H.B. 249

1

CLARIFICATION ON PROBATION
2 LIMITATIONS
3 1998 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Greg J. Curtis
6 AN ACT RELATING TO THE CRIMINAL CODE; LIMITING CIRCUMSTANCES WHERE
7 PROBATION MAY BE GRANTED TO OFFENDERS CONVICTED OF CERTAIN
8 SEXUAL OFFENSES AGAINST A CHILD.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 76-5-406.5, as last amended by Chapter 40, Laws of Utah 1996
12 Be it enacted by the Legislature of the state of Utah:
13 Section 1. Section 76-5-406.5 is amended to read:
14 76-5-406.5. Circumstances required for probation or suspension of sentence for
15 certain sex offenses against a child.
16 (1) In a case involving conviction, for Section 76-5-402.1, rape of a child; Section
17 76-5-402.3, object rape of a child; Section 76-5-403.1, sodomy on a child; [and] or any attempt
18 to commit a felony under those sections or a conviction for Subsections 76-5-404.1(3) and (4),
19 aggravated sexual abuse of a child, the court may suspend execution of sentence and consider
20 probation[. Only] to a residential sexual abuse treatment center only if all of the following
21 circumstances are found by the court to be present and the court in its discretion, considering the
22 circumstances of the offense, including the nature, frequency, and duration of the conduct, and
23 considering the best interests of the public and the child victim, [may the court find] finds
24 probation to a residential sexual abuse treatment center to be proper:
25 (a) the defendant did not use a weapon, force, violence, substantial duress or menace, or
26 threat of harm, in committing the offense or before or after committing the offense, in an attempt
27 to frighten the child victim or keep the child victim from reporting the offense;

1 (b) the defendant did not cause bodily injury to the child victim during or as a result of the
2 offense and did not cause the child victim severe psychological harm;
3 (c) the defendant, prior to the offense, had not been convicted of any public offense in
4 Utah or elsewhere involving sexual misconduct in the commission of the offense;
5 (d) the defendant did not commit an offense described in Part 4 of this chapter against
6 more than one child victim or victim, at the same time, or during the same course of conduct, or
7 previous to or subsequent to the instant offense;
8 (e) the defendant did not use, show, or display pornography or create sexually-related
9 photographs or tape recordings in the course of the offense;
10 (f) the defendant did not act in concert with another offender during the offense or
11 knowingly commit the offense in the presence of a person other than the victim or with lewd intent
12 to reveal the offense to another;
13 (g) the defendant did not encourage, aid, allow, or benefit from any act of prostitution or
14 sexual act by the child victim with any other person or sexual performance by the child victim
15 before any other person;
16 (h) the defendant admits the offense of which he has been convicted and has been accepted
17 for mental health treatment in a residential sexual abuse treatment center that has been approved
18 by the Department of Corrections under Subsection (3);
19 (i) rehabilitation of the defendant through treatment is probable, based upon evidence
20 provided by a treatment professional who has been approved by the Department of Corrections and
21 the Department of Human Services under Subsection (3) and who has accepted the defendant for
22 treatment;
23 (j) the defendant has undergone a complete psychological evaluation conducted by a
24 professional approved by the Department of Corrections and the Department of Human Services
25 and:
26 (i) the professional's opinion is that the defendant is not an exclusive pedophile and does
27 not present an immediate and present danger to the community if released on probation and placed
28 in a residential sexual abuse treatment center; and
29 (ii) the court accepts the opinion of the professional;
30 (k) if the offense is committed by a parent, stepparent, adoptive parent, or legal guardian
31 of the child victim, the defendant shall, in addition to establishing all other conditions of this

- 2 -

1 section, establish it is in the child victim's best interest that the defendant not be imprisoned by
2 presenting evidence provided by a treatment professional who:
3 (i) is treating the child victim and understands he will be treating the family as a whole;
4 or
5 (ii) has assessed the child victim for purposes of treatment as ordered by the court based
6 on a showing of good cause; and
7 (l) if probation is imposed, the defendant, as a condition of probation, may not reside in
8 a home where children younger than 18 years of age reside for at least one year beginning with the
9 commencement of treatment, and may not again take up residency in a home where children
10 younger than 18 years of age reside during the period of probation until allowed to do so by order
11 of the court[;].
12 (2) A term of incarceration of at least 90 days is to be served prior to treatment and
13 continue until such time as bed space is available at a residential sexual abuse treatment center as
14 provided under Subsection (3) and probation is to be imposed for up to a maximum of ten years.
15 (3) (a) The Department of Corrections shall develop qualification criteria for the approval
16 of the sexual abuse treatment programs and professionals under this section. The criteria shall
17 include the screening criteria employed by the department for sexual offenders.
18 (b) The sexual abuse treatment program shall be at least one year in duration, shall be
19 residential, and shall specifically address the sexual conduct for which the defendant was
20 convicted.
21 (4) Establishment by the defendant of all the criteria of this section does not mandate the
22 granting under this section of probation or modification of the sentence that would otherwise be
23 imposed by Section 76-3-406 regarding sexual offenses against children. The court has discretion
24 to deny the request based upon its consideration of the circumstances of the offense, including:
25 (a) the nature, frequency, and duration of the conduct;
26 (b) the effects of the conduct on any child victim involved;
27 (c) the best interest of the public and any child victim; and
28 (d) the characteristics of the defendant, including any risk the defendant presents to the
29 public and specifically to children.
30 (5) The defendant has the burden to establish by a preponderance of evidence eligibility
31 under all of the criteria of this section.

- 3 -

1 (6) If the court finds a defendant granted probation under this section fails to cooperate or
2 succeed in treatment or violates probation to any substantial degree, the sentence previously
3 imposed for the offense shall be immediately executed.
4 (7) The court shall enter written findings of fact regarding the conditions established by
5 the defendant that justify the granting of probation under this section.
6 (8) In cases involving conviction of any sexual offense against a child other than those
7 offenses provided in Subsection (1), the court shall consider the circumstances described in
8 Subsection (1) as advisory in determining whether or not execution of sentence should be
9 suspended and probation granted. The defendant is not required to satisfy all of those
10 circumstances for eligibility pursuant to this subsection.




Legislative Review Note
as of 12-15-97 7:04 AM

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

Office of Legislative Research and General Counsel

- 4 -