H.B. 92

1

CHILD ABUSE PROTECTIONS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Gary F. Cox
5 AN ACT RELATING TO THE CRIMINAL CODE; DEFINING THE CRIME OF CHILD
6 ABUSE; MAKING IT A CRIMINAL OFFENSE TO COMMIT A CRIME OF DOMESTIC
7 VIOLENCE IN THE PRESENCE OF A CHILD; h LIMITING THE DEFINITION OF COHABITANT; h
7a AND MAKING CONFORMING
8 AMENDMENTS.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
10a h 30-6-1, as last amended by Chapter 244, Laws of Utah 1996 h
11 76-5-109, as last amended by Chapter 192, Laws of Utah 1992
12 76-5-110, as last amended by Chapter 77, Laws of Utah 1995
13 76-5-208, as enacted by Chapter 65, Laws of Utah 1994
14 ENACTS:
15 76-5-109.1, Utah Code Annotated 1953
16 Be it enacted by the Legislature of the state of Utah:
16a h Section 1. Section 30-6-1 is amended to read:
16b 30-6-1. Definitions.
16c As used in this chapter:
16d (1) "Abuse" means attempting to cause, or intentionally or knowingly causing to an adult or
16e minor physical harm or intentionally placing another in fear of imminent physical harm.
16f (2) "Cohabitant" means an emancipated person pursuant to Section 15-2-1 or a person who is 16
16g years of age or older who:
16h (a) is or was a spouse of the other party;
16i (b) is or was living as if a spouse of the other party;
16j (c) is related by blood or marriage to the other party; h

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16k h (d) has one or more children in common with the other party; or
16l (e) resides or has resided in the same residence as the other party.
16m (3) Notwithstanding Subsection (2), "cohabitant" does not include:
16n (a) the relationship of natural parent, adoptive parent, or step-parent to a minor; OR
16o (b) THE RELATIONSHIP BETWEEN NATURAL, ADOPTIVE, STEP, OR FOSTER SIBLINGS WHO
16p ARE UNDER 18 YEARS OF AGE.
16q (4) "Court clerk" means a district court clerk or juvenile court clerk.
16r (5) "Department" means the Department of Human Services.
16s (6) "Domestic violence" means the same as that term is defined in Section 77-36-1.
16t (7) "Ex parte protective order" means an order issued without notice to the defendant in
16u accordance with this chapter.
16v (8) "Foreign protective order" means a protective order issued by another state, territory, or
16w possession of the United States, tribal lands of the United States, the Commonwealth of Puerto Rico, or
16x the District of Columbia shall be given full faith and credit in Utah, if the protective order is similar to a
16y protective order issued in compliance with Title 30, Chapter 6, Cohabitant Abuse Act, or Title 77, Chapter
16z 36, Cohabitant Abuse Procedures Act, and includes the following requirements:
16aa (a) the requirements of due process were met by the issuing court, including subject matter and
16bb personal jurisdiction;
16cc (b) the respondent received reasonable notice; and
16dd (c) the respondent had an opportunity for a hearing regarding the protective order.
16ee (9) "Law enforcement unit" or "law enforcement agency" means any public agency having
16ff general police power and charged with making arrests in connection with enforcement of the criminal
16gg statutes and ordinances of this state or any political subdivision.
16hh (10) "Peace officer" means those persons specified in Section 77-1a-1.
16ii (11) "Protective order" means a restraining order issued pursuant to this chapter subsequent to
16jj a hearing on the petition, of which the petitioner has given notice in accordance with this chapter. h
17 Section h [1 ] 2 h . Section 76-5-109 is amended to read:
18 76-5-109. Child abuse.
19 (1) As used in this section:
20 (a) "Child" means a human being who is 17 years of age or less.
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21 (b) "Child abuse" means any offense described in Subsection (2) or (3).
22 [(b)] (c) "Physical injury" means an injury to or condition of a child which impairs the
23 physical condition of the child, including:
24 (i) a bruise or other contusion of the skin;
25 (ii) a minor laceration or abrasion;
26 (iii) failure to thrive or malnutrition; or
27 (iv) any other condition which imperils the child's health or welfare and which is not a




















