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7 LONG TITLE
8 General Description:
9 This bill makes changes to juvenile sex offenses when both juveniles are under 18 years
10 of age.
11 Highlighted Provisions:
12 This bill:
13 ▸ creates a new provision for unlawful adolescent sexual activity between persons
14 under 18 years of age;
15 ▸ creates penalties; and
16 ▸ makes technical and conforming corrections.
17 Money Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 76-3-406, as last amended by Laws of Utah 2011, Chapter 366
24 76-5-401, as last amended by Laws of Utah 2016, Chapter 372
25 77-2-9, as last amended by Laws of Utah 2009, Chapter 146
26 ENACTS:
27 76-5-401.3, Utah Code Annotated 1953
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29 Be it enacted by the Legislature of the state of Utah:
30 Section 1. Section 76-3-406 is amended to read:
31 76-3-406. Crimes for which probation, suspension of sentence, lower category of
32 offense, or hospitalization may not be granted.
33 (1) Notwithstanding Sections 76-3-201 and 77-18-1 and Title 77, Chapter 16a,
34 Commitment and Treatment of Persons with a Mental Illness, except as provided in Section
35 76-5-406.5, probation [
36 [
37 of offense, and hospitalization [
38 shorten the prison sentence for any person who commits a capital felony or a first degree felony
39 involving:
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45 76-5-402(3)(b), (3)(c), or (4);
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48 76-5-402.2(1)(b), (1)(c), or (2);
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51 76-5-403(4)(b), (4)(c), or (5);
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54 Subsection 76-5-404(2)(b) or (3);
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58 (2) The provisions of this section do not apply if the sentencing court finds that the
59 defendant was under the age of 18 at the time of the offense and could have been adjudicated in
60 the juvenile court but for the delayed reporting or delayed filing of the Information, unless the
61 offenses are before the court pursuant to Section 78a-6-701, 78a-6-702, or 78a-6-703.
62 Section 2. Section 76-5-401 is amended to read:
63 76-5-401. Unlawful sexual activity with a minor -- Elements -- Penalties --
64 Evidence of age raised by defendant.
65 (1) For purposes of this section "minor" is a person who is 14 years of age or older, but
66 younger than 16 years of age, at the time the sexual activity described in this section occurred.
67 (2) A person 18 years of age or older commits unlawful sexual activity with a minor if,
68 under circumstances not amounting to rape, in violation of Section 76-5-402, object rape, in
69 violation of Section 76-5-402.2, forcible sodomy, in violation of Section 76-5-403, or
70 aggravated sexual assault, in violation of Section 76-5-405, the actor:
71 (a) has sexual intercourse with the minor;
72 (b) engages in any sexual act with the minor involving the genitals of one person and
73 the mouth or anus of another person, regardless of the sex of either participant; or
74 (c) causes the penetration, however slight, of the genital or anal opening of the minor
75 by any foreign object, substance, instrument, or device, including a part of the human body,
76 with the intent to cause substantial emotional or bodily pain to any person or with the intent to
77 arouse or gratify the sexual desire of any person, regardless of the sex of any participant.
78 (3) (a) Except under Subsection (3)(b), a violation of Subsection (2) is a third degree
79 felony.
80 (b) If the defendant establishes by a preponderance of the evidence the mitigating
81 factor that the defendant is less than four years older than the minor at the time the sexual
82 activity occurred, the offense is a class B misdemeanor. An offense under this Subsection
83 (3)(b) is not subject to registration under Subsection 77-41-102(17)(a)(iii).
84 Section 3. Section 76-5-401.3 is enacted to read:
85 76-5-401.3. Unlawful adolescent sexual activity.
86 (1) As used in this section:
87 (a) "Adolescent" means a person in the transitional phase of human physical and
88 psychological growth and development between childhood and adulthood who is 12 years of
89 age or older, but under 18 years of age.
