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H.B. 210 Enrolled
This act modifies the Criminal Code by clarifying in the offense of sexual abuse of a child
that the reference to the victim's age as being younger than 14 applies to all provisions in
the section. This act also amends affected cross references.
This act affects sections of Utah Code Annotated 1953 as follows:
76-2-304.5, as last amended by Chapter 302, Laws of Utah 1999
76-3-406, as last amended by Chapter 40, Laws of Utah 1996
76-5-404.1, as last amended by Chapter 131, Laws of Utah 1998
76-5-406, as last amended by Chapter 129, Laws of Utah 2000
76-5-406.5, as last amended by Chapter 31, Laws of Utah 1998
77-27-9, as last amended by Chapters 40 and 100, Laws of Utah 1996
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 76-2-304.5 is amended to read:
76-2-304.5. Mistake as to victim's age not a defense.
(1) It is not a defense to the crime of child kidnaping, a violation of Section
76-5-301.1 ; rape of a child, a violation of Section 76-5-402.1 ; object rape of a child, a violation
of Section 76-5-402.3 ; sodomy upon a child, a violation of Section 76-5-403.1 ; or sexual abuse
of a child, a violation of Section 76-5-404.1 ; or aggravated sexual abuse of a child, a violation
of Subsection 76-5-404.1 [
mistakenly believed the victim to be 14 years of age or older at the time of the alleged offense
or was unaware of the victim's true age.
(2) It is not a defense to the crime of unlawful sexual activity with a minor, a violation
of Section 76-5-401 , sexual abuse of a minor, a violation of Section 76-5-401.1 , or an attempt
to commit either of these offenses, that the actor mistakenly believed the victim to be 16 years
of age or older at the time of the alleged offense or was unaware of the victim's true age.
Section 2. Section 76-3-406 is amended to read:
76-3-406. Crimes for which probation, suspension of sentence, lower category of
offense, or hospitalization may not be granted.
Notwithstanding Sections 76-3-201 and 77-18-1 and Title 77, Chapter [
provided in Section 76-5-406.5 , probation shall not be granted, the execution or imposition of
sentence shall not be suspended, the court shall not enter a judgment for a lower category of
offense, and hospitalization shall not be ordered, the effect of which would in any way shorten
the prison sentence for any person who commits a capital felony or a first degree felony
(1) Section 76-5-202 , aggravated murder;
(2) Section 76-5-203 , murder;
(3) Section 76-5-301.1 , child kidnaping;
(4) Section 76-5-302 , aggravated kidnaping;
(5) Section 76-5-402.1 , rape of a child;
(6) Section 76-5-402.3 , object rape of a child;
(7) Section 76-5-403.1 , sodomy on a child;
(8) Subsections 76-5-404.1 [
(9) Section 76-5-405 , aggravated sexual assault; or
(10) any attempt to commit a felony listed in Subsections (5), (6), and (7).
Section 3. Section 76-5-404.1 is amended to read:
76-5-404.1. Sexual abuse of a child -- Aggravated sexual abuse of a child.
(1) As used in this section, "child" means a person under the age of 14.
amounting to rape of a child, object rape of a child, sodomy upon a child, or an attempt to
commit any of these offenses, the actor touches the anus, buttocks, or genitalia of any child, the
breast of a female child [
a child, or causes a child to take indecent liberties with the actor or another with intent to cause
substantial emotional or bodily pain to any person or with the intent to arouse or gratify the
sexual desire of any person regardless of the sex of any participant.
