H.B. 213 Enrolled

1

CRIMINAL PENALTIES FOR SEXUAL CONTACT WITH A
2 STUDENT
3 2014 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: LaVar Christensen
6 Senate Sponsor: Howard A. Stephenson
7
8 LONG TITLE
9 General Description:
10 This bill modifies the Criminal Code regarding the concept of a position of special
11 trust regarding persons working at schools.
12 Highlighted Provisions:
13 This bill:
14 . modifies the offense of aggravated sexual abuse of a child by providing a definition
15 of the term "position of special trust" and clarifying that the definition of a teacher
16 includes adult employees and volunteers at public and private schools;
17 . provides that specified sexual conduct against victims between 14 and 18 years of
18 age are third degree felonies if committed by a school employee or volunteer; and
19 . states in the Criminal Code that a sexual offense against a minor is a ground for the
20 revocation of a teacher's license.
21 Money Appropriated in this Bill:
22 None
23 Other Special Clauses:
24 None
25 Utah Code Sections Affected:
26 AMENDS:
27 76-5-309 , as last amended by Laws of Utah 2013, Chapter 196
28 76-5-401.1 , as enacted by Laws of Utah 1998, Chapter 82
29 76-5-401.2 , as last amended by Laws of Utah 2013, Chapter 34

30 76-5-404.1 , as last amended by Laws of Utah 2013, Chapters 81 and 196
31 76-5-406 , as last amended by Laws of Utah 2013, Chapter 196
32 ENACTS:
33 76-5-415 , Utah Code Annotated 1953
34
35 Be it enacted by the Legislature of the state of Utah:
36 Section 1. Section 76-5-309 is amended to read:
37 76-5-309. Human trafficking and human smuggling -- Penalties.
38 (1) Human trafficking for forced labor and human trafficking for forced sexual
39 exploitation are each a second degree felony, except under Section 76-5-310 .
40 (2) Human smuggling, under Section 76-5-308 of one or more persons is a third degree
41 felony, except under Section 76-5-310 .
42 (3) Human trafficking for forced labor or for forced sexual exploitation and human
43 smuggling are each a separate offense from any other crime committed in relationship to the
44 commission of either of these offenses.
45 (4) Under circumstances not amounting to aggravated sexual abuse of a child, a
46 violation of Subsection 76-5-404.1 (4)(h)[(i)], a person who benefits, receives, or exchanges
47 anything of value from knowing participation in:
48 (a) human trafficking for forced labor or for forced sexual exploitation in violation of
49 Section 76-5-308 is guilty of a second degree felony; and
50 (b) human smuggling is guilty of a third degree felony.
51 (5) A person commits a separate offense of human trafficking or human smuggling for
52 each person who is smuggled or trafficked under Section 76-5-308 or 76-5-310 .
53 Section 2. Section 76-5-401.1 is amended to read:
54 76-5-401.1. Sexual abuse of a minor.
55 (1) For purposes of this section "minor" is a person who is 14 years of age or older, but
56 younger than 16 years of age, at the time the sexual activity described in this section occurred.
57 (2) A person commits sexual abuse of a minor if the person is seven years or more

58 older than the minor or holds a relationship of special trust as an adult teacher, employee, or
59 volunteer, as described in Subsection 76-5-404.1 (1)(c)(xix) and, under circumstances not
60 amounting to rape, in violation of Section 76-5-402 , object rape, in violation of Section
61 76-5-402.2 , forcible sodomy, in violation of Section 76-5-403 , aggravated sexual assault, in
62 violation of Section 76-5-405 , unlawful sexual activity with a minor, in violation of Section
63 76-5-401 , or an attempt to commit any of those offenses, the person touches the anus, buttocks,
64 or any part of the genitals of the minor, or touches the breast of a female minor, or otherwise
65 takes indecent liberties with the minor, or causes a minor to take indecent liberties with the
66 actor or another person, with the intent to cause substantial emotional or bodily pain to any
67 person or with the intent to arouse or gratify the sexual desire of any person regardless of the
68 sex of any participant.
69 (3) (a) A violation of this section is a class A misdemeanor[.], except under Subsection
70 (3)(b).
71 (b) A violation of this section is a third degree felony if the actor at the time of the
72 commission of the offense:
73 (i) is 18 years of age or older;
74 (ii) held a position of special trust as a teacher or a volunteer at a school, as that
75 position is defined in Subsection 76-5-404.1 (1)(c)(xix); and
76 (iii) committed the offense against an individual who at the time of the offense was
77 enrolled as a student at the school where the actor was employed or was acting as a volunteer.
78 Section 3. Section 76-5-401.2 is amended to read:
79 76-5-401.2. Unlawful sexual conduct with a 16- or 17-year-old.
80 (1) As used in this section, "minor" means a person who is 16 years of age or older, but
81 younger than 18 years of age, at the time the sexual conduct described in Subsection (2)
82 occurred.
83 (2) (a) A person commits unlawful sexual conduct with a minor if, under
84 circumstances not amounting to an offense listed under Subsection (3), a person who is:
85 (i) seven or more years older but less than 10 years older than the minor at the time of

