This document includes Senate Committee Amendments incorporated into the bill on Wed, Feb 21, 2018 at 9:18 AM by estauffer.
Representative Michael K. McKell proposes the following substitute bill:


1     
CRIMINAL CODE AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Michael K. McKell

5     
Senate Sponsor: Todd Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill defines the term "indecent liberties."
10     Highlighted Provisions:
11          This bill:
12          ▸     defines the term "indecent liberties";
13          ▸     amends provisions of Section 78A-6-105 and Section 78B-2-308 to incorporate the
14     definition of "indecent liberties"; and
15          ▸     makes technical changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          78A-6-105, as last amended by Laws of Utah 2017, Chapters 181, 330, and 401
23          78B-2-308, as last amended by Laws of Utah 2016, Chapter 379
24     ENACTS:
25          76-5-416, Utah Code Annotated 1953
26     

27     Be it enacted by the Legislature of the state of Utah:
28          Section 1. Section 76-5-416 is enacted to read:
29          76-5-416. Indecent liberties -- Definition.
30          As used in this part, "indecent liberties" means Ŝ→ conduct as serious as ←Ŝ touching,
30a     over clothing, of the anus,
31     buttocks, or genitals of another individual, or touching, over clothing, of the breast of a female
32     individual.
33          Section 2. Section 78A-6-105 is amended to read:
34          78A-6-105. Definitions.
35          As used in this chapter:
36          (1) (a) "Abuse" means:
37          (i) (A) nonaccidental harm of a child;
38          (B) threatened harm of a child;
39          (C) sexual exploitation;
40          (D) sexual abuse; or
41          (E) human trafficking of a child in violation of Section 76-5-308.5; or
42          (ii) that a child's natural parent:
43          (A) intentionally, knowingly, or recklessly causes the death of another parent of the
44     child;
45          (B) is identified by a law enforcement agency as the primary suspect in an investigation
46     for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
47          (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
48     recklessly causing the death of another parent of the child.
49          (b) "Abuse" does not include:
50          (i) reasonable discipline or management of a child, including withholding privileges;
51          (ii) conduct described in Section 76-2-401; or
52          (iii) the use of reasonable and necessary physical restraint or force on a child:
53          (A) in self-defense;
54          (B) in defense of others;
55          (C) to protect the child; or
56          (D) to remove a weapon in the possession of a child for any of the reasons described in
57     Subsections (1)(b)(iii)(A) through (C).
58          (2) "Abused child" means a child who has been subjected to abuse.
59          (3) "Adjudication" means a finding by the court, incorporated in a decree, that the facts
60     alleged in the petition have been proved. A finding of not competent to proceed pursuant to
61     Section 78A-6-1302 is not an adjudication.
62          (4) "Adult" means [a person] an individual 18 years of age or over, except that [a
63     person] an individual 18 years or over under the continuing jurisdiction of the juvenile court
64     pursuant to Section 78A-6-120 shall be referred to as a minor.
65          (5) "Board" means the Board of Juvenile Court Judges.
66          (6) "Child" means [a person] an individual under 18 years of age.
67          (7) "Child placement agency" means:
68          (a) a private agency licensed to receive a child for placement or adoption under this
69     code; or
70          (b) a private agency that receives a child for placement or adoption in another state,
71     which agency is licensed or approved where such license or approval is required by law.
72          (8) "Clandestine laboratory operation" means the same as that term is defined in
73     Section 58-37d-3.
74          (9) "Commit" means, unless specified otherwise:
75          (a) with respect to a child, to transfer legal custody; and
76          (b) with respect to a minor who is at least 18 years of age, to transfer custody.
77          (10) "Court" means the juvenile court.
78          (11) "Criminogenic risk factors" means evidence-based factors that are associated with
79     a minor's likelihood of reoffending.
80          (12) "Delinquent act" means an act that would constitute a felony or misdemeanor if
81     committed by an adult.
82          (13) "Dependent child" includes a child who is homeless or without proper care
83     through no fault of the child's parent, guardian, or custodian.