the offense described in Subsection [
charged and admitted or found true in the action for the offense:
(a) the offense was committed by the use of a dangerous weapon as defined in Section
76-1-601 , or by force, duress, violence, intimidation, coercion, menace, or threat of harm, or was
committed during the course of a kidnaping;
(b) the accused caused bodily injury or severe psychological injury to the victim during
or as a result of the offense;
(c) the accused was a stranger to the victim or made friends with the victim for the
purpose of committing the offense;
(d) the accused used, showed, or displayed pornography or caused the victim to be
photographed in a lewd condition during the course of the offense;
(e) the accused, prior to sentencing for this offense, was previously convicted of any
felony, or of a misdemeanor involving a sexual offense;
(f) the accused committed the same or similar sexual act upon two or more victims at the
same time or during the same course of conduct;
(g) the accused committed, in Utah or elsewhere, more than five separate acts, which if
committed in Utah would constitute an offense described in this chapter, and were committed at
the same time, or during the same course of conduct, or before or after the instant offense;
(h) the offense was committed by a person who occupied a position of special trust in
relation to the victim; "position of special trust" means that position occupied by a person in a
position of authority, who, by reason of that position is able to exercise undue influence over the
victim, and includes, but is not limited to, a youth leader or recreational leader who is an adult,
adult athletic manager, adult coach, teacher, counselor, religious leader, doctor, employer, foster
parent, baby-sitter, adult scout leader, natural parent, stepparent, adoptive parent, legal guardian,
grandparent, aunt, uncle, or adult cohabitant of a parent;
(i) the accused encouraged, aided, allowed, or benefited from acts of prostitution or
sexual acts by the victim with any other person, or sexual performance by the victim before any
other person; or
(j) the accused caused the penetration, however slight, of the genital or anal opening of
the child by any part or parts of the human body other than the genitals or mouth.
imprisonment for an indeterminate term of not less than five years and which may be for life.
Imprisonment is mandatory in accordance with Section 76-3-406 .
Section 4. Section 76-5-406 is amended to read:
76-5-406. Sexual offenses against the victim without consent of victim --
An act of sexual intercourse, rape, attempted rape, rape of a child, attempted rape of a
child, object rape, attempted object rape, object rape of a child, attempted object rape of a child,
sodomy, attempted sodomy, forcible sodomy, attempted forcible sodomy, sodomy upon a child,
attempted sodomy upon a child, forcible sexual abuse, attempted forcible sexual abuse, sexual
abuse of a child, attempted sexual abuse of a child, aggravated sexual abuse of a child, attempted
aggravated sexual abuse of a child, or simple sexual abuse is without consent of the victim under
any of the following circumstances:
(1) the victim expresses lack of consent through words or conduct;
(2) the actor overcomes the victim through the actual application of physical force or
(3) the actor is able to overcome the victim through concealment or by the element of
(4) (a) (i) the actor coerces the victim to submit by threatening to retaliate in the
immediate future against the victim or any other person, and the victim perceives at the time that
the actor has the ability to execute this threat; or
(ii) the actor coerces the victim to submit by threatening to retaliate in the future against
the victim or any other person, and the victim believes at the time that the actor has the ability to
execute this threat;
(b) as used in this Subsection (4) "to retaliate" includes but is not limited to threats of
physical force, kidnaping, or extortion;
(5) the victim has not consented and the actor knows the victim is unconscious, unaware
that the act is occurring, or physically unable to resist;
(6) the actor knows that as a result of mental disease or defect, the victim is at the time of
the act incapable either of appraising the nature of the act or of resisting it;
(7) the actor knows that the victim submits or participates because the victim erroneously
believes that the actor is the victim's spouse;
(8) the actor intentionally impaired the power of the victim to appraise or control his or
her conduct by administering any substance without the victim's knowledge;
(9) the victim is younger than 14 years of age;
(10) the victim is younger than 18 years of age and at the time of the offense the actor
was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of
special trust in relation to the victim as defined in Subsection 76-5-404.1 [
(11) the victim is 14 years of age or older, but younger than 18 years of age, and the actor
is more than three years older than the victim and entices or coerces the victim to submit or
participate, under circumstances not amounting to the force or threat required under Subsection
(2) or (4); or
(12) the actor is a health professional or religious counselor, as those terms are defined in
this Subsection (12), the act is committed under the guise of providing professional diagnosis,
counseling, or treatment, and at the time of the act the victim reasonably believed that the act was
for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that
resistance by the victim could not reasonably be expected to have been manifested. For purposes
of this Subsection (12):
(a) "health professional" means an individual who is licensed or who holds himself out to
be licensed, or who otherwise provides professional physical or mental health services, diagnosis,
treatment, or counseling including, but not limited to, a physician, osteopathic physician, nurse,
dentist, physical therapist, chiropractor, mental health therapist, social service worker, clinical
social worker, certified social worker, marriage and family therapist, professional counselor,
psychiatrist, psychologist, psychiatric mental health nurse specialist, or substance abuse
(b) "religious counselor" means a minister, priest, rabbi, bishop, or other recognized
member of the clergy.