90 (b) "Unlawful adolescent sexual activity" means sexual activity between adolescents
91 under circumstances not amounting to:
92 (i) rape, in violation of Section 76-5-402;
93 (ii) rape of a child, in violation of 76-5-402.1;
94 (iii) object rape, in violation of Section 76-5-402.2;
95 (iv) object rape of a child, in violation of Section 76-5-402.3;
96 (v) forcible sodomy, in violation of Section 76-5-403;
97 (vi) sodomy on a child, in violation of Section 76-5-403.1;
98 (vi) aggravated sexual assault, in violation of Section 76-5-405;
99 (vii) sexual abuse of a child, in violation of Section 76-5-404; or
100 (viii) incest, in violation of Section 76-7-102.
101 (2) Unlawful adolescent sexual activity is punishable as a:
102 (a) third degree felony if an adolescent who is 17 years of age engages in unlawful
103 adolescent sexual activity with an adolescent who is 12 or 13 years of age;
104 (b) third degree felony if an adolescent who is 16 years of age engages in unlawful
105 adolescent sexual activity with an adolescent who is 12 years of age;
106 (c) class A misdemeanor if an adolescent who is 16 years of age engages in unlawful
107 adolescent sexual activity with an adolescent who is 13 years of age;
108 (d) class A misdemeanor if an adolescent who is 14 or 15 years of age engages in
109 unlawful adolescent sexual activity with an adolescent who is 12 years of age;
110 (e) class B misdemeanor if an adolescent who is 17 years of age engages in unlawful
111 adolescent sexual activity with an adolescent who is 14 years of age;
112 (f) class B misdemeanor if an adolescent who is 15 years of age engages in unlawful
113 adolescent sexual activity with an adolescent who is 13 years of age;
114 (g) class C misdemeanor if an adolescent who is 12 or 13 years of age engages in
115 unlawful adolescent sexual activity with an adolescent who is 12 or 13 years of age; and
116 (h) class C misdemeanor if an adolescent who is 14 years of age engages in unlawful
117 adolescent sexual activity with an adolescent who is 13 years of age.
118 (3) Offenses under this section are not eligible for nonjudicial adjustment under
119 Section 78A-6-602 or referral to youth court under Section 78A-6-1203.
120 (4) Unless the offenses are before the court pursuant to Section 78A-6-701, 78A-6-702,
121 or 78A-6-703, the district court may enter any sentence or combination of sentences which
122 would have been available in juvenile court but for the delayed reporting or delayed filing of
123 the information in district court.
124 (5) An offense under this section is not subject to registration under Subsection
125 77-41-102(17).
126 Section 4. Section 77-2-9 is amended to read:
127 77-2-9. Offenses ineligible for diversion.
128 (1) Except as provided in Subsection (2), diversion may not be granted by a magistrate
129 for:
130 (a) a capital felony;
131 (b) a felony in the first degree;
132 (c) any case involving a sexual offense against a victim who is under the age of 14;
133 (d) any motor vehicle related offense involving alcohol or drugs;
134 (e) any case involving using a motor vehicle in the commission of a felony;
135 (f) driving a motor vehicle or commercial motor vehicle on a revoked or suspended
136 license;
137 (g) any case involving operating a commercial motor vehicle in a negligent manner
138 causing the death of another including the offenses of:
139 (i) manslaughter under Section 76-5-205; or
140 (ii) negligent homicide under Section 76-5-206; or
141 (h) a crime of domestic violence as defined in Section 77-36-1.
142 (2) When a person [
143 Title 76, Chapter 5, Part 4, Sexual Offenses, while under the age of 16, the court may enter a
144 diversion in the matter if the court enters on the record its findings that:
145 (a) the offenses could have been adjudicated in juvenile court but for the delayed
146 reporting or delayed filing of the information in district court, unless the offenses are before the
147 court pursuant to Section 78A-6-701, 78A-6-702, or 78A-6-703;
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150 participants; and
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