86 the sexual conduct engages in any conduct listed in Subsection (2)(b), and the person knew or
87 reasonably should have known the age of the minor; [or]
88 (ii) 10 or more years older than the minor at the time of the sexual conduct and engages
89 in any conduct listed in Subsection (2)(b)[.]; or
90 (iii) holds a relationship of special trust as an adult teacher, employee, or volunteer, as
91 described in Subsection 76-5-404.1 (1)(c)(xix).
92 (b) As used in Subsection (2)(a), "sexual conduct" refers to when the person:
93 (i) has sexual intercourse with the minor;
94 (ii) engages in any sexual act with the minor involving the genitals of one person and
95 the mouth or anus of another person, regardless of the sex of either participant;
96 (iii) causes the penetration, however slight, of the genital or anal opening of the minor
97 by any foreign object, substance, instrument, or device, including a part of the human body,
98 with the intent to cause substantial emotional or bodily pain to any person or with the intent to
99 arouse or gratify the sexual desire of any person, regardless of the sex of any participant; or
100 (iv) touches the anus, buttocks, or any part of the genitals of the minor, or touches the
101 breast of a female minor, or otherwise takes indecent liberties with the minor, or causes a
102 minor to take indecent liberties with the actor or another person, with the intent to cause
103 substantial emotional or bodily pain to any person or with the intent to arouse or gratify the
104 sexual desire of any person regardless of the sex of any participant.
105 (3) The offenses referred to in Subsection (2) are:
106 (a) (i) rape, in violation of Section 76-5-402 ;
107 (ii) object rape, in violation of Section 76-5-402.2 ;
108 (iii) forcible sodomy, in violation of Section 76-5-403 ;
109 (iv) forcible sexual abuse, in violation of Section 76-5-404 ; or
110 (v) aggravated sexual assault, in violation of Section 76-5-405 ; or
111 (b) an attempt to commit any offense under Subsection (3)(a).
112 (4) A violation of Subsection (2)(b)(i), (ii), or (iii) is a third degree felony.
113 (5) (a) A violation of Subsection (2)(b)(iv) is a class A misdemeanor[.], except under

114 Subsection (5)(b).
115 (b) A violation of Subsection (2)(b)(iv) is a third degree felony if the actor at the time
116 of the commission of the offense:
117 (i) is 18 years of age or older;
118 (ii) held a position of special trust as a teacher or a volunteer at a school, as that
119 position is defined in Subsection 76-5-404.1 (1)(c)(xix); and
120 (iii) committed the offense against an individual who at the time of the offense was
121 enrolled as a student at the school where the actor was employed or was acting as a volunteer.
122 Section 4. Section 76-5-404.1 is amended to read:
123 76-5-404.1. Sexual abuse of a child -- Aggravated sexual abuse of a child.
124 (1) As used in this section[, "child" means a person under the age of 14.]:
125 (a) "Adult" means an individual 18 years of age or older.
126 (b) "Child" means an individual under the age of 14.
127 (c) "Position of special trust" means:
128 (i) an adoptive parent;
129 (ii) an athletic manager who is an adult;
130 (iii) an aunt;
131 (iv) a babysitter;
132 (v) a coach;
133 (vi) a cohabitant of a parent if the cohabitant is an adult;
134 (vii) a counselor;
135 (viii) a doctor or physician;
136 (ix) an employer;
137 (x) a foster parent;
138 (xi) a grandparent;
139 (xii) a legal guardian;
140 (xiii) a natural parent;
141 (xiv) a recreational leader who is an adult;