84          (14) "Deprivation of custody" means transfer of legal custody by the court from a
85     parent or the parents or a previous legal custodian to another person, agency, or institution.
86          (15) "Detention" means home detention and secure detention as defined in Section
87     62A-7-101 for the temporary care of a minor who requires secure custody in a physically
88     restricting facility:
89          (a) pending court disposition or transfer to another jurisdiction; or
90          (b) while under the continuing jurisdiction of the court.
91          (16) "Detention risk assessment tool" means an evidence-based tool established under
92     Section 78A-6-124, on and after July 1, 2018, that assesses a minor's risk of failing to appear in
93     court or reoffending pre-adjudication and designed to assist in making detention
94     determinations.
95          (17) "Division" means the Division of Child and Family Services.
96          (18) "Evidence-based" means a program or practice that has had multiple randomized
97     control studies or a meta-analysis demonstrating that the program or practice is effective for a
98     specific population or has been rated as effective by a standardized program evaluation tool.
99          (19) "Formal probation" means a minor is under field supervision by the probation
100     department or other agency designated by the court and subject to return to the court in
101     accordance with Section 78A-6-123 on and after July 1, 2018.
102          (20) "Formal referral" means a written report from a peace officer or other person
103     informing the court that a minor is or appears to be within the court's jurisdiction and that a
104     case must be reviewed.
105          (21) "Group rehabilitation therapy" means psychological and social counseling of one
106     or more [persons] individuals in the group, depending upon the recommendation of the
107     therapist.
108          (22) "Guardianship of the person" includes the authority to consent to:
109          (a) marriage;
110          (b) enlistment in the armed forces;
111          (c) major medical, surgical, or psychiatric treatment; or
112          (d) legal custody, if legal custody is not vested in another person, agency, or institution.
113          (23) "Habitual truant" means the same as that term is defined in Section 53A-11-101.
114          (24) "Harm" means:
115          (a) physical or developmental injury or damage;
116          (b) emotional damage that results in a serious impairment in the child's growth,
117     development, behavior, or psychological functioning;
118          (c) sexual abuse; or
119          (d) sexual exploitation.
120          (25) (a) "Incest" means engaging in sexual intercourse with [a person] an individual
121     whom the perpetrator knows to be the perpetrator's ancestor, descendant, brother, sister, uncle,
122     aunt, nephew, niece, or first cousin.
123          (b) The relationships described in Subsection (25)(a) include:
124          (i) blood relationships of the whole or half blood, without regard to legitimacy;
125          (ii) relationships of parent and child by adoption; and
126          (iii) relationships of stepparent and stepchild while the marriage creating the
127     relationship of a stepparent and stepchild exists.
128          (26) "Intake probation" means a period of court monitoring that does not include field
129     supervision, but is overseen by a juvenile probation officer, during which a minor is subject to
130     return to the court in accordance with Section 78A-6-123 on and after July 1, 2018.
131          (27) "Intellectual disability" means:
132          (a) significantly subaverage intellectual functioning, an IQ of approximately 70 or
133     below on an individually administered IQ test, for infants, a clinical judgment of significantly
134     subaverage intellectual functioning;
135          (b) concurrent deficits or impairments in present adaptive functioning, the [person's]
136     individual's effectiveness in meeting the standards expected for the [person's] individual's age
137     by the [person's] individual's cultural group, in at least two of the following areas:
138     communication, self-care, home living, social/interpersonal skills, use of community resources,
139     self-direction, functional academic skills, work, leisure, health, and safety; and
140          (c) the onset is before the [person] individual reaches the age of 18 years.
141          (28) "Legal custody" means a relationship embodying the following rights and duties:
142          (a) the right to physical custody of the minor;
143          (b) the right and duty to protect, train, and discipline the minor;
144          (c) the duty to provide the minor with food, clothing, shelter, education, and ordinary
145     medical care;
146          (d) the right to determine where and with whom the minor shall live; and
147          (e) the right, in an emergency, to authorize surgery or other extraordinary care.
