H.B. 237

1

DEPARTMENT OF CORRECTIONS - THERAPY
2 PROVIDER QUALIFICATIONS
3 2004 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Duane E. Bourdeaux
6
7 LONG TITLE
8 General Description:
9 This bill amends the authority to approve mental health professionals for the evaluation
10 of certain sex offenders. This bill also amends the evaluation process.
11 Highlighted Provisions:
12 This bill:
13 . states that the evaluation to determine if a sex offender may be sentenced to
14 probation in a residential treatment center be conducted prior to the sentencing of
15 the defendant; and
16 . provides that the mental health professionals who conduct the evaluations are
17 required to be approved by the Department of Corrections only, and removes the
18 requirement that the Department of Human Services must also approve these
19 professionals.
20 Monies Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
26 76-5-406.5, as last amended by Chapter 149, Laws of Utah 2003
27

28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 76-5-406.5 is amended to read:
30 76-5-406.5. Circumstances required for probation or suspension of sentence for
31 certain sex offenses against a child.
32 (1) In a case involving a conviction[,] for a violation of Section 76-5-402.1 , rape of a
33 child; Section 76-5-402.3 , object rape of a child; Section 76-5-403.1 , sodomy on a child; or any
34 attempt to commit a felony under those sections or a conviction for a violation of Subsections
35 76-5-404.1 (4) and (5), aggravated sexual abuse of a child, the court may suspend execution of
36 sentence and consider probation to a residential sexual abuse treatment center only if all of the
37 following circumstances are found by the court to be present and the court in its discretion,
38 considering the circumstances of the offense, including the nature, frequency, and duration of
39 the conduct, and considering the best interests of the public and the child victim, finds
40 probation to a residential sexual abuse treatment center to be proper:
41 (a) the defendant did not use a weapon, force, violence, substantial duress or menace,
42 or threat of harm, in committing the offense or before or after committing the offense, in an
43 attempt to frighten the child victim or keep the child victim from reporting the offense;
44 (b) the defendant did not cause bodily injury to the child victim during or as a result of
45 the offense and did not cause the child victim severe psychological harm;
46 (c) the defendant, prior to the offense, had not been convicted of any public offense in
47 Utah or elsewhere involving sexual misconduct in the commission of the offense;
48 (d) the defendant did not commit an offense described in this Part 4, Sexual Offenses,
49 [of this chapter] against more than one child victim or victim, at the same time, or during the
50 same course of conduct, or previous to or subsequent to the instant offense;
51 (e) the defendant did not use, show, or display pornography or create sexually-related
52 photographs or tape recordings in the course of the offense;
53 (f) the defendant did not act in concert with another offender during the offense or
54 knowingly commit the offense in the presence of a person other than the victim or with lewd
55 intent to reveal the offense to another;
56 (g) the defendant did not encourage, aid, allow, or benefit from any act of prostitution
57 or sexual act by the child victim with any other person or sexual performance by the child
58 victim before any other person;

59 (h) the defendant admits the offense of which he has been convicted and has been
60 accepted for mental health treatment in a residential sexual abuse treatment center that has been
61 approved by the Department of Corrections under Subsection (3);
62 (i) rehabilitation of the defendant through treatment is probable, based upon evidence
63 provided by a treatment professional who has been approved by the Department of Corrections
64 [and the Department of Human Services] under Subsection (3) and who has accepted the
65 defendant for treatment;
66 (j) prior to being sentenced, the defendant has undergone a complete psychological
67 evaluation conducted by a professional approved by the Department of Corrections [and the
68 Department of Human Services] and:
69 (i) the professional's opinion is that the defendant is not an exclusive pedophile and
70 does not present an immediate and present danger to the community if released on probation
71 and placed in a residential sexual abuse treatment center; and
72 (ii) the court accepts the opinion of the professional;
73 (k) if the offense is committed by a parent, stepparent, adoptive parent, or legal
74 guardian of the child victim, the defendant shall, in addition to establishing all other conditions
75 of this section, establish it is in the child victim's best interest that the defendant not be
76 imprisoned, by presenting evidence provided by a treatment professional who:
77 (i) is treating the child victim and understands he will be treating the family as a whole;
78 or
79 (ii) has assessed the child victim for purposes of treatment as ordered by the court
80 based on a showing of good cause; and
81 (l) if probation is imposed, the defendant, as a condition of probation, may not reside in
82 a home where children younger than 18 years of age reside for at least one year beginning with
83 the commencement of treatment, and may not again take up residency in a home where
84 children younger than 18 years of age reside during the period of probation until allowed to do
85 so by order of the court.
86 (2) A term of incarceration of at least 90 days is to be served prior to treatment and
87 continue until [such] the time [as] when bed space is available at a residential sexual abuse
88 treatment center as provided under Subsection (3) and probation is to be imposed for up to a
89 maximum of ten years.

90 (3) (a) The Department of Corrections shall develop qualification criteria for the
91 approval of the sexual abuse treatment programs and professionals under this section. The
92 criteria shall include the screening criteria employed by the department for sexual offenders.
93 (b) The sexual abuse treatment program shall be at least one year in duration, shall be
94 residential, and shall specifically address the sexual conduct for which the defendant was
95 convicted.
96 (4) Establishment by the defendant of all the criteria of this section does not mandate
97 the granting under this section of probation or modification of the sentence that would
98 otherwise be imposed by Section 76-3-406 regarding sexual offenses against children. The
99 court has discretion to deny the request based upon its consideration of the circumstances of the
100 offense, including:
101 (a) the nature, frequency, and duration of the conduct;
102 (b) the effects of the conduct on any child victim involved;
103 (c) the best interest of the public and any child victim; and
104 (d) the characteristics of the defendant, including any risk the defendant presents to the
105 public and specifically to children.
106 (5) The defendant has the burden to establish by a preponderance of evidence
107 eligibility under all of the criteria of this section.
108 (6) If the court finds a defendant granted probation under this section fails to cooperate
109 or succeed in treatment or violates probation to any substantial degree, the sentence previously
110 imposed for the offense shall be immediately executed.
111 (7) The court shall enter written findings of fact regarding the conditions established by
112 the defendant that justify the granting of probation under this section.
113 (8) In cases involving conviction of any sexual offense against a child other than those
114 offenses provided in Subsection (1), the court shall consider the circumstances described in
115 Subsection (1) as advisory in determining whether or not execution of sentence should be
116 suspended and probation granted. The defendant is not required to satisfy all of those
117 circumstances for eligibility pursuant to this Subsection (8).

Legislative Review Note
as of 1-21-04 3:48 PM

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

Office of Legislative Research and General Counsel