H.B. 462 Enrolled

1

CRIMINAL HOMICIDE AND ABORTION REVISIONS
2 2010 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Carl Wimmer
5 Senate Sponsor: Margaret Dayton
6
7 LONG TITLE
8 General Description:
9 This bill amends provisions of the Utah Criminal Code to describe the difference
10 between abortion and criminal homicide of an unborn child and to remove prohibitions
11 against prosecution of a woman for killing an unborn child or committing criminal
12 homicide of an unborn child.
13 Highlighted Provisions:
14 This bill:
15 . provides that, for aggravated murder, the aggravating factor of the victim being
16 under the age of 14 years does not apply to the homicide of an unborn child;
17 . provides that a person is not guilty of criminal homicide of an unborn child if the
18 sole reason for the death of the unborn child is that the person refused to consent to
19 medical treatment or a cesarean section or failed to follow medical advice;
20 . provides that a woman is not guilty of criminal homicide of her own unborn child if
21 the death of her unborn child:
22 . is caused by a criminally negligent or reckless act of the woman; and
23 . is not caused by an intentional or knowing act of the woman;
24 . defines terms, including amending the definition of abortion to relate only to a
25 medical procedure carried out by a physician, or through a substance used under
26 the direction of a physician, with the consent of the woman on whom the abortion
27 is performed;
28 . describes the difference between abortion and criminal homicide of an unborn
29 child;

30 . removes prohibitions against prosecution of a woman for killing an unborn child or
31 committing criminal homicide of an unborn child;
32 . clarifies that a woman is not criminally liable for seeking to obtain, or obtaining, an
33 abortion that is permitted by law; and
34 . makes technical changes.
35 Monies Appropriated in this Bill:
36 None
37 Other Special Clauses:
38 This bill provides an immediate effective date.
39 This bill coordinates with H.B. 12, Criminal Homicide and Abortion Amendments, by
40 providing superseding amendments.
41 Utah Code Sections Affected:
42 AMENDS:
43 76-5-201, as last amended by Laws of Utah 2002, Chapter 327
44 76-5-202, as last amended by Laws of Utah 2009, Chapters 157 and 206
45 76-7-301, as last amended by Laws of Utah 2004, Chapters 90 and 272
46 76-7-302, as last amended by Laws of Utah 2009, Chapter 38
47 76-7-314, as last amended by Laws of Utah 2009, Chapter 38
48 76-7-314.5, as enacted by Laws of Utah 2009, Chapter 38
49 76-7-327, as enacted by Laws of Utah 2004, Chapter 272
50 ENACTS:
51 76-7-301.5, Utah Code Annotated 1953
52 REPEALS:
53 76-7-329, as enacted by Laws of Utah 2004, Chapter 272
54 Utah Code Sections Affected by Coordination Clause:
55 The sections contained in H.B. 12, Criminal Homicide and Abortion Amendments.
56
57 Be it enacted by the Legislature of the state of Utah:

58 Section 1. Section 76-5-201 is amended to read:
59 76-5-201. Criminal homicide -- Elements -- Designations of offenses.
60 (1) (a) [A] Except as provided in Subsections (3) and (4), a person commits criminal
61 homicide if [he] the person intentionally, knowingly, recklessly, with criminal negligence, or
62 acting with a mental state otherwise specified in the statute defining the offense, causes the
63 death of another human being, including an unborn child at any stage of its development.
64 (b) There shall be no cause of action for criminal homicide for the death of an unborn
65 child caused by an abortion, as defined in Section 76-7-301 .
66 (2) Criminal homicide is aggravated murder, murder, manslaughter, child abuse
67 homicide, homicide by assault, negligent homicide, or automobile homicide.
68 (3) A person is not guilty of criminal homicide of an unborn child if the sole reason
69 for the death of the unborn child is that the person:
70 (a) refused to consent to:
71 (i) medical treatment; or
72 (ii) a cesarean section; or
73 (b) failed to follow medical advice.
74 (4) A woman is not guilty of criminal homicide of her own unborn child if the death of
75 her unborn child:
76 (a) is caused by a criminally negligent act or reckless act of the woman; and
77 (b) is not caused by an intentional or knowing act of the woman.
78 Section 2. Section 76-5-202 is amended to read:
79 76-5-202. Aggravated murder.
80 (1) Criminal homicide constitutes aggravated murder if the actor intentionally or
81 knowingly causes the death of another under any of the following circumstances:
82 (a) the homicide was committed by a person who is confined in a jail or other
83 correctional institution;
84 (b) the homicide was committed incident to one act, scheme, course of conduct, or
85 criminal episode during which two or more persons were killed, or during which the actor