142 (xv) a religious leader;
143 (xvi) a sibling or a stepsibling who is an adult;
144 (xvii) a scout leader who is an adult;
145 (xviii) a stepparent;
146 (xix) a teacher or any other person employed by or volunteering at a public or private
147 elementary school or secondary school, and who is 18 years of age or older;
148 (xx) an uncle;
149 (xxi) a youth leader who is an adult; or
150 (xxii) any person in a position of authority, other than those persons listed in
151 Subsections (1)(c)(i) through (xxi), which enables the person to exercise undue influence over
152 the child.
153 (2) A person commits sexual abuse of a child if, under circumstances not amounting to
154 rape of a child, object rape of a child, sodomy on a child, or an attempt to commit any of these
155 offenses, the actor touches the anus, buttocks, or genitalia of any child, the breast of a female
156 child, or otherwise takes indecent liberties with a child, or causes a child to take indecent
157 liberties with the actor or another with intent to cause substantial emotional or bodily pain to
158 any person or with the intent to arouse or gratify the sexual desire of any person regardless of
159 the sex of any participant.
160 (3) Sexual abuse of a child is [punishable as] a second degree felony.
161 (4) A person commits aggravated sexual abuse of a child when in conjunction with the
162 offense described in Subsection (2) any of the following circumstances have been charged and
163 admitted or found true in the action for the offense:
164 (a) the offense was committed by the use of a dangerous weapon as defined in Section
165 76-1-601 , or by force, duress, violence, intimidation, coercion, menace, or threat of harm, or
166 was committed during the course of a kidnapping;
167 (b) the accused caused bodily injury or severe psychological injury to the victim during
168 or as a result of the offense;
169 (c) the accused was a stranger to the victim or made friends with the victim for the

170 purpose of committing the offense;
171 (d) the accused used, showed, or displayed pornography or caused the victim to be
172 photographed in a lewd condition during the course of the offense;
173 (e) the accused, prior to sentencing for this offense, was previously convicted of any
174 felony, or of a misdemeanor involving a sexual offense;
175 (f) the accused committed the same or similar sexual act upon two or more victims at
176 the same time or during the same course of conduct;
177 (g) the accused committed, in Utah or elsewhere, more than five separate acts, which if
178 committed in Utah would constitute an offense described in this chapter, and were committed
179 at the same time, or during the same course of conduct, or before or after the instant offense;
180 (h) the offense was committed by a person who occupied a position of special trust in
181 relation to the victim; ["position of special trust" means that position occupied by a person in a
182 position of authority, who, by reason of that position is able to exercise undue influence over
183 the victim, and includes, but is not limited to, a youth leader or recreational leader who is an
184 adult, adult athletic manager, adult coach, teacher, counselor, religious leader, doctor,
185 employer, foster parent, babysitter, adult scout leader, natural parent, stepparent, adoptive
186 parent, legal guardian, grandparent, aunt, uncle, or adult cohabitant of a parent;]
187 (i) the accused encouraged, aided, allowed, or benefitted from acts of prostitution or
188 sexual acts by the victim with any other person, or sexual performance by the victim before any
189 other person, human trafficking, or human smuggling; or
190 (j) the accused caused the penetration, however slight, of the genital or anal opening of
191 the child by any part or parts of the human body other than the genitals or mouth.
192 (5) Aggravated sexual abuse of a child is a first degree felony punishable by a term of
193 imprisonment of:
194 (a) except as provided in Subsection (5)(b), (5)(c), or (6), not less than 15 years and
195 which may be for life;
196 (b) except as provided in Subsection (5)(c) or (6), life without parole, if the trier of fact
197 finds that during the course of the commission of the aggravated sexual abuse of a child the

