H.B. 240 Enrolled

KIDNAPPING AMENDMENTS
2001 GENERAL SESSION
STATE OF UTAH
Sponsor: Glenn L. Way
This act modifies the Criminal Code regarding kidnapping offenses, by amending the
elements of the offenses, stating the defenses, and specifying lesser included offenses. This
act also includes cross reference amendments.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
76-3-202, as last amended by Chapter 69, Laws of Utah 1998
76-5-301, as last amended by Chapter 88, Laws of Utah 1983
76-5-301.1, as last amended by Chapter 40, Laws of Utah 1996
76-5-302, as last amended by Chapter 69, Laws of Utah 1998
76-5-304, as enacted by Chapter 196, Laws of Utah 1973
77-27-7, as last amended by Chapter 69, Laws of Utah 1998
ENACTS:
76-5-305, Utah Code Annotated 1953
76-5-306, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 76-3-202 is amended to read:
76-3-202. Paroled persons -- Termination or discharge from sentence -- Time served
on parole -- Discretion of Board of Pardons and Parole.
(1) Except as otherwise provided in this section, every person committed to the state prison
to serve an indeterminate term and later released on parole shall, upon completion of three years
on parole outside of confinement and without violation, be terminated from his sentence unless
the person is earlier terminated by the Board of Pardons and Parole. Any person who violates the
terms of his parole, while serving parole, shall at the discretion of the Board of Pardons and Parole
be recommitted to prison to serve the portion of the balance of his term as determined by the Board
of Pardons and Parole, but not to exceed the maximum term.

(2) Every person convicted of a second degree felony for violating Section 76-5-404 or
76-5-404.1 , or attempting to violate any of those sections, upon completion of ten years parole
outside of confinement and without violation, shall be terminated from his sentence unless the
person is earlier terminated by the Board of Pardons and Parole. Any person who violates the terms
of his parole, while serving parole, shall at the discretion of the Board of Pardons and Parole be
recommitted to prison to serve the portion of the balance of his term as determined by the Board of
Pardons and Parole, but not to exceed the maximum term.
(3) Every person convicted of a first degree felony for violating Section 76-5-301.1 ,
Subsection 76-5-302 (1)(b)[(v)](vi), Section 76-5-402 , 76-5-402.1 , 76-5-402.2 , 76-5-402.3 , 76-5-403 ,
76-5-403.1 , 76-5-404.1 , or 76-5-405 , or attempting to violate any of those sections, shall complete
a term of lifetime parole outside of confinement and without violation unless the person is earlier
terminated by the Board of Pardons and Parole. Any person who violates the terms of his parole,
while serving parole, shall at the discretion of the Board of Pardons and Parole be recommitted to
prison to serve the portion of the balance of his term as determined by the Board of Pardons and
Parole, but not to exceed the maximum term.
(4) In order for a parolee convicted on or after May 5, 1997, to be eligible for early
termination from parole, the parolee must provide:
(a) evidence to the Board of Pardons and Parole that the parolee has completed high school
classwork and has obtained a high school graduation diploma, a GED certificate, or a vocational
certificate; or
(b) documentation of the inability to obtain one of the items listed in Subsection (4)(a)
because of:
(i) a diagnosed learning disability; or
(ii) other justified cause.
(5) Any person paroled following a former parole revocation may not be discharged from
his sentence until either:
(a) he has served three years or ten years as provided in Subsection (2) on parole outside of
confinement and without violation, or in the case of a person convicted of a first degree felony

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violation of Section 76-5-301.1 , Subsection 76-5-302 (1)(b)[(v)](vi), Section 76-5-402 , 76-5-402.1 ,
76-5-402.2 , 76-5-402.3 , 76-5-403 , 76-5-403.1 , 76-5-404.1 , or 76-5-405 , or attempting to violate any
of those sections, lifetime parole outside of confinement and without violation;
(b) his maximum sentence has expired; or
(c) the Board of Pardons and Parole so orders.
(6) (a) All time served on parole, outside of confinement and without violation constitutes
service of the total sentence but does not preclude the requirement of serving a three-year, ten-year,
or lifetime parole term, as the case may be, outside of confinement and without violation.
(b) Any time a person spends outside of confinement after commission of a parole violation
does not constitute service of the total sentence unless the person is exonerated at a hearing to revoke
the parole.
(c) Any time spent in confinement awaiting a hearing before the Board of Pardons and
Parole or a decision by the board concerning revocation of parole constitutes service of the sentence.
In the case of exoneration by the board, the time spent shall be included in computing the total parole
term.
(7) When any parolee without authority from the Board of Pardons and Parole absents
himself from the state or avoids or evades parole supervision, the period of absence, avoidance, or
evasion tolls the parole period.
(8) While on parole, time spent in confinement outside the state may not be credited toward
the service of any Utah sentence. Time in confinement outside the state for a conviction obtained
in another jurisdiction shall toll the expiration of the Utah sentence.
(9) This section does not preclude the Board of Pardons and Parole from paroling or
discharging an inmate at any time within the discretion of the Board of Pardons and Parole unless
otherwise specifically provided by law.
(10) The parolee may petition the Board of Pardons and Parole for termination of lifetime
parole as provided by this section [ 76-3-202 ] in the case of a person convicted of a first degree felony
violation Section 76-5-301.1 , Subsection 76-5-302 (1)(b)[(v)](vi), Section 76-5-402 , 76-5-402.1 ,
76-5-402.2 , 76-5-402.3 , 76-5-403 , 76-5-403.1 , 76-5-404.1 , or 76-5-405 , or attempting to violate any