86 attempted to kill one or more persons in addition to the victim who was killed;
87 (c) the actor knowingly created a great risk of death to a person other than the victim
88 and the actor;
89 (d) the homicide was committed incident to an act, scheme, course of conduct, or
90 criminal episode during which the actor committed or attempted to commit aggravated
91 robbery, robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy,
92 sodomy upon a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse
93 of a child, child abuse as defined in Subsection 76-5-109 (2)(a), or aggravated sexual assault,
94 aggravated arson, arson, aggravated burglary, burglary, aggravated kidnapping, or kidnapping,
95 or child kidnapping;
96 (e) the homicide was committed incident to one act, scheme, course of conduct, or
97 criminal episode during which the actor committed the crime of abuse or desecration of a dead
98 human body as defined in Subsection 76-9-704 (2)(e);
99 (f) the homicide was committed for the purpose of avoiding or preventing an arrest of
100 the defendant or another by a peace officer acting under color of legal authority or for the
101 purpose of effecting the defendant's or another's escape from lawful custody;
102 (g) the homicide was committed for pecuniary gain;
103 (h) the defendant committed, or engaged or employed another person to commit the
104 homicide pursuant to an agreement or contract for remuneration or the promise of
105 remuneration for commission of the homicide;
106 (i) the actor previously committed or was convicted of:
107 (i) aggravated murder under this section;
108 (ii) attempted aggravated murder under this section;
109 (iii) murder, Section 76-5-203 ;
110 (iv) attempted murder, Section 76-5-203 ; or
111 (v) an offense committed in another jurisdiction which if committed in this state
112 would be a violation of a crime listed in this Subsection (1)(i);
113 (j) the actor was previously convicted of:

114 (i) aggravated assault, Subsection 76-5-103 (2);
115 (ii) mayhem, Section 76-5-105 ;
116 (iii) kidnapping, Section 76-5-301 ;
117 (iv) child kidnapping, Section 76-5-301.1 ;
118 (v) aggravated kidnapping, Section 76-5-302 ;
119 (vi) rape, Section 76-5-402 ;
120 (vii) rape of a child, Section 76-5-402.1 ;
121 (viii) object rape, Section 76-5-402.2 ;
122 (ix) object rape of a child, Section 76-5-402.3 ;
123 (x) forcible sodomy, Section 76-5-403 ;
124 (xi) sodomy on a child, Section 76-5-403.1 ;
125 (xii) aggravated sexual abuse of a child, Section 76-5-404.1 ;
126 (xiii) aggravated sexual assault, Section 76-5-405 ;
127 (xiv) aggravated arson, Section 76-6-103 ;
128 (xv) aggravated burglary, Section 76-6-203 ;
129 (xvi) aggravated robbery, Section 76-6-302 ;
130 (xvii) felony discharge of a firearm, Section 76-10-508.1 ; or
131 (xviii) an offense committed in another jurisdiction which if committed in this state
132 would be a violation of a crime listed in this Subsection (1)(j);
133 (k) the homicide was committed for the purpose of:
134 (i) preventing a witness from testifying;
135 (ii) preventing a person from providing evidence or participating in any legal
136 proceedings or official investigation;
137 (iii) retaliating against a person for testifying, providing evidence, or participating in
138 any legal proceedings or official investigation; or
139 (iv) disrupting or hindering any lawful governmental function or enforcement of laws;
140 (l) the victim is or has been a local, state, or federal public official, or a candidate for
141 public office, and the homicide is based on, is caused by, or is related to that official position,