198 defendant caused serious bodily injury to another; or
199 (c) life without parole, if the trier of fact finds that at the time of the commission of the
200 aggravated sexual abuse of a child, the defendant was previously convicted of a grievous
201 sexual offense.
202 (6) If, when imposing a sentence under Subsection (5)(a) or (b), a court finds that a
203 lesser term than the term described in Subsection (5)(a) or (b) is in the interests of justice and
204 states the reasons for this finding on the record, the court may impose a term of imprisonment
205 of not less than:
206 (a) for purposes of Subsection (5)(b), 15 years and which may be for life; or
207 (b) for purposes of Subsection (5)(a) or (b):
208 (i) 10 years and which may be for life; or
209 (ii) six years and which may be for life.
210 (7) The provisions of Subsection (6) do not apply when a person is sentenced under
211 Subsection (5)(c).
212 (8) Subsections (5)(b) and (5)(c) do not apply if the defendant was younger than 18
213 years of age at the time of the offense.
214 (9) Imprisonment under this section is mandatory in accordance with Section 76-3-406 .
215 Section 5. Section 76-5-406 is amended to read:
216 76-5-406. Sexual offenses against the victim without consent of victim --
217 Circumstances.
218 An act of sexual intercourse, rape, attempted rape, rape of a child, attempted rape of a
219 child, object rape, attempted object rape, object rape of a child, attempted object rape of a
220 child, sodomy, attempted sodomy, forcible sodomy, attempted forcible sodomy, sodomy on a
221 child, attempted sodomy on a child, forcible sexual abuse, attempted forcible sexual abuse,
222 sexual abuse of a child, attempted sexual abuse of a child, aggravated sexual abuse of a child,
223 attempted aggravated sexual abuse of a child, or simple sexual abuse is without consent of the
224 victim under any of the following circumstances:
225 (1) the victim expresses lack of consent through words or conduct;

226 (2) the actor overcomes the victim through the actual application of physical force or
227 violence;
228 (3) the actor is able to overcome the victim through concealment or by the element of
229 surprise;
230 (4) (a) (i) the actor coerces the victim to submit by threatening to retaliate in the
231 immediate future against the victim or any other person, and the victim perceives at the time
232 that the actor has the ability to execute this threat; or
233 (ii) the actor coerces the victim to submit by threatening to retaliate in the future
234 against the victim or any other person, and the victim believes at the time that the actor has the
235 ability to execute this threat;
236 (b) as used in this Subsection (4), "to retaliate" includes threats of physical force,
237 kidnapping, or extortion;
238 (5) the victim has not consented and the actor knows the victim is unconscious,
239 unaware that the act is occurring, or physically unable to resist;
240 (6) the actor knows that as a result of mental disease or defect, the victim is at the time
241 of the act incapable either of appraising the nature of the act or of resisting it;
242 (7) the actor knows that the victim submits or participates because the victim
243 erroneously believes that the actor is the victim's spouse;
244 (8) the actor intentionally impaired the power of the victim to appraise or control his or
245 her conduct by administering any substance without the victim's knowledge;
246 (9) the victim is younger than 14 years of age;
247 (10) the victim is younger than 18 years of age and at the time of the offense the actor
248 was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of
249 special trust in relation to the victim as defined in [Subsection] Section 76-5-404.1 [(4)(h)];
250 (11) the victim is 14 years of age or older, but younger than 18 years of age, and the
251 actor is more than three years older than the victim and entices or coerces the victim to submit
252 or participate, under circumstances not amounting to the force or threat required under
253 Subsection (2) or (4); or

254 (12) the actor is a health professional or religious counselor, as those terms are defined
255 in this Subsection (12), the act is committed under the guise of providing professional
256 diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed
257 that the act was for medically or professionally appropriate diagnosis, counseling, or treatment
258 to the extent that resistance by the victim could not reasonably be expected to have been
259 manifested; for purposes of this Subsection (12):
260 (a) "health professional" means an individual who is licensed or who holds himself or
261 herself out to be licensed, or who otherwise provides professional physical or mental health
262 services, diagnosis, treatment, or counseling including, but not limited to, a physician,
263 osteopathic physician, nurse, dentist, physical therapist, chiropractor, mental health therapist,
264 social service worker, clinical social worker, certified social worker, marriage and family
265 therapist, professional counselor, psychiatrist, psychologist, psychiatric mental health nurse
266 specialist, or substance abuse counselor; and
267 (b) "religious counselor" means a minister, priest, rabbi, bishop, or other recognized
268 member of the clergy.
269 Section 6. Section 76-5-415 is enacted to read:
270 76-5-415. Educator's license subject to action for violation of this part.
271 Commission of any offense under this Title 76, Chapter 5, Part 4, Sexual Offenses, by
272 an educator as defined in Section 53A-6-103 , is grounds under Section 53A-6-501 for
273 disciplinary action against the educator, including revocation of the educator's license.