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of those sections.
Section 2. Section 76-5-301 is amended to read:
76-5-301. Kidnapping.
(1) [A person] An actor commits [kidnaping when he] kidnapping if the actor intentionally
or knowingly [and], without authority of law, and against the will of the victim:
(a) detains or restrains [another] the victim for any substantial period of time; [or]
(b) detains or restrains [another] the victim in circumstances exposing [him] the victim to
risk of [serious] bodily injury; [or]
(c) holds [another] the victim in involuntary servitude; [or]
(d) detains or restrains a minor without the consent of [its] the minor's parent or legal
guardian or the consent of a person acting in loco parentis, if the minor is 14 years of age or older
but younger than 18 years of age; or
(e) moves the victim any substantial distance or across a state line.
(2) As used in this section, acting "against the will of the victim" includes acting without
the consent of the legal guardian or custodian of a victim who is a mentally incompetent person.
[(2) Kidnaping] (3) Kidnapping is a second degree felony [of the second degree].
Section 3. Section 76-5-301.1 is amended to read:
76-5-301.1. Child kidnapping.
(1) [A person] An actor commits child [kidnaping when] kidnapping if the [person] actor
intentionally or knowingly, without authority of law, and [against the will of the victim,] by any
means and in any manner, seizes, confines, detains, or transports a child under the age of 14 [with
intent to keep or conceal the child from its parent, guardian, or other person having lawful custody
or control of the child. (2) A seizure, confinement, detention, or transportation is deemed to be
against the will of the victim if the victim is younger than 14 years of age at the time of the offense,
and the seizure, confinement, detention, or transportation, is] without the [effective] consent of the
victim's [custodial] parent[,] or guardian, or the consent of a person acting in loco parentis.
[(3)] (2) Violation of Section 76-5-303 is not a violation of this section.
[(4)] (3) Child [kidnaping] kidnapping is a first degree felony punishable by imprisonment

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for an indeterminate term of not less than 6, 10, or 15 years and which may be for life. Imprisonment
is mandatory in accordance with Section 76-3-406 .
Section 4. Section 76-5-302 is amended to read:
76-5-302. Aggravated kidnapping.
(1) [A person] An actor commits aggravated [kidnaping] kidnapping if the [person
intentionally or knowingly, without authority of law and against the will of the victim, by any means
and in any manner, seizes, confines, detains, or transports the victim] actor, in the course of
committing unlawful detention or kidnapping:
(a) [and in committing, attempting to commit, or in the immediate flight after the attempt
or commission of the kidnaping, the actor] possesses, uses, or threatens to use a dangerous weapon
as defined in Section 76-1-601 ; or
(b) acts with intent:
(i) to hold the victim for ransom or reward, or as a shield or hostage, or to compel a third
person to engage in particular conduct or to forbear from engaging in particular conduct;
(ii) to facilitate the commission, attempted commission, or flight after commission or
attempted commission of a felony;
(iii) to hinder or delay the discovery of or reporting of a felony;
[(iii)] (iv) to inflict bodily injury on or to terrorize the victim or another;
[(iv)] (v) to interfere with the performance of any governmental or political function; or
[(v)] (vi) to commit a sexual offense as described in Title 76, Chapter 5, Part 4 [of this
chapter], Sexual Offenses.
[(2) A detention or moving is deemed to be the result of force, threat, or deceit if the victim
is mentally incompetent or younger than 16 years and the detention or moving is accomplished
without the effective consent of the victim's custodial parent, guardian, or person acting in loco
parentis to the victim.]
(2) As used in this section, "in the course of committing unlawful detention or kidnapping"
means in the course of committing, attempting to commit, or in the immediate flight after the attempt
or commission of a violation of:

