First Substitute H.B. 159

Representative Ryan D. Wilcox proposes the following substitute bill:

1 UNLAWFUL DETENTION AMENDMENTS
2 2012 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Ryan D. Wilcox
5 Senate Sponsor: J. Stuart Adams
6
7 LONG TITLE
8 General Description:
9 This bill modifies the Criminal Code regarding the offense of unlawful detention.
10 Highlighted Provisions:
11 This bill:
12 . creates the offense of unlawful detention of a minor when a person 18 years of age
13 or older coerces or influences a minor who is 14 or 15 years of age to stay with the
14 person without the consent of the minor's parent or guardian, for an unreasonable
15 amount of time, and in a situation that is not the offense of kidnapping.
16 Money Appropriated in this Bill:
17 None
18 Other Special Clauses:
19 None
20 Utah Code Sections Affected:
21 AMENDS:
22 31A-21-501, as last amended by Laws of Utah 2011, Chapter 320
23 76-5-304, as last amended by Laws of Utah 2001, Chapter 301
24 76-5-306, as enacted by Laws of Utah 2001, Chapter 301
25 77-36-1, as last amended by Laws of Utah 2011, Chapters 113 and 320

26
27 Be it enacted by the Legislature of the state of Utah:
28 Section 1. Section 31A-21-501 is amended to read:
29 31A-21-501. Definitions.
30 For purposes of this part:
31 (1) "Applicant" means:
32 (a) in the case of an individual life or accident and health policy, the person who seeks
33 to contract for insurance benefits; or
34 (b) in the case of a group life or accident and health policy, the proposed certificate
35 holder.
36 (2) "Cohabitant" means an emancipated individual pursuant to Section 15-2-1 or an
37 individual who is 16 years of age or older who:
38 (a) is or was a spouse of the other party;
39 (b) is or was living as if a spouse of the other party;
40 (c) is related by blood or marriage to the other party;
41 (d) has one or more children in common with the other party; or
42 (e) resides or has resided in the same residence as the other party.
43 (3) "Child abuse" means the commission or attempt to commit against a child a
44 criminal offense described in:
45 (a) Title 76, Chapter 5, Part 1, Assault and Related Offenses;
46 (b) Title 76, Chapter 5, Part 4, Sexual Offenses;
47 (c) Subsections 76-9-702 (1) through (4), Lewdness - Sexual battery; or
48 (d) Section 76-9-702.5 , Lewdness Involving a Child.
49 (4) "Domestic violence" means any criminal offense involving violence or physical
50 harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to
51 commit a criminal offense involving violence or physical harm, when committed by one
52 cohabitant against another and includes commission or attempt to commit, any of the following
53 offenses by one cohabitant against another:
54 (a) aggravated assault, as described in Section 76-5-103 ;
55 (b) assault, as described in Section 76-5-102 ;
56 (c) criminal homicide, as described in Section 76-5-201 ;

57 (d) harassment, as described in Section 76-5-106 ;
58 (e) electronic communication harassment, as described in Section 76-9-201 ;
59 (f) kidnaping, child kidnaping, or aggravated kidnaping, as described in Sections
60 76-5-301 , 76-5-301.1 , and 76-5-302 ;
61 (g) mayhem, as described in Section 76-5-105 ;
62 (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, and Section 76-5b-201 ;
63 (i) stalking, as described in Section 76-5-106.5 ;
64 (j) unlawful detention or unlawful detention of a minor, as described in Section
65 76-5-304 ;
66 (k) violation of a protective order or ex parte protective order, as described in Section
67 76-5-108 ;
68 (l) any offense against property described in Title 76, Chapter 6, Part 1, [2, or 3]
69 Property Destruction, Part 2, Burglary and Criminal Trespass, or Part 3, Robbery;
70 (m) possession of a deadly weapon with intent to assault, as described in Section
71 76-10-507 ; or
72 (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
73 person, building, or vehicle, as described in Section 76-10-508 .
74 (5) "Subject of domestic abuse" means an individual who is, has been, may currently
75 be, or may have been subject to domestic violence or child abuse.
76 Section 2. Section 76-5-304 is amended to read:
77 76-5-304. Unlawful detention and unlawful detention of a minor.
78 (1) An actor commits unlawful detention if the actor intentionally or knowingly,
79 without authority of law, and against the will of the victim, detains or restrains the victim under
80 circumstances not constituting a violation of:
81 (a) kidnapping, Section 76-5-301 ;
82 (b) child kidnapping, Section 76-5-301.1 ; or
83 (c) aggravated kidnapping, Section 76-5-302 .
84 (2) An actor commits unlawful detention of a minor if the actor intentionally or
85 knowingly, without authority of law, and against the will of the victim, coerces or exerts
86 influence over the victim with the intent to cause the victim to remain with the actor for an
87 unreasonable period of time under the circumstances, and:

88 (a) the act is under circumstances not constituting a violation of:
89 (i) kidnapping, Section 76-5-301 ;
90 (ii) child kidnapping, Section 76-5-301.1 ; or
91 (iii) aggravated kidnapping, Section 76-5-302 ; and
92 (b) the actor is 18 years of age or older.
93 [(2)] (3) As used in this section, acting "against the will of the victim" includes acting
94 without the consent of the legal guardian or custodian of a victim who is:
95 (a) a mentally incompetent person[.]; or
96 (b) a minor who is 14 or 15 years of age.
97 [(3)] (4) Unlawful detention is a class B misdemeanor.
98 Section 3. Section 76-5-306 is amended to read:
99 76-5-306. Lesser included offenses.
100 In this part, the following offenses are lesser included offenses of Section 76-5-302 ,
101 aggravated kidnapping:
102 (1) Section 76-5-301 , kidnapping; and
103 (2) Section 76-5-304 , unlawful detention or unlawful detention of a minor.
104 Section 4. Section 77-36-1 is amended to read:
105 77-36-1. Definitions.
106 As used in this chapter:
107 (1) "Cohabitant" has the same meaning as in Section 78B-7-102 .
108 (2) "Department" means the Department of Public Safety.
109 (3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
110 3, Divorce.
111 (4) "Domestic violence" means any criminal offense involving violence or physical
112 harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to
113 commit a criminal offense involving violence or physical harm, when committed by one
114 cohabitant against another. "Domestic violence" also means commission or attempt to commit,
115 any of the following offenses by one cohabitant against another:
116 (a) aggravated assault, as described in Section 76-5-103 ;
117 (b) assault, as described in Section 76-5-102 ;
118 (c) criminal homicide, as described in Section 76-5-201 ;

119 (d) harassment, as described in Section 76-5-106 ;
120 (e) electronic communication harassment, as described in Section 76-9-201 ;
121 (f) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
122 76-5-301 , 76-5-301.1 , and 76-5-302 ;
123 (g) mayhem, as described in Section 76-5-105 ;
124 (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
125 Section 76-5b-201 , Sexual Exploitation of a Minor;
126 (i) stalking, as described in Section 76-5-106.5 ;
127 (j) unlawful detention or unlawful detention of a minor, as described in Section
128 76-5-304 ;
129 (k) violation of a protective order or ex parte protective order, as described in Section
130 76-5-108 ;
131 (l) any offense against property described in Title 76, Chapter 6, Part 1, Property
132 Destruction, Part 2, Burglary and Criminal Trespass, or Part 3, Robbery;
133 (m) possession of a deadly weapon with intent to assault, as described in Section
134 76-10-507 ;
135 (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
136 person, building, or vehicle, as described in Section 76-10-508 ;
137 (o) disorderly conduct, as defined in Section 76-9-102 , if a conviction of disorderly
138 conduct is the result of a plea agreement in which the defendant was originally charged with
139 any of the domestic violence offenses otherwise described in this Subsection (4). Conviction
140 of disorderly conduct as a domestic violence offense, in the manner described in this
141 Subsection (4)(o), does not constitute a misdemeanor crime of domestic violence under 18
142 U.S.C. Section 921, and is exempt from the provisions of the federal Firearms Act, 18 U.S.C.
143 Section 921 et seq.; or
144 (p) child abuse as described in Section 76-5-109.1 .
145 (5) "Jail release agreement" means a written agreement:
146 (a) specifying and limiting the contact a person arrested for a domestic violence offense
147 may have with an alleged victim or other specified individuals; and
148 (b) specifying other conditions of release from jail as required in Subsection 77-36-2.5
149 (2).

150 (6) "Jail release court order" means a written court order:
151 (a) specifying and limiting the contact a person arrested for a domestic violence offense
152 may have with an alleged victim or other specified individuals; and
153 (b) specifying other conditions of release from jail as required in Subsection
154 77-36-2.5 (2).
155 (7) "Marital status" means married and living together, divorced, separated, or not
156 married.
157 (8) "Married and living together" means a man and a woman whose marriage was
158 solemnized under Section 30-1-4 or 30-1-6 and who are living in the same residence.
159 (9) "Not married" means any living arrangement other than married and living together,
160 divorced, or separated.
161 (10) "Pretrial protective order" means a written order:
162 (a) specifying and limiting the contact a person who has been charged with a domestic
163 violence offense may have with an alleged victim or other specified individuals; and
164 (b) specifying other conditions of release pursuant to Subsection 77-36-2.5 (3)(c),
165 Subsection 77-36-2.6 (3), or Section 77-36-2.7 , pending trial in the criminal case.
166 (11) "Sentencing protective order" means a written order of the court as part of
167 sentencing in a domestic violence case that limits the contact a person who has been convicted
168 of a domestic violence offense may have with a victim or other specified individuals pursuant
169 to Sections 77-36-5 and 77-36-5.1 .
170 (12) "Separated" means a man and a woman who have had their marriage solemnized
171 under Section 30-1-4 or 30-1-6 and who are not living in the same residence.
172 (13) "Victim" means a cohabitant who has been subjected to domestic violence.