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H.B. 56 Enrolled
AN ACT RELATING TO CRIMINAL LAW; AMENDING PROVISIONS REGARDING THE
VICTIM'S AGE IN MURDER OFFENSES INVOLVING CHILD ABUSE.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
76-5-109, as last amended by Chapter 67, Laws of Utah 1999
76-5-202, as last amended by Chapter 90, Laws of Utah 1999
76-5-203, as last amended by Chapters 2 and 90, Laws of Utah 1999
76-5-208, as last amended by Chapter 303, Laws of Utah 1997
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 76-5-109 is amended to read:
76-5-109. Child abuse.
(1) As used in this section:
(a) "Child" means a human being who is [
(b) "Child abuse" means any offense described in Subsection (2) or (3), or in Section
76-5-109.1 .
(c) "Physical injury" means an injury to or condition of a child which impairs the physical
condition of the child, including:
(i) a bruise or other contusion of the skin;
(ii) a minor laceration or abrasion;
(iii) failure to thrive or malnutrition; or
(iv) any other condition which imperils the child's health or welfare and which is not a
serious physical injury as defined in Subsection (1)(d).
(d) "Serious physical injury" means any physical injury or set of injuries which seriously
impairs the child's health, or which involves physical torture or causes serious emotional harm to
the child, or which involves a substantial risk of death to the child, including:
(i) fracture of any bone or bones;
(ii) intracranial bleeding, swelling or contusion of the brain, whether caused by blows,
shaking, or causing the child's head to impact with an object or surface;
(iii) any burn, including burns inflicted by hot water, or those caused by placing a hot object
upon the skin or body of the child;
(iv) any injury caused by use of a dangerous weapon as defined in Section 76-1-601 ;
(v) any combination of two or more physical injuries inflicted by the same person, either at
the same time or on different occasions;
(vi) any damage to internal organs of the body;
(vii) any conduct toward a child which results in severe emotional harm, severe
developmental delay or retardation, or severe impairment of the child's ability to function;
(viii) any injury which creates a permanent disfigurement or protracted loss or impairment
of the function of a bodily member, limb, or organ;
(ix) any conduct which causes a child to cease breathing, even if resuscitation is successful
following the conduct; or
(x) any conduct which results in starvation or failure to thrive or malnutrition that jeopardizes
the child's life.
(2) Any person who inflicts upon a child serious physical injury or, having the care or custody
of such child, causes or permits another to inflict serious physical injury upon a child is guilty of an
offense as follows:
(a) if done intentionally or knowingly, the offense is a felony of the second degree;
(b) if done recklessly, the offense is a felony of the third degree; or
(c) if done with criminal negligence, the offense is a class A misdemeanor.
(3) Any person who inflicts upon a child physical injury or, having the care or custody of such
child, causes or permits another to inflict physical injury upon a child is guilty of an offense as
follows:
(a) if done intentionally or knowingly, the offense is a class A misdemeanor;
(b) if done recklessly, the offense is a class B misdemeanor; or
(c) if done with criminal negligence, the offense is a class C misdemeanor.
(4) A parent or legal guardian who provides a child with treatment by spiritual means alone
through prayer, in lieu of medical treatment, in accordance with the tenets and practices of an
established church or religious denomination of which the parent or legal guardian is a member or
adherent shall not, for that reason alone, be deemed to have committed an offense under this section.
Section 2. Section 76-5-202 is amended to read:
76-5-202. Aggravated murder.
(1) Criminal homicide constitutes aggravated murder if the actor intentionally or knowingly
causes the death of another under any of the following circumstances:
(a) the homicide was committed by a person who is confined in a jail or other correctional
institution;
(b) the homicide was committed incident to one act, scheme, course of conduct, or criminal
episode during which two or more persons were killed, or during which the actor attempted to kill
one or more persons in addition to the victim who was killed;
(c) the actor knowingly created a great risk of death to a person other than the victim and
the actor;
(d) the homicide was committed while the actor was engaged in the commission of, or an
attempt to commit, or flight after committing or attempting to commit, aggravated robbery, robbery,
rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon a child,
forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child abuse [
sexual assault, aggravated arson, arson, aggravated burglary, burglary, aggravated kidnaping,
kidnaping, or child kidnaping;
(e) the homicide was committed for the purpose of avoiding or preventing an arrest of the
defendant or another by a peace officer acting under color of legal authority or for the purpose of
effecting the defendant's or another's escape from lawful custody;
(f) the homicide was committed for pecuniary or other personal gain;
(g) the defendant committed, or engaged or employed another person to commit the
homicide pursuant to an agreement or contract for remuneration or the promise of remuneration for
commission of the homicide;
(h) the actor was previously convicted of aggravated murder, murder, or of a felony involving
the use or threat of violence to a person. For the purpose of this subsection an offense committed
in another jurisdiction, which if committed in Utah would be punishable as aggravated murder or
murder, is considered aggravated murder or murder;
(i) the homicide was committed for the purpose of:
(i) preventing a witness from testifying;
(ii) preventing a person from providing evidence or participating in any legal proceedings or
official investigation;
(iii) retaliating against a person for testifying, providing evidence, or participating in any legal
proceedings or official investigation; or
(iv) disrupting or hindering any lawful governmental function or enforcement of laws;
(j) the victim is or has been a local, state, or federal public official, or a candidate for public
office, and the homicide is based on, is caused by, or is related to that official position, act, capacity,
or candidacy;
(k) the victim is or has been a peace officer, law enforcement officer, executive officer,
prosecuting officer, jailer, prison official, firefighter, judge or other court official, juror, probation
officer, or parole officer, and the victim is either on duty or the homicide is based on, is caused by,
or is related to that official position, and the actor knew, or reasonably should have known, that the
victim holds or has held that official position;
(l) the homicide was committed by means of a destructive device, bomb, explosive, incendiary
device, or similar device which was planted, hidden, or concealed in any place, area, dwelling,
building, or structure, or was mailed or delivered;
(m) the homicide was committed during the act of unlawfully assuming control of any
aircraft, train, or other public conveyance by use of threats or force with intent to obtain any valuable
consideration for the release of the public conveyance or any passenger, crew member, or any other
person aboard, or to direct the route or movement of the public conveyance or otherwise exert
control over the public conveyance;
(n) the homicide was committed by means of the administration of a poison or of any lethal
substance or of any substance administered in a lethal amount, dosage, or quantity;
(o) the victim was a person held or otherwise detained as a shield, hostage, or for ransom;
(p) the actor was under a sentence of life imprisonment or a sentence of death at the time of
the commission of the homicide; or
(q) the homicide was committed in an especially heinous, atrocious, cruel, or exceptionally
depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or
serious bodily injury of the victim before death.