148          (29) "Material loss" means an uninsured:
149          (a) property loss;
150          (b) out-of-pocket monetary loss;
151          (c) lost wages; or
152          (d) medical expenses.
153          (30) "Mental disorder" means a serious emotional and mental disturbance that severely
154     limits a minor's development and welfare over a significant period of time.
155          (31) "Minor" means:
156          (a) a child; or
157          (b) [a person] an individual who is:
158          (i) at least 18 years of age and younger than 21 years of age; and
159          (ii) under the jurisdiction of the juvenile court.
160          (32) "Mobile crisis outreach team" means a crisis intervention service for minors or
161     families of minors experiencing behavioral health or psychiatric emergencies.
162          (33) "Molestation" means that [a person] an individual, with the intent to arouse or
163     gratify the sexual desire of any [person] individual:
164          (a) touches the anus or any part of the genitals of a child;
165          (b) takes indecent liberties, as defined in Section 76-5-416, with a child; or
166          (c) causes a child to take indecent liberties, as defined in Section 76-5-416, with the
167     perpetrator or another individual.
168          (34) "Natural parent" means a minor's biological or adoptive parent, and includes the
169     minor's noncustodial parent.
170          (35) (a) "Neglect" means action or inaction causing:
171          (i) abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe
172     Relinquishment of a Newborn Child;
173          (ii) lack of proper parental care of a child by reason of the fault or habits of the parent,
174     guardian, or custodian;
175          (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
176     subsistence, education, or medical care, or any other care necessary for the child's health,
177     safety, morals, or well-being;
178          (iv) a child to be at risk of being neglected or abused because another child in the same
179     home is neglected or abused; or
180          (v) abandonment of a child through an unregulated custody transfer.
181          (b) The aspect of neglect relating to education, described in Subsection (35)(a)(iii),
182     means that, after receiving a notice of compulsory education violation under Section
183     53A-11-101.5, the parent or guardian fails to make a good faith effort to ensure that the child
184     receives an appropriate education.
185          (c) A parent or guardian legitimately practicing religious beliefs and who, for that
186     reason, does not provide specified medical treatment for a child, is not guilty of neglect.
187          (d) (i) Notwithstanding Subsection (35)(a), a health care decision made for a child by
188     the child's parent or guardian does not constitute neglect unless the state or other party to the
189     proceeding shows, by clear and convincing evidence, that the health care decision is not
190     reasonable and informed.
191          (ii) Nothing in Subsection (35)(d)(i) may prohibit a parent or guardian from exercising
192     the right to obtain a second health care opinion and from pursuing care and treatment pursuant
193     to the second health care opinion, as described in Section 78A-6-301.5.
194          (36) "Neglected child" means a child who has been subjected to neglect.
195          (37) "Nonjudicial adjustment" means closure of the case by the assigned probation
196     officer without judicial determination upon the consent in writing of:
197          (a) the assigned probation officer; and
198          (b) (i) the minor; or
199          (ii) the minor and the minor's parent, legal guardian, or custodian.
200          (38) "Not competent to proceed" means that a minor, due to a mental disorder,
201     intellectual disability, or related condition as defined, lacks the ability to:
202          (a) understand the nature of the proceedings against them or of the potential disposition
203     for the offense charged; or
204          (b) consult with counsel and participate in the proceedings against them with a
205     reasonable degree of rational understanding.
206          (39) "Physical abuse" means abuse that results in physical injury or damage to a child.
207          (40) "Probation" means a legal status created by court order following an adjudication
208     on the ground of a violation of law or under Section 78A-6-103, whereby the minor is
209     permitted to remain in the minor's home under prescribed conditions.
210          (41) "Protective supervision" means a legal status created by court order following an
211     adjudication on the ground of abuse, neglect, or dependency, whereby the minor is permitted to
212     remain in the minor's home, and supervision and assistance to correct the abuse, neglect, or
213     dependency is provided by the probation department or other agency designated by the court.