142 act, capacity, or candidacy;
143 (m) the victim is or has been a peace officer, law enforcement officer, executive
144 officer, prosecuting officer, jailer, prison official, firefighter, judge or other court official,
145 juror, probation officer, or parole officer, and the victim is either on duty or the homicide is
146 based on, is caused by, or is related to that official position, and the actor knew, or reasonably
147 should have known, that the victim holds or has held that official position;
148 (n) the homicide was committed:
149 (i) by means of a destructive device, bomb, explosive, incendiary device, or similar
150 device which was planted, hidden, or concealed in any place, area, dwelling, building, or
151 structure, or was mailed or delivered; or
152 (ii) by means of any weapon of mass destruction as defined in Section 76-10-401 ;
153 (o) the homicide was committed during the act of unlawfully assuming control of any
154 aircraft, train, or other public conveyance by use of threats or force with intent to obtain any
155 valuable consideration for the release of the public conveyance or any passenger, crew
156 member, or any other person aboard, or to direct the route or movement of the public
157 conveyance or otherwise exert control over the public conveyance;
158 (p) the homicide was committed by means of the administration of a poison or of any
159 lethal substance or of any substance administered in a lethal amount, dosage, or quantity;
160 (q) the victim was a person held or otherwise detained as a shield, hostage, or for
161 ransom;
162 (r) the homicide was committed in an especially heinous, atrocious, cruel, or
163 exceptionally depraved manner, any of which must be demonstrated by physical torture,
164 serious physical abuse, or serious bodily injury of the victim before death;
165 (s) the actor dismembers, mutilates, or disfigures the victim's body, whether before or
166 after death, in a manner demonstrating the actor's depravity of mind; or
167 (t) the victim, at the time of the death of the victim:
168 (i) was younger than 14 years of age[.]; and
169 (ii) was not an unborn child.

170 (2) Criminal homicide constitutes aggravated murder if the actor, with reckless
171 indifference to human life, causes the death of another incident to an act, scheme, course of
172 conduct, or criminal episode during which the actor is a major participant in the commission
173 or attempted commission of:
174 (a) child abuse, Subsection 76-5-109 (2)(a);
175 (b) child kidnapping, Section 76-5-301.1 ;
176 (c) rape of a child, Section 76-5-402.1 ;
177 (d) object rape of a child, Section 76-5-402.3 ;
178 (e) sodomy on a child, Section 76-5-403.1 ; or
179 (f) sexual abuse or aggravated sexual abuse of a child, Section 76-5-404.1 .
180 (3) (a) If a notice of intent to seek the death penalty has been filed, aggravated murder
181 is a capital felony.
182 (b) If a notice of intent to seek the death penalty has not been filed, aggravated murder
183 is a noncapital first degree felony punishable by imprisonment for life without parole or by an
184 indeterminate term of not less than 20 years and which may be for life.
185 (c) (i) Within 60 days after arraignment of the defendant, the prosecutor may file
186 notice of intent to seek the death penalty. The notice shall be served on the defendant or
187 defense counsel and filed with the court.
188 (ii) Notice of intent to seek the death penalty may be served and filed more than 60
189 days after the arraignment upon written stipulation of the parties or upon a finding by the court
190 of good cause.
191 (d) Without the consent of the prosecutor, the court may not accept a plea of guilty to
192 noncapital first degree felony aggravated murder during the period in which the prosecutor
193 may file a notice of intent to seek the death penalty under Subsection (3)(c)(i).
194 (4) (a) It is an affirmative defense to a charge of aggravated murder or attempted
195 aggravated murder that the defendant caused the death of another or attempted to cause the
196 death of another under a reasonable belief that the circumstances provided a legal justification
197 or excuse for the conduct although the conduct was not legally justifiable or excusable under

198 the existing circumstances.
199 (b) The reasonable belief of the actor under Subsection (4)(a) shall be determined from
200 the viewpoint of a reasonable person under the then existing circumstances.
201 (c) This affirmative defense reduces charges only as follows:
202 (i) aggravated murder to murder; and
203 (ii) attempted aggravated murder to attempted murder.
204 (5) (a) Any aggravating circumstance described in Subsection (1) or (2) that
205 constitutes a separate offense does not merge with the crime of aggravated murder.
206 (b) A person who is convicted of aggravated murder, based on an aggravating
207 circumstance described in Subsection (1) or (2) that constitutes a separate offense, may also be
208 convicted of, and punished for, the separate offense.
209 Section 3. Section 76-7-301 is amended to read:
210 76-7-301. Definitions.
211 As used in this part:
212 (1) (a) "Abortion" means:
213 (i) the intentional termination or attempted termination of human pregnancy after
214 implantation of a fertilized ovum[, and includes any and all procedures undertaken to kill a
215 live unborn child and includes all procedures undertaken to produce a miscarriage.] through a
216 medical procedure carried out by a physician or through a substance used under the direction
217 of a physician;
218 (ii) the intentional killing or attempted killing of a live unborn child through a medical
219 procedure carried out by a physician or through a substance used under the direction of a
220 physician; or
221 (iii) the intentional causing or attempted causing of a miscarriage through a medical
222 procedure carried out by a physician or through a substance used under the direction of a
223 physician.
224 (b) "Abortion" does not include:
225 (i) removal of a dead unborn child[.];

