as last amended by Chapter 191, Laws of Utah 2006
30
31 Be it enacted by the Legislature of the state of Utah:

32 Section 1. Section 76-5-202 is amended to read:
33 76-5-202. Aggravated murder.
34 (1) Criminal homicide constitutes aggravated murder if the actor intentionally or
35 knowingly causes the death of another under any of the following circumstances:
36 (a) the homicide was committed by a person who is confined in a jail or other
37 correctional institution;
38 (b) the homicide was committed incident to one act, scheme, course of conduct, or
39 criminal episode during which two or more persons were killed, or during which the actor
40 attempted to kill one or more persons in addition to the victim who was killed;
41 (c) the actor knowingly created a great risk of death to a person other than the victim
42 and the actor;
43 (d) the homicide was committed incident to an act, scheme, course of conduct, or
44 criminal episode during which the actor committed or attempted to commit aggravated robbery,
45 robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon
46 a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child
47 abuse as defined in Subsection 76-5-109 (2)(a), or aggravated sexual assault, aggravated arson,
48 arson, aggravated burglary, burglary, aggravated kidnapping, kidnapping, or child kidnapping;
49 (e) the homicide was committed incident to one act, scheme, course of conduct, or
50 criminal episode during which the actor committed the crime of abuse or desecration of a dead
51 human body as defined in Subsection 76-9-704 (2)(e);
52 (f) the homicide was committed for the purpose of avoiding or preventing an arrest of
53 the defendant or another by a peace officer acting under color of legal authority or for the
54 purpose of effecting the defendant's or another's escape from lawful custody;
55 (g) the homicide was committed for pecuniary or other personal gain;
56 (h) the defendant committed, or engaged or employed another person to commit the
57 homicide pursuant to an agreement or contract for remuneration or the promise of remuneration
58 for commission of the homicide;
59 (i) the actor previously committed or was convicted of:

60 (i) aggravated murder, Section 76-5-202 ;
61 (ii) attempted aggravated murder, Section 76-5-202 ;
62 (iii) murder, Section 76-5-203 ;
63 (iv) attempted murder, Section 76-5-203 ; or
64 (v) an offense committed in another jurisdiction which if committed in this state would
65 be a violation of a crime listed in this Subsection (1)(i);
66 (j) the actor was previously convicted of:
67 (i) aggravated assault, Subsection 76-5-103 (2);
68 (ii) mayhem, Section 76-5-105 ;
69 (iii) kidnapping, Section 76-5-301 ;
70 (iv) child kidnapping, Section 76-5-301.1 ;
71 (v) aggravated kidnapping, Section 76-5-302 ;
72 (vi) rape, Section 76-5-402 ;
73 (vii) rape of a child, Section 76-5-402.1 ;
74 (viii) object rape, Section 76-5-402.2 ;
75 (ix) object rape of a child, Section 76-5-402.3 ;
76 (x) forcible sodomy, Section 76-5-403 ;
77 (xi) sodomy on a child, Section 76-5-403.1 ;
78 (xii) aggravated sexual abuse of a child, Section 76-5-404.1 ;
79 (xiii) aggravated sexual assault, Section 76-5-405 ;
80 (xiv) aggravated arson, Section 76-6-103 ;
81 (xv) aggravated burglary, Section 76-6-203 ;
82 (xvi) aggravated robbery, Section 76-6-302 ; or
83 (xvii) an offense committed in another jurisdiction which if committed in this state
84 would be a violation of a crime listed in this Subsection (1)(j);
85 (k) the homicide was committed for the purpose of:
86 (i) preventing a witness from testifying;
87 (ii) preventing a person from providing evidence or participating in any legal

88 proceedings or official investigation;
89 (iii) retaliating against a person for testifying, providing evidence, or participating in
90 any legal proceedings or official investigation; or
91 (iv) disrupting or hindering any lawful governmental function or enforcement of laws;
92 (l) the victim is or has been a local, state, or federal public official, or a candidate for
93 public office, and the homicide is based on, is caused by, or is related to that official position,
94 act, capacity, or candidacy;
95 (m) the victim is or has been a peace officer, law enforcement officer, executive
96 officer, prosecuting officer, jailer, prison official, firefighter, judge or other court official, juror,
97 probation officer, or parole officer, and the victim is either on duty or the homicide is based on,
98 is caused by, or is related to that official position, and the actor knew, or reasonably should
99 have known, that the victim holds or has held that official position;
100 (n) the homicide was committed:
101 (i) by means of a destructive device, bomb, explosive, incendiary device, or similar
102 device which was planted, hidden, or concealed in any place, area, dwelling, building, or
103 structure, or was mailed or delivered; or
104 (ii) by means of any weapon of mass destruction as defined in Section 76-10-401 ;
105 (o) the homicide was committed during the act of unlawfully assuming control of any
106 aircraft, train, or other public conveyance by use of threats or force with intent to obtain any
107 valuable consideration for the release of the public conveyance or any passenger, crew
108 member, or any other person aboard, or to direct the route or movement of the public
109 conveyance or otherwise exert control over the public conveyance;
110 (p) the homicide was committed by means of the administration of a poison or of any
111 lethal substance or of any substance administered in a lethal amount, dosage, or quantity;
112 (q) the victim was a person held or otherwise detained as a shield, hostage, or for
113 ransom;
114 (r) the homicide was committed in an especially heinous, atrocious, cruel, or
115 exceptionally depraved manner, any of which must be demonstrated by physical torture, serious

116 physical abuse, or serious bodily injury of the victim before death; [or]
117 (s) the actor dismembers, mutilates, or disfigures the victim's body, whether before or
118 after death, in a manner demonstrating the actor's depravity of mind[.]; or
119 (t) the victim was younger than 14 years of age.
120 (2) Aggravated murder is a capital felony.
121 (3) (a) It is an affirmative defense to a charge of aggravated murder or attempted
122 aggravated murder that the defendant caused the death of another or attempted to cause the
123 death of another:
124 (i) under the influence of extreme emotional distress for which there is a reasonable
125 explanation or excuse; or
126 (ii) under a reasonable belief that the circumstances provided a legal justification or
127 excuse for his conduct although the conduct was not legally justifiable or excusable under the
128 existing circumstances.
129 (b) Under Subsection (3)(a)(i), emotional distress does not include:
130 (i) a condition resulting from mental illness as defined in Section 76-2-305 ; or
131 (ii) distress that is substantially caused by the defendant's own conduct.
132 (c) The reasonableness of an explanation or excuse under Subsection (3)(a)(i) or the
133 reasonable belief of the actor under Subsection (3)(a)(ii) shall be determined from the
134 viewpoint of a reasonable person under the then existing circumstances.
135 (d) This affirmative defense reduces charges only as follows:
136 (i) aggravated murder to murder; and
137 (ii) attempted aggravated murder to attempted murder.