214          (42) "Related condition" means a condition closely related to intellectual disability in
215     accordance with 42 C.F.R. Part 435.1010 and further defined in Rule R539-1-3, Utah
216     Administrative Code.
217          (43) (a) "Residual parental rights and duties" means those rights and duties remaining
218     with the parent after legal custody or guardianship, or both, have been vested in another person
219     or agency, including:
220          (i) the responsibility for support;
221          (ii) the right to consent to adoption;
222          (iii) the right to determine the child's religious affiliation; and
223          (iv) the right to reasonable parent-time unless restricted by the court.
224          (b) If no guardian has been appointed, "residual parental rights and duties" also include
225     the right to consent to:
226          (i) marriage;
227          (ii) enlistment; and
228          (iii) major medical, surgical, or psychiatric treatment.
229          (44) "Secure facility" means any facility operated by or under contract with the
230     Division of Juvenile Justice Services, that provides 24-hour supervision and confinement for
231     youth offenders committed to the division for custody and rehabilitation pursuant to Subsection
232     78A-6-117(2)(d).
233          (45) "Severe abuse" means abuse that causes or threatens to cause serious harm to a
234     child.
235          (46) "Severe neglect" means neglect that causes or threatens to cause serious harm to a
236     child.
237          (47) "Sexual abuse" means:
238          (a) an act or attempted act of sexual intercourse, sodomy, incest, or molestation by an
239     adult directed towards a child;
240          (b) an act or attempted act of sexual intercourse, sodomy, incest, or molestation
241     committed by a child towards another child if:
242          (i) there is an indication of force or coercion;
243          (ii) the children are related, as described in Subsection (25);
244          (iii) there have been repeated incidents of sexual contact between the two children,
245     unless the children are 14 years of age or older; or
246          (iv) there is a disparity in chronological age of four or more years between the two
247     children; or
248          (c) engaging in any conduct with a child that would constitute an offense under any of
249     the following, regardless of whether the [person] individual who engages in the conduct is
250     actually charged with, or convicted of, the offense:
251          (i) Title 76, Chapter 5, Part 4, Sexual Offenses, except for Section 76-5-401, if the
252     alleged perpetrator of an offense described in Section 76-5-401 is a minor;
253          (ii) child bigamy, Section 76-7-101.5;
254          (iii) incest, Section 76-7-102;
255          (iv) lewdness, Section 76-9-702;
256          (v) sexual battery, Section 76-9-702.1;
257          (vi) lewdness involving a child, Section 76-9-702.5; or
258          (vii) voyeurism, Section 76-9-702.7.
259          (48) "Sexual exploitation" means knowingly:
260          (a) employing, using, persuading, inducing, enticing, or coercing any child to:
261          (i) pose in the nude for the purpose of sexual arousal of any [person] individual; or
262          (ii) engage in any sexual or simulated sexual conduct for the purpose of photographing,
263     filming, recording, or displaying in any way the sexual or simulated sexual conduct;
264          (b) displaying, distributing, possessing for the purpose of distribution, or selling
265     material depicting a child:
266          (i) in the nude, for the purpose of sexual arousal of any [person] individual; or
267          (ii) engaging in sexual or simulated sexual conduct; or
268          (c) engaging in any conduct that would constitute an offense under Section 76-5b-201,
269     sexual exploitation of a minor, regardless of whether the [person] individual who engages in
270     the conduct is actually charged with, or convicted of, the offense.
271          (49) "Shelter" means the temporary care of a child in a physically unrestricted facility
272     pending court disposition or transfer to another jurisdiction.
273          (50) "Status offense" means a violation of the law that would not be a violation but for
274     the age of the offender.
275          (51) "Substance abuse" means the misuse or excessive use of alcohol or other drugs or
276     substances.
277          (52) "Substantiated" means the same as that term is defined in Section 62A-4a-101.
278          (53) "Supported" means the same as that term is defined in Section 62A-4a-101.