226 (ii) removal of an ectopic pregnancy; or
227 (iii) the killing or attempted killing of an unborn child without the consent of the
228 pregnant woman, unless:
229 (A) the killing or attempted killing is done through a medical procedure carried out by
230 a physician or through a substance used under the direction of a physician; and
231 (B) the physician is unable to obtain the consent due to a medical emergency.
232 (2) "Medical emergency" means that condition which, on the basis of the physician's
233 good faith clinical judgment, so threatens the life of a pregnant woman as to necessitate the
234 immediate abortion of her pregnancy to avert her death, or for which a delay will create
235 serious risk of substantial and irreversible impairment of major bodily function.
236 (3) (a) "Partial birth abortion" means an abortion in which the person performing the
237 abortion:
238 (i) deliberately and intentionally vaginally delivers a living fetus until, in the case of a
239 head first presentation, the entire fetal head is outside the body of the mother, or, in the case of
240 breech presentation, any part of the fetal trunk past the navel is outside the body of the mother,
241 for the purpose of performing an overt act that the person knows will kill the partially
242 delivered living fetus; and
243 (ii) performs the overt act, other than completion of delivery, that kills the partially
244 living fetus.
245 (b) "Partial birth abortion" does not include the dilation and evacuation procedure
246 involving dismemberment prior to removal, the suction curettage procedure, or the suction
247 aspiration procedure for abortion.
248 (4) "Physician" means:
249 (a) a medical doctor licensed to practice medicine and surgery under Title 58, Chapter
250 67, Utah Medical Practice Act[, a physician in the employment of the government of the
251 United States who is similarly qualified, or];
252 (b) an osteopathic physician licensed to practice osteopathic medicine under Title 58,
253 Chapter 68, Utah Osteopathic Medical Practice Act[.]; or

254 (c) a physician employed by the federal government who has qualifications similar to
255 a person described in Subsection (4)(a) or (b).
256 (5) "Hospital" means:
257 (a) a general hospital licensed by the Department of Health according to Title 26,
258 Chapter 21, Health Care Facility Licensing and Inspection Act[, and includes]; and
259 (b) a clinic or other medical facility to the extent that such clinic or other medical
260 facility [provides] is certified by the Department of Health as providing equipment and
261 personnel sufficient in quantity and quality to provide the same degree of safety to the
262 pregnant woman and the unborn child as would be provided for the particular medical
263 procedures undertaken by a general hospital licensed by the Department of Health. [It shall be
264 the responsibility of the Department of Health to determine if such clinic or other medical
265 facility so qualifies and to so certify.]
266 Section 4. Section 76-7-301.5 is enacted to read:
267 76-7-301.5. Relationship to criminal homicide.
268 (1) This part does not apply to the killing or attempted killing of a live unborn child in
269 any manner that is not an abortion.
270 (2) The killing or attempted killing of a live unborn child in a manner that is not an
271 abortion shall be punished as provided in Title 76, Chapter 5, Part 2, Criminal Homicide.
272 Section 5. Section 76-7-302 is amended to read:
273 76-7-302. Circumstances under which abortion authorized.
274 (1) As used in this section, "viable" means that the unborn child has reached a stage of
275 fetal development when the unborn child is potentially able to live outside the womb, as
276 determined by the attending physician to a reasonable degree of medical certainty.
277 (2) An abortion may be performed in this state only by a physician [licensed to
278 practice medicine under Title 58, Chapter 67, Utah Medical Practice Act or an osteopathic
279 physician licensed to practice medicine under Title 58, Chapter 68, Utah Osteopathic Medical
280 Practice Act].
281 (3) An abortion may be performed in this state only under the following

