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H.B. 237






Sponsor: Duane E. Bourdeaux

             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

             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

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