(2) Aggravated murder is a capital offense.
(3) (a) It is an affirmative defense to a charge of aggravated murder or attempted aggravated
murder that the defendant caused the death of another or attempted to cause the death of another:
(i) under the influence of extreme emotional distress for which there is a reasonable
explanation or excuse; or
(ii) under a reasonable belief that the circumstances provided a legal justification or excuse
for his conduct although the conduct was not legally justifiable or excusable under the existing
circumstances.
(b) Under Subsection (3)(a)(i), emotional distress does not include:
(i) a condition resulting from mental illness as defined in Section 76-2-305 ; or
(ii) distress that is substantially caused by the defendant's own conduct.
(c) The reasonableness of an explanation or excuse under Subsection (3)(a)(i) or the
reasonable belief of the actor under Subsection (3)(a)(ii) shall be determined from the viewpoint of
a reasonable person under the then existing circumstances.
(d) This affirmative defense reduces charges only as follows:
(i) aggravated murder to murder; and
(ii) attempted aggravated murder to attempted murder.
Section 3. Section 76-5-203 is amended to read:
76-5-203. Murder.
(1) Criminal homicide constitutes murder if the actor:
(a) intentionally or knowingly causes the death of another;
(b) intending to cause serious bodily injury to another commits an act clearly dangerous to
human life that causes the death of another;
(c) acting under circumstances evidencing a depraved indifference to human life engages in
conduct which creates a grave risk of death to another and thereby causes the death of another;
(d) while in the commission, attempted commission, or immediate flight from the commission
or attempted commission of aggravated robbery, robbery, rape, object rape, forcible sodomy, or
aggravated sexual assault, aggravated arson, arson, aggravated burglary, burglary, aggravated
kidnapping, kidnapping, child kidnapping, rape of a child, object rape of a child, sodomy upon a child,
forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, or child abuse, as
defined in Subsection 76-5-109 (2)(a), [
death of another person other than a party as defined in Section 76-2-202 ;
(e) recklessly causes the death of a peace officer while in the commission or attempted
commission of:
(i) an assault against a peace officer as defined in Section 76-5-102.4 ; or
(ii) interference with a peace officer while making a lawful arrest as defined in Section
76-8-305 if the actor uses force against a peace officer;
(f) commits a homicide which would be aggravated murder, but the offense is reduced
pursuant to Subsection 76-5-202 (3); or
(g) commits aggravated murder, but special mitigation is established under Section
76-5-205.5 .
(2) Murder is a first degree felony.
(3) (a) It is an affirmative defense to a charge of murder or attempted murder that the
defendant caused the death of another or attempted to cause the death of another:
(i) under the influence of extreme emotional distress for which there is a reasonable
explanation or excuse; or
(ii) under a reasonable belief that the circumstances provided a legal justification or excuse
for his conduct although the conduct was not legally justifiable or excusable under the existing
circumstances.
(b) Under Subsection (3)(a)(i) emotional distress does not include:
(i) a condition resulting from mental illness as defined in Section 76-2-305 ; or
(ii) distress that is substantially caused by the defendant's own conduct.
(c) The reasonableness of an explanation or excuse under Subsection (3)(a)(i) or the
reasonable belief of the actor under Subsection (3)(a)(ii) shall be determined from the viewpoint of
a reasonable person under the then existing circumstances.
(d) This affirmative defense reduces charges only as follows:
(i) murder to manslaughter; and
(ii) attempted murder to attempted manslaughter.
Section 4. Section 76-5-208 is amended to read:
76-5-208. Child abuse homicide.
(1) Criminal homicide constitutes child abuse homicide if the actor causes the death of a
person under [
76-5-109 (1):
(a) if done recklessly as provided in Subsection 76-5-109 (2)(b);
(b) if done with criminal negligence as provided in Subsection 76-5-109 (2)(c); or
(c) if done with the mental culpability as provided in Subsection 76-5-109 (3)(a), (b), or (c).
(2) Child abuse homicide as described in Subsection (1)(a) is a second degree felony.
(3) Child abuse homicide as described in Subsections (1)(b) and (c) is a third degree felony.
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