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1 serious physical injury as defined in [this section] Subsection (d).
2 [(c)] (d) "Serious physical injury" means any physical injury or set of injuries which
3 seriously impairs the child's health, or which involves physical torture or causes serious emotional
4 harm to the child, or which involves a substantial risk of death to the child, including:
5 (i) fracture of any bone or bones;
6 (ii) intracranial bleeding, swelling or contusion of the brain, whether caused by blows,
7 shaking, or causing the child's head to impact with an object or surface;
8 (iii) any burn, including burns inflicted by hot water, or those caused by placing a hot
9 object upon the skin or body of the child;
10 (iv) any injury caused by use of a deadly or dangerous weapon;
11 (v) any combination of two or more physical injuries inflicted by the same person, either
12 at the same time or on different occasions;
13 (vi) any damage to internal organs of the body;
14 (vii) any conduct toward a child which results in severe emotional harm, severe
15 developmental delay or retardation, or severe impairment of the child's ability to function;
16 (viii) any injury which creates a permanent disfigurement or protracted loss or impairment
17 of the function of a bodily member, limb, or organ;
18 (ix) any conduct which causes a child to cease breathing, even if resuscitation is successful
19 following the conduct; or
20 (x) any conduct which results in starvation or failure to thrive or malnutrition that
21 jeopardizes the child's life.
22 (2) Any person who inflicts upon a child serious physical injury or, having the care or
23 custody of such child, causes or permits another to inflict serious physical injury upon a child is
24 guilty of an offense as follows:
25 (a) if done intentionally or knowingly, the offense is a felony of the second degree;
26 (b) if done recklessly, the offense is a felony of the third degree;
27 (c) if done with criminal negligence, the offense is a class A misdemeanor.
28 (3) Any person who inflicts upon a child physical injury or, having the care or custody of
29 such child, causes or permits another to inflict physical injury upon a child is guilty of an offense
30 as follows:
31 (a) if done intentionally or knowingly, the offense is a class A misdemeanor;