279          (54) "Termination of parental rights" means the permanent elimination of all parental
280     rights and duties, including residual parental rights and duties, by court order.
281          (55) "Therapist" means:
282          (a) [a person] an individual employed by a state division or agency for the purpose of
283     conducting psychological treatment and counseling of a minor in its custody; or
284          (b) any other [person] individual licensed or approved by the state for the purpose of
285     conducting psychological treatment and counseling.
286          (56) "Unregulated custody transfer" means the placement of a child:
287          (a) with [a person] an individual who is not the child's parent, step-parent, grandparent,
288     adult sibling, adult uncle or aunt, or legal guardian, or a friend of the family who is an adult and
289     with whom the child is familiar, or a member of the child's federally recognized tribe;
290          (b) with the intent of severing the child's existing parent-child or guardian-child
291     relationship; and
292          (c) without taking:
293          (i) reasonable steps to ensure the safety of the child and permanency of the placement;
294     and
295          (ii) the necessary steps to transfer the legal rights and responsibilities of parenthood or
296     guardianship to the [person] individual taking custody of the child.
297          (57) "Unsubstantiated" means the same as that term is defined in Section 62A-4a-101.
298          (58) "Validated risk and needs assessment" means an evidence-based tool that assesses
299     a minor's risk of reoffending and a minor's criminogenic needs.
300          (59) "Without merit" means the same as that term is defined in Section 62A-4a-101.
301          Section 3. Section 78B-2-308 is amended to read:
302          78B-2-308. Legislative findings -- Civil actions for sexual abuse of a child --
303     Window for revival of time barred claims.
304          (1) The Legislature finds that:
305          (a) child sexual abuse is a crime that hurts the most vulnerable in our society and
306     destroys lives;
307          (b) research over the last 30 years has shown that it takes decades for children and
308     adults to pull their lives back together and find the strength to face what happened to them;
309          (c) often the abuse is compounded by the fact that the perpetrator is a member of the
310     victim's family and when such abuse comes out, the victim is further stymied by the family's
311     wish to avoid public embarrassment;
312          (d) even when the abuse is not committed by a family member, the perpetrator is rarely
313     a stranger and, if in a position of authority, often brings pressure to bear on the victim to ensure
314     silence;
315          (e) in 1992, when the Legislature enacted the statute of limitations requiring victims to
316     sue within four years of majority, society did not understand the long-lasting effects of abuse
317     on the victim and that it takes decades for the healing necessary for a victim to seek redress;
318          (f) the Legislature, as the policy-maker for the state, may take into consideration
319     advances in medical science and understanding in revisiting policies and laws shown to be
320     harmful to the citizens of this state rather than beneficial; and
321          (g) the Legislature has the authority to change old laws in the face of new information,
322     and set new policies within the limits of due process, fairness, and justice.
323          (2) As used in this section:
324          (a) "Child" means [a person] an individual under 18 years of age.
325          (b) "Discovery" means when [a person] a victim knows or reasonably should know that
326     the injury or illness was caused by the intentional or negligent sexual abuse.
327          (c) "Injury or illness" means either a physical injury or illness or a psychological injury
328     or illness. A psychological injury or illness need not be accompanied by physical injury or
329     illness.
330          (d) "Molestation" means that [a person] an individual, with the intent to arouse or
331     gratify the sexual desire of any [person] individual:
332          (i) touches the anus, buttocks, or genitalia of any child, or the breast of a female child;
333          (ii) takes indecent liberties, as defined in Section 76-5-416, with a child; or
334          (iii) causes a child to take indecent liberties, as defined in Section 76-5-416, with the
335     perpetrator or another [person] individual.
336          (e) "Negligently" means a failure to act to prevent the child sexual abuse from further
337     occurring or to report the child sexual abuse to law enforcement when the adult who could act
338     knows or reasonably should know of the child sexual abuse and is the victim's parent,
339     stepparent, adoptive parent, foster parent, legal guardian, ancestor, descendant, brother, sister,
340     