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(a ) Section 76-5-301 , kidnapping; or
(b) Section 76-5-304 , unlawful detention.
(3) Aggravated [kidnaping] kidnapping is a first degree felony punishable by imprisonment
for an indeterminate term of not less than 6, 10, or 15 years and which may be for life. Imprisonment
is mandatory in accordance with Section 76-3-406 .
Section 5. Section 76-5-304 is amended to read:
76-5-304. Unlawful detention.
(1) [A person] An actor commits unlawful detention if [he] the actor intentionally or
knowingly, without authority of law, and against the will of the victim, detains or restrains [another
unlawfully so as to interfere substantially with his liberty] the victim under circumstances not
constituting a violation of:
(a) kidnapping, Section 76-5-301 ;
(b) child kidnapping, Section 76-5-301.1 ; or
(c) aggravated kidnapping, Section 76-5-302 .
(2) As used in this section, acting "against the will of the victim" includes acting without the
consent of the legal guardian or custodian of a victim who is a mentally incompetent person.
[(2)] (3) Unlawful detention is a class B misdemeanor.
Section 6. Section 76-5-305 is enacted to read:
76-5-305. Defenses.
It is a defense under this part that:
(1) the actor was acting under a reasonable belief that:
(a) the conduct was necessary to protect any person from imminent bodily injury or death;
or
(b) the detention or restraint was authorized by law; or
(2) the alleged victim is younger than 18 years of age or is mentally incompetent, and the
actor was acting under a reasonable belief that the custodian, guardian, legal guardian, custodial
parent, or person acting in loco parentis to the victim would, if present, have consented to the actor's
conduct.

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Section 7. Section 76-5-306 is enacted to read:
76-5-306. Lesser included offenses.
In this part, the following offenses are lesser included offenses of Section 76-5-302 ,
aggravated kidnapping:
(1) Section 76-5-301 , kidnapping; and
(2) Section 76-5-304 , unlawful detention.
Section 8. Section 77-27-7 is amended to read:
77-27-7. Parole or hearing dates -- Interview -- Hearings -- Report of alienists --
Mental competency.
(1) The Board of Pardons and Parole shall determine within six months after the date of an
offender's commitment to the custody of the Department of Corrections, for serving a sentence upon
conviction of a felony or class A misdemeanor offense, a date upon which the offender shall be
afforded a hearing to establish a date of release or a date for a rehearing, and shall promptly notify
the offender of the date.
(2) Before reaching a final decision to release any offender under this chapter, the chair shall
cause the offender to appear before the board, its panel, or any appointed hearing officer, who shall
personally interview the offender to consider his fitness for release and verify as far as possible
information furnished from other sources. Any offender may waive a personal appearance before
the board. Any offender outside of the state shall, if ordered by the board, submit to a courtesy
hearing to be held by the appropriate authority in the jurisdiction in which the offender is housed in
lieu of an appearance before the board. The offender shall be promptly notified in writing of the
board's decision.
(3) In the case of an offender convicted of violating or attempting to violate any of the
provisions of Section 76-5-301.1 , Subsection 76-5-302 (1)(b)[(v)](vi), [Sections] Section 76-5-402 ,
76-5-402.1 , 76-5-402.2 , 76-5-402.3 , 76-5-403 , 76-5-403.1 , 76-5-404 , 76-5-404.1 , [and] or 76-5-405 ,
the chair shall appoint one or more alienists who shall examine the offender within six months prior
to a hearing at which an original parole date is granted on any offense listed in this Subsection (3).
The alienists shall report in writing the results of the examination to the board prior to the hearing.

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The report of the appointed alienists shall specifically address the question of the offender's current
mental condition and attitudes as they relate to any danger the offender may pose to children or
others if the offender is released on parole.
(4) The parolee may petition the board for termination of lifetime parole as provided in
Section 76-3-202 in the case of a person convicted of a first degree felony violation or convicted of
attempting to violate Section 76-5-301.1 , Subsection 76-5-302 (1)(b)[(v)](vi), [Sections] Section
76-5-402 , 76-5-402.1 , 76-5-402.2 , 76-5-402.3 , 76-5-403 , 76-5-403.1 , 76-5-404.1 , [and] or 76-5-405 .
(5) In any case where an offender's mental competency is questioned by the board, the chair
shall appoint one or more alienists to examine the offender and report in writing to the board,
specifically addressing the issue of competency.
(6) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
board shall make rules governing:
(a) the hearing process;
(b) alienist examination; and
(c) parolee petitions for termination of parole.

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