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1 (b) if done recklessly, the offense is a class B misdemeanor; or
2 (c) if done with criminal negligence, the offense is a class C misdemeanor.
3 (4) Criminal actions under this section may be prosecuted in the county or district where
4 the offense is alleged to have been committed, where the existence of the offense is discovered,
5 where the victim resides, or where the defendant resides.
5a h (5) A PARENT OR LEGAL GUARDIAN WHO PROVIDES A CHILD WITH TREATMENT BY
5b SPIRITUAL MEANS ALONE THROUGH PRAYER, IN LIEU OF MEDICAL TREATMENT, IN ACCORDANCE
5c WITH THE TENETS AND PRACTICES OF AN ESTABLISHED CHURCH OR RELIGIOUS DENOMINATION
5d OF WHICH THE PARENT OR LEGAL GUARDIAN IS A MEMBER OR ADHERENT SHALL NOT FOR THAT
5e REASON ALONE BE DEEMED TO HAVE COMMITTED AN OFFENSE UNDER THIS SECTION. h
6 Section h [ 2 ] 3 h . Section 76-5-109.1 is enacted to read:
7 76-5-109.1. Commission of domestic violence in the presence of a child.
8 (1) As used in this section:
9 (a) "Domestic violence" means the same as that term is defined in Section 77-36-1.
10 (b) "In the presence of a child" means:
11 (i) in the physical presence of a child; or
12 (ii) having knowledge that a child is present and may see or hear an act of domestic
13 violence.
14 (2) (a) A person is guilty of a third degree felony if he:
15 h [(i) commits an act of domestic violence in the presence of a child on two or more
16 occasions; or
17 (ii) commits an act of domestic violence in the presence of a child and the physical safety
18 of the child is threatened.
19 (b) Except as provided in Subsection (2)(a), a person is guilty of a class A misdemeanor
20 if he commits an act of domestic violence in the presence of a child. ]
20a h (i) COMMITS AN ACT OF DOMESTIC VIOLENCE IN THE PRESENCE OF A CHILD THAT RESULTS
20b IN OR CONTRIBUTES TO SEVERE EMOTIONAL HARM, SEVERE DEVELOPMENTAL DELAY, OR SEVERE
20c IMPAIRMENT OF THE CHILD'S ABILITY TO FUNCTION; h
20d h [(ii) ] ( i) h COMMITS CRIMINAL HOMICIDE, AS DEFINED IN SECTION 76-5-201, AGAINST A
20e COHABITANT IN THE PRESENCE OF A CHILD; OR h
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20f h [(iii) ] (ii) h INTENTIONALLY CAUSES SERIOUS BODILY INJURY TO A COHABITANT OR USES A
20g DANGEROUS WEAPON, AS DEFINED IN SECTION 76-1-601, OR OTHER MEANS OR FORCE LIKELY TO
20h PRODUCE SERIOUS BODILY INJURY AGAINST A COHABITANT, IN THE PRESENCE OF A CHILD.
20i (b) A PERSON IS GUILTY OF A CLASS A MISDEMEANOR IF HE COMMITS AN ACT OF
20j DOMESTIC VIOLENCE IN THE PRESENCE OF A CHILD NOT AMOUNTING TO A VIOLATION OF
20k SUBSECTION (a), ON TWO OR MORE OCCASIONS. h
21 Section h [ 3 ] 4 h . Section 76-5-110 is amended to read:
22 76-5-110. Abuse or neglect of disabled child.
23 (1) As used in this section:
24 (a) "Abuse" means:
25 (i) inflicting physical injury, as that term is defined in [Subsection] Section
26 76-5-109[(1)(b), or];
27 (ii) having the care or custody of a disabled child, causing or permitting another to inflict
28 physical injury, as that term is defined in Section 76-5-109; or
29 (iii) unreasonable confinement.
30 (b) "Caretaker" means:
31 (i) any parent, legal guardian, or other person having under his care and custody a disabled










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1 child; or
2 (ii) any person, corporation, or public institution that has assumed by contract or court
3 order the responsibility to provide food, shelter, clothing, medical, and other necessities to a
4 disabled child.
5 (c) "Disabled child" means any person under 18 years of age who is impaired because of
6 mental illness, mental deficiency, physical illness or disability, or other cause, to the extent that
7 he is unable to care for his own personal safety or to provide necessities such as food, shelter,
8 clothing, and medical care.
9 (d) "Neglect" means failure by a caretaker to provide care, nutrition, clothing, shelter,
10 supervision, or medical care.
11 (2) Any caretaker who abuses or neglects a disabled child is guilty of a third degree felony.
12 (3) (a) A parent or legal guardian who provides a child with treatment by spiritual means
13 alone through prayer, in lieu of medical treatment, in accordance with the tenets and practices of
14 an established church or religious denomination of which the parent or legal guardian is a member
15 or adherent shall not for that reason alone be considered to be in violation under this section.
16 (b) The exception under Subsection (3)(a) shall not preclude a court from ordering medical
17 services from a physician licensed to engage in the practice of medicine to be provided to the child
18 where there is substantial risk of harm to the child's health or welfare.
19 Section 4. Section 76-5-208 is amended to read:
20 76-5-208. Child abuse homicide.
21 (1) Criminal homicide constitutes child abuse homicide if the actor causes the death of a
22 person under 17 years of age and the death results from child abuse, as defined in Subsection
23 76-5-109(1):
24 (a) if done recklessly as provided in Subsection 76-5-109(2)(b);
25 (b) if done with criminal negligence as provided in Subsection 76-5-109(2)(c); or
26 (c) if done with the mental culpability as provided in Subsection 76-5-109(3)(a), (b), or
27 (c).
28 (2) Child abuse homicide as [defined] described in Subsection (1)(a) is a second degree
29 felony.
30 (3) Child abuse homicide as [defined] described in Subsections (1)(b) and (c) is a third
31 degree felony.

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Legislative Review Note
as of 1-23-97 10:29 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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