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H.B. 173

             1     

FORFEITURE RELATING TO SEXUAL

             2     
OFFENSES AGAINST CHILDREN

             3     
2000 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Sponsor: Perry L. Buckner

             6      AN ACT RELATING TO CRIMINAL CONDUCT; PROVIDING FOR THE FORFEITURE OF
             7      COMPUTERS AND COMPUTER EQUIPMENT USED IN THE SEXUAL EXPLOITATION
             8      OR ABUSE OF A MINOR; AND SPECIFYING USE OF FORFEITURE PROCEEDS.
             9      This act affects sections of Utah Code Annotated 1953 as follows:
             10      AMENDS:
             11          53A-16-101, as last amended by Chapter 38, Laws of Utah 1997
             12      ENACTS:
             13          76-3-502, Utah Code Annotated 1953
             14      Be it enacted by the Legislature of the state of Utah:
             15          Section 1. Section 53A-16-101 is amended to read:
             16           53A-16-101. Uniform School Fund -- Sources enumerated.
             17          The Uniform School Fund established by Utah Constitution, Article X, Section 5, consists
             18      of money received in the state treasury from the following sources:
             19          (1) interest on the State School Fund;
             20          (2) escheats and forfeitures and proceeds from the sale or other disposition of property that
             21      may accrue to the state by escheat or forfeiture, except under Section 58-37-13 , regarding
             22      controlled substances, [and Section] Sections 41-6-13.7 and 76-3-501 , regarding vehicles
             23      [involved in police pursuits], and Section 76-3-502 , regarding computers and personal property
             24      used in sexual offenses involving minors;
             25          (3) unclaimed shares and proceeds from the sale or other disposition of those shares and
             26      unclaimed dividends of any corporation incorporated under Utah law;
             27          (4) all revenues derived from renewable resources on school and state lands, other than


             28      those granted for specific purposes;
             29          (5) the proceeds derived from the leasing or renting of school lands and other state lands,
             30      including all forfeitures, penalties, and grazing and other fees received in connection with the
             31      leases and rentals;
             32          (6) money received from leases or rentals of land acquired by the state through foreclosure
             33      of mortgages securing common school funds or through deeds from mortgagors or owners of those
             34      lands; and
             35          (7) all other constitutional or legislative allocations to the fund, including revenues
             36      received under Utah Constitution, Article XIII, Section 12(3), from taxes on income or intangible
             37      property, except for those income tax revenues appropriated to the state's higher education system.
             38          Section 2. Section 76-3-502 is enacted to read:
             39          76-3-502. Forfeiture of computer equipment used in sexual offenses involving minors.
             40          (1) As used in this section:
             41          (a) "Computer equipment" means:
             42          (i) computers;
             43          (ii) computer equipment or devices of any kind;
             44          (iii) computer software; and
             45          (iv) technological equipment or other apparatus intended for use with a computer.
             46          (b) "Internet service provider" means:
             47          (i) a facility owned or operated by a telephone corporation, as defined by Section 54-2-1 ,
             48      that is used to provide access to the internet; or
             49          (ii) an entity whose purpose is to provide access to the internet through telecommunication
             50      facilities.
             51          (c) "Sexual offense involving a minor" means a violation of:
             52          (i) Section 76-5a-3 , sexual exploitation of a minor;
             53          (ii) Section 76-5-404.1 , sexual abuse of a child and aggravated sexual abuse of a child;
             54          (iii) Section 76-10-1206 , dealing in harmful material to a minor;
             55          (iv) Section 76-5-402.1 , rape of a child; or
             56          (v) Section 76-5-403.1 , sodomy on a child.
             57          (2) Any computer equipment is subject to forfeiture if the computer equipment was used
             58      by a defendant in the commission of a sexual offense involving a minor, and:


             59          (a) (i) the defendant is the owner of the computer equipment used in the commission of
             60      the offense;
             61          (ii) the defendant exercised direct and personal control over the computer equipment in
             62      committing the offense; and
             63          (iii) the defendant is convicted for the offense regarding which the defendant used the
             64      computer equipment;
             65          (b) the owner of the computer equipment used in the commission of the offense was a
             66      knowing and intentional participant in the offense for which the defendant is convicted; or
             67          (c) the owner of the computer equipment used in the commission of the offense voluntarily
             68      and knowingly allowed the computer equipment to be used to commit the offense for which the
             69      defendant is convicted.
             70          (3) (a) The computer equipment of an internet service provider is subject to forfeiture
             71      under this section only if the court finds the internet service provider was a knowing and
             72      intentional participant in the commission of a sexual offense involving a minor.
             73          (b) As used in this Subsection (3), a "knowing and intentional participant" does not include
             74      an internet service provider who:
             75          (i) provides the client's internet access solely as a passive conduit; and
             76          (ii) does not exercise any influence or control over the content of the client's web site or
             77      page other than as may be authorized by the contract between the client and the internet service
             78      provider.
             79          (4) Any forfeiture of computer equipment under this section subject to any bona fide
             80      security interest is subject to the interest of any secured party who could not have known by the
             81      exercise of reasonable diligence that a sexual offense involving a minor would or did take place
             82      in the course of use of the computer equipment.
             83          (5) When computer equipment is seized under this section, any interested person or
             84      claimant of the computer equipment may file a petition in the court having jurisdiction for release
             85      of his interest in the computer equipment. Action on the petition shall be the same as in Section
             86      76-3-501 .
             87          (6) Forfeiture proceedings shall be in accordance with Subsections 76-3-501 (3) through
             88      (9), except that:
             89          (a) if the court, prior to the resolution of the criminal charges, enters a finding and


             90      judgment that any computer equipment seized under this section is not subject to forfeiture and
             91      shall be released to the claimant, the court shall stay the entry of that judgment until resolution of
             92      the criminal charges if the prosecution demonstrates to the court by a preponderance of the
             93      evidence that the computer equipment subject to the judgment of release is required for the
             94      criminal proceedings for evidentiary purposes; and
             95          (b) the net proceeds from any forfeiture under this section shall be deposited in the General
             96      Fund, rather than as provided in Subsection 76-3-501 (8).
             97          (7) (a) Any computer equipment that has been held as evidence in the prosecution of an
             98      offense involving a minor under this section and that has not been claimed under Subsection (6)
             99      shall be returned to the true owner, except as provided under Subsection (7)(b).
             100          (b) The computer equipment shall be forfeited under the procedures described in this
             101      section if the owner of the computer equipment:
             102          (i) cannot be identified after diligent effort by the law enforcement agency responsible for
             103      seizure of the computer equipment;
             104          (ii) is the person convicted of a sexual offense involving minors that involved the use of
             105      the computer equipment; and
             106          (iii) was a knowing participant in the commission of a sexual offense involving a minor,
             107      the commission of which also involved the use of the owner's computer equipment, and another
             108      person was convicted for the offense; or
             109          (iv) voluntarily and knowingly allowed the computer equipment to be used to commit a
             110      sexual offense involving a minor for which another person was convicted.




Legislative Review Note
    as of 9-13-99 8:41 AM


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

Office of Legislative Research and General Counsel


Committee Note

The Law Enforcement and Criminal Justice Interim Committee recommended this bill.


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