H.B. 228

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
7 LONG TITLE
8 General Description:
9 This bill amends the Criminal Code to provide that murder of a child younger than 14
10 years of age is a capital felony.
11 Highlighted Provisions:
12 This bill:
13 . amends the definition of aggravated murder, which is a capital offense, to include
14 the intentional or knowing murder of a child younger than 14 years of age.
15 Monies Appropriated in this Bill:
16 None
17 Other Special Clauses:
18 None
19 Utah Code Sections Affected:
20 AMENDS:
21 76-5-202, as last amended by Chapter 191, Laws of Utah 2006
22
23 Be it enacted by the Legislature of the state of Utah:
24 Section 1. Section 76-5-202 is amended to read:
25 76-5-202. Aggravated murder.
26 (1) Criminal homicide constitutes aggravated murder if the actor intentionally or
27 knowingly causes the death of another under any of the following circumstances:

28 (a) the homicide was committed by a person who is confined in a jail or other
29 correctional institution;
30 (b) the homicide was committed incident to one act, scheme, course of conduct, or
31 criminal episode during which two or more persons were killed, or during which the actor
32 attempted to kill one or more persons in addition to the victim who was killed;
33 (c) the actor knowingly created a great risk of death to a person other than the victim
34 and the actor;
35 (d) the homicide was committed incident to an act, scheme, course of conduct, or
36 criminal episode during which the actor committed or attempted to commit aggravated robbery,
37 robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon
38 a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child
39 abuse as defined in Subsection 76-5-109 (2)(a), or aggravated sexual assault, aggravated arson,
40 arson, aggravated burglary, burglary, aggravated kidnapping, kidnapping, or child kidnapping;
41 (e) the homicide was committed incident to one act, scheme, course of conduct, or
42 criminal episode during which the actor committed the crime of abuse or desecration of a dead
43 human body as defined in Subsection 76-9-704 (2)(e);
44 (f) the homicide was committed for the purpose of avoiding or preventing an arrest of
45 the defendant or another by a peace officer acting under color of legal authority or for the
46 purpose of effecting the defendant's or another's escape from lawful custody;
47 (g) the homicide was committed for pecuniary or other personal gain;
48 (h) the defendant committed, or engaged or employed another person to commit the
49 homicide pursuant to an agreement or contract for remuneration or the promise of remuneration
50 for commission of the homicide;
51 (i) the actor previously committed or was convicted of:
52 (i) aggravated murder, Section 76-5-202 ;
53 (ii) attempted aggravated murder, Section 76-5-202 ;
54 (iii) murder, Section 76-5-203 ;
55 (iv) attempted murder, Section 76-5-203 ; or
56 (v) an offense committed in another jurisdiction which if committed in this state would
57 be a violation of a crime listed in this Subsection (1)(i);
58 (j) the actor was previously convicted of:

59 (i) aggravated assault, Subsection 76-5-103 (2);
60 (ii) mayhem, Section 76-5-105 ;
61 (iii) kidnapping, Section 76-5-301 ;
62 (iv) child kidnapping, Section 76-5-301.1 ;
63 (v) aggravated kidnapping, Section 76-5-302 ;
64 (vi) rape, Section 76-5-402 ;
65 (vii) rape of a child, Section 76-5-402.1 ;
66 (viii) object rape, Section 76-5-402.2 ;
67 (ix) object rape of a child, Section 76-5-402.3 ;
68 (x) forcible sodomy, Section 76-5-403 ;
69 (xi) sodomy on a child, Section 76-5-403.1 ;
70 (xii) aggravated sexual abuse of a child, Section 76-5-404.1 ;
71 (xiii) aggravated sexual assault, Section 76-5-405 ;
72 (xiv) aggravated arson, Section 76-6-103 ;
73 (xv) aggravated burglary, Section 76-6-203 ;
74 (xvi) aggravated robbery, Section 76-6-302 ; or
75 (xvii) an offense committed in another jurisdiction which if committed in this state
76 would be a violation of a crime listed in this Subsection (1)(j);
77 (k) the homicide was committed for the purpose of:
78 (i) preventing a witness from testifying;
79 (ii) preventing a person from providing evidence or participating in any legal
80 proceedings or official investigation;
81 (iii) retaliating against a person for testifying, providing evidence, or participating in
82 any legal proceedings or official investigation; or
83 (iv) disrupting or hindering any lawful governmental function or enforcement of laws;
84 (l) the victim is or has been a local, state, or federal public official, or a candidate for
85 public office, and the homicide is based on, is caused by, or is related to that official position,
86 act, capacity, or candidacy;
87 (m) the victim is or has been a peace officer, law enforcement officer, executive
88 officer, prosecuting officer, jailer, prison official, firefighter, judge or other court official, juror,
89 probation officer, or parole officer, and the victim is either on duty or the homicide is based on,

90 is caused by, or is related to that official position, and the actor knew, or reasonably should
91 have known, that the victim holds or has held that official position;
92 (n) the homicide was committed:
93 (i) by means of a destructive device, bomb, explosive, incendiary device, or similar
94 device which was planted, hidden, or concealed in any place, area, dwelling, building, or
95 structure, or was mailed or delivered; or
96 (ii) by means of any weapon of mass destruction as defined in Section 76-10-401 ;
97 (o) the homicide was committed during the act of unlawfully assuming control of any
98 aircraft, train, or other public conveyance by use of threats or force with intent to obtain any
99 valuable consideration for the release of the public conveyance or any passenger, crew
100 member, or any other person aboard, or to direct the route or movement of the public
101 conveyance or otherwise exert control over the public conveyance;
102 (p) the homicide was committed by means of the administration of a poison or of any
103 lethal substance or of any substance administered in a lethal amount, dosage, or quantity;
104 (q) the victim was a person held or otherwise detained as a shield, hostage, or for
105 ransom;
106 (r) the homicide was committed in an especially heinous, atrocious, cruel, or
107 exceptionally depraved manner, any of which must be demonstrated by physical torture, serious
108 physical abuse, or serious bodily injury of the victim before death; [or]
109 (s) the actor dismembers, mutilates, or disfigures the victim's body, whether before or
110 after death, in a manner demonstrating the actor's depravity of mind[.]; or
111 (t) the victim was younger than 14 years of age.
112 (2) Aggravated murder is a capital felony.
113 (3) (a) It is an affirmative defense to a charge of aggravated murder or attempted
114 aggravated murder that the defendant caused the death of another or attempted to cause the
115 death of another:
116 (i) under the influence of extreme emotional distress for which there is a reasonable
117 explanation or excuse; or
118 (ii) under a reasonable belief that the circumstances provided a legal justification or
119 excuse for his conduct although the conduct was not legally justifiable or excusable under the
120 existing circumstances.

121 (b) Under Subsection (3)(a)(i), emotional distress does not include:
122 (i) a condition resulting from mental illness as defined in Section 76-2-305 ; or
123 (ii) distress that is substantially caused by the defendant's own conduct.
124 (c) The reasonableness of an explanation or excuse under Subsection (3)(a)(i) or the
125 reasonable belief of the actor under Subsection (3)(a)(ii) shall be determined from the
126 viewpoint of a reasonable person under the then existing circumstances.
127 (d) This affirmative defense reduces charges only as follows:
128 (i) aggravated murder to murder; and
129 (ii) attempted aggravated murder to attempted murder.




Legislative Review Note
as of 11-16-06 10:29 AM

Office of Legislative Research and General Counsel