Section 5. Section 76-5-406.5 is amended to read:
76-5-406.5. Circumstances required for probation or suspension of sentence for
certain sex offenses against a child.
(1) In a case involving conviction, for Section 76-5-402.1 , rape of a child; Section
76-5-402.3 , object rape of a child; Section 76-5-403.1 , sodomy on a child; or any attempt to
commit a felony under those sections or a conviction for Subsections 76-5-404.1 [
consider probation to a residential sexual abuse treatment center only if all of the following
circumstances are found by the court to be present and the court in its discretion, considering the
circumstances of the offense, including the nature, frequency, and duration of the conduct, and
considering the best interests of the public and the child victim, finds probation to a residential
sexual abuse treatment center to be proper:
(a) the defendant did not use a weapon, force, violence, substantial duress or menace, or
threat of harm, in committing the offense or before or after committing the offense, in an attempt
to frighten the child victim or keep the child victim from reporting the offense;
(b) the defendant did not cause bodily injury to the child victim during or as a result of
the offense and did not cause the child victim severe psychological harm;
(c) the defendant, prior to the offense, had not been convicted of any public offense in
Utah or elsewhere involving sexual misconduct in the commission of the offense;
(d) the defendant did not commit an offense described in Part 4, Sexual Offenses, of this
chapter against more than one child victim or victim, at the same time, or during the same course
of conduct, or previous to or subsequent to the instant offense;
(e) the defendant did not use, show, or display pornography or create sexually-related
photographs or tape recordings in the course of the offense;
(f) the defendant did not act in concert with another offender during the offense or
knowingly commit the offense in the presence of a person other than the victim or with lewd
intent to reveal the offense to another;
(g) the defendant did not encourage, aid, allow, or benefit from any act of prostitution or
sexual act by the child victim with any other person or sexual performance by the child victim
before any other person;
(h) the defendant admits the offense of which he has been convicted and has been
accepted for mental health treatment in a residential sexual abuse treatment center that has been
approved by the Department of Corrections under Subsection (3);
(i) rehabilitation of the defendant through treatment is probable, based upon evidence
provided by a treatment professional who has been approved by the Department of Corrections
and the Department of Human Services under Subsection (3) and who has accepted the defendant
(j) the defendant has undergone a complete psychological evaluation conducted by a
professional approved by the Department of Corrections and the Department of Human Services
(i) the professional's opinion is that the defendant is not an exclusive pedophile and does
not present an immediate and present danger to the community if released on probation and
placed in a residential sexual abuse treatment center; and
(ii) the court accepts the opinion of the professional;
(k) if the offense is committed by a parent, stepparent, adoptive parent, or legal guardian
of the child victim, the defendant shall, in addition to establishing all other conditions of this
section, establish it is in the child victim's best interest that the defendant not be imprisoned by
presenting evidence provided by a treatment professional who:
(i) is treating the child victim and understands he will be treating the family as a whole;
(ii) has assessed the child victim for purposes of treatment as ordered by the court based
on a showing of good cause; and
(l) if probation is imposed, the defendant, as a condition of probation, may not reside in a
home where children younger than 18 years of age reside for at least one year beginning with the
commencement of treatment, and may not again take up residency in a home where children
younger than 18 years of age reside during the period of probation until allowed to do so by order
of the court.
(2) A term of incarceration of at least 90 days is to be served prior to treatment and
continue until such time as bed space is available at a residential sexual abuse treatment center as
provided under Subsection (3) and probation is to be imposed for up to a maximum of ten years.
(3) (a) The Department of Corrections shall develop qualification criteria for the
approval of the sexual abuse treatment programs and professionals under this section. The
criteria shall include the screening criteria employed by the department for sexual offenders.
(b) The sexual abuse treatment program shall be at least one year in duration, shall be
residential, and shall specifically address the sexual conduct for which the defendant was
(4) Establishment by the defendant of all the criteria of this section does not mandate the
granting under this section of probation or modification of the sentence that would otherwise be
imposed by Section 76-3-406 regarding sexual offenses against children. The court has
discretion to deny the request based upon its consideration of the circumstances of the offense,
(a) the nature, frequency, and duration of the conduct;
(b) the effects of the conduct on any child victim involved;
(c) the best interest of the public and any child victim; and
(d) the characteristics of the defendant, including any risk the defendant presents to the
public and specifically to children.