282 circumstances:
283 (a) the unborn child is not viable; or
284 (b) the unborn child is viable, if:
285 (i) the abortion is necessary to avert:
286 (A) the death of the woman on whom the abortion is performed; or
287 (B) a serious risk of substantial and irreversible impairment of a major bodily function
288 of the woman on whom the abortion is performed;
289 (ii) two physicians who practice maternal fetal medicine concur, in writing, in the
290 patient's medical record that the fetus has a defect that is uniformly diagnosable and uniformly
291 lethal; or
292 (iii) (A) the woman is pregnant as a result of:
293 (I) rape, as described in Section 76-5-402 ;
294 (II) rape of a child, as described in Section 76-5-402.1 ; or
295 (III) incest, as described in Subsection 76-5-406 (10) or Section 76-7-102 ; and
296 (B) before the abortion is performed, the physician who performs the abortion:
297 (I) verifies that the incident described in Subsection (3)(b)(iii)(A) has been reported to
298 law enforcement; and
299 (II) complies with the requirements of Section 62A-4a-403 .
300 [(4) Notwithstanding any other provision of this section, a woman who seeks to have,
301 or obtains, an abortion for herself is not criminally liable.]
302 Section 6. Section 76-7-314 is amended to read:
303 76-7-314. Violations of abortion laws -- Classifications.
304 [(1) Notwithstanding any other provision of law, a woman who seeks to have or
305 obtains an abortion for herself is not criminally liable.]
306 [(2) A woman upon whom a partial birth abortion is performed may not be prosecuted
307 under Section 76-7-326 or 76-7-329 for a conspiracy to violate Section 76-7-326 or 76-7-329 .]
308 [(3)] (1) A willful violation of Section 76-7-307 , 76-7-308 , 76-7-310 , 76-7-310.5 ,
309 76-7-311 , or 76-7-312 is a felony of the third degree.

310 [(4)] (2) A violation of Section 76-7-326 [or 76-7-329 ] is a felony of the third degree.
311 [(5)] (3) A violation of Section 76-7-314.5 is a felony of the second degree.
312 [(6)] (4) A violation of any other provision of this part is a class A misdemeanor.
313 Section 7. Section 76-7-314.5 is amended to read:
314 76-7-314.5. Killing an unborn child.
315 (1) A person is guilty of killing an unborn child if the person causes the death of an
316 unborn child by performing an abortion of the unborn child in violation of the provisions of
317 Subsection 76-7-302 (3).
318 [(2) Notwithstanding any other provision of this section, a woman who seeks to have,
319 or obtains, an abortion for herself is not criminally liable.]
320 (2) A woman is not criminally liable for:
321 (a) seeking to obtain, or obtaining, an abortion that is permitted by this part; or
322 (b) a physician's failure to comply with Subsection 76-7-302 (3)(b)(ii) or Section
323 76-7-305 .
324 Section 8. Section 76-7-327 is amended to read:
325 76-7-327. Remedies for father or maternal grandparents.
326 (1) The father, if married to the mother at the time she receives a partial birth abortion,
327 and if the mother has not attained the age of 18 years at the time of the abortion, the maternal
328 grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy
329 resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion.
330 (2) Such relief shall include:
331 (a) money damages for all injuries, psychological and physical, occasioned by the
332 violation of Section 76-7-326 [or 76-7-329 ]; and
333 (b) statutory damages equal to three times the cost of the partial birth abortion.
334 Section 9. Repealer.
335 This bill repeals:
336 Section 76-7-329, Person unauthorized to perform abortions -- Penalties.
337 Section 10. Effective date.

338 If approved by two-thirds of all the members elected to each house, this bill takes effect
339 upon approval by the governor, or the day following the constitutional time limit of Utah
340 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
341 the date of veto override.
342 Section 11. Coordinating H.B. 462 with H.B. 12 -- Superceding amendments.
343 If this H.B. 462 and H.B. 12, Criminal Homicide and Abortion Amendments, both
344 pass, it is the intent of the Legislature that H.B. 462 supersedes H.B. 12, and that the Office of
345 Legislative Research and General Counsel prepare the Utah Code database for publication to
346 reflect that H.B. 462 supersedes H.B. 12.