(5) The defendant has the burden to establish by a preponderance of evidence eligibility
under all of the criteria of this section.
(6) If the court finds a defendant granted probation under this section fails to cooperate or
succeed in treatment or violates probation to any substantial degree, the sentence previously
imposed for the offense shall be immediately executed.
(7) The court shall enter written findings of fact regarding the conditions established by
the defendant that justify the granting of probation under this section.
(8) In cases involving conviction of any sexual offense against a child other than those
offenses provided in Subsection (1), the court shall consider the circumstances described in
Subsection (1) as advisory in determining whether or not execution of sentence should be
suspended and probation granted. The defendant is not required to satisfy all of those
circumstances for eligibility pursuant to this Subsection (8).
Section 6. Section 77-27-9 is amended to read:
77-27-9. Parole proceedings.
(1) (a) The Board of Pardons and Parole may pardon or parole any offender or commute
or terminate the sentence of any offender committed to a penal or correctional facility under the
jurisdiction of the Department of Corrections for a felony or class A misdemeanor except as
provided in Subsection (2).
(b) The board may not release any offender before the minimum term has been served
unless the board finds mitigating circumstances which justify the release and unless the board has
granted a full hearing, in open session, after previous notice of the time and place of the hearing,
and recorded the proceedings and decisions of the board.
(c) The board may not pardon or parole any offender or commute or terminate the
sentence of any offender unless the board has granted a full hearing, in open session, after
previous notice of the time and place of the hearing, and recorded the proceedings and decisions
of the board.
(d) The release of an offender shall be at the initiative of the board, which shall consider
each case as the offender becomes eligible. However, a prisoner may submit his own
application, subject to the rules of the board promulgated in accordance with Title 63, Chapter
46a, Utah Administrative Rulemaking Act.
(2) (a) A person sentenced to prison prior to April 29, 1996, for a first degree felony
involving child [
76-5-402.1 ; object rape of a child, a violation of Section 76-5-402.3 ; sodomy upon a child, a
violation of Section 76-5-403.1 ; aggravated sexual abuse of a child, a violation of Subsection
as described in Section 76-3-407 , may not be eligible for release on parole by the Board of
Pardons and Parole until the offender has fully completed serving the minimum mandatory
sentence imposed by the court. This subsection supersedes any other provision of law.
(b) The board may not parole any offender or commute or terminate the sentence of any
offender before the offender has served the minimum term for the offense, if the offender was
sentenced prior to April 29, 1996, and if:
(i) the offender was convicted of forcible sexual abuse, forcible sodomy, rape,
aggravated assault, [
sexual assault as defined in Title 76, Chapter 5, Offenses Against the Person; and
(ii) the victim of the offense was under 18 years of age at the time the offense was
(c) For a crime committed on or after April 29, 1996, the board may parole any offender
under Subsections (2)(b)(i) and (ii) for lifetime parole as provided in Section 77-27-9 .
(d) The board may not pardon or parole any offender or commute or terminate the
sentence of any offender who is sentenced to life in prison without parole except as provided in
(e) On or after April 27, 1992, the board may commute a sentence of death only to a
sentence of life in prison without parole.
(f) The restrictions imposed in Subsections 77-27-9 (2) (d) and (e) apply to all cases that
come before the Board of Pardons and Parole on or after April 27, 1992.
(3) The board may issue subpoenas to compel the attendance of witnesses and the
production of evidence, to administer oaths, and to take testimony for the purpose of any
investigation by the board or any of its members or by a designated hearing examiner in the
performance of its duties. A person who willfully disobeys a properly served subpoena issued by
the board is guilty of a class B misdemeanor.
(4) (a) The board may adopt rules consistent with law for its government, meetings and
hearings, the conduct of proceedings before it, the parole and pardon of offenders, the
commutation and termination of sentences, and the general conditions under which parole may
be granted and revoked.
(b) The rules shall ensure an adequate opportunity for victims to participate at hearings
held under this chapter, as provided in Section 77-27-9.5 .
(c) The rules may allow the board to establish reasonable and equitable time limits on the
presentations by all participants in hearings held under this chapter.
(5) The board does not provide counseling or therapy for victims as a part of their
participation in any hearing under this chapter.
(6) The board may parole a person sentenced to life in prison without parole if the board
finds by clear and convincing evidence that the person is permanently incapable of being a threat
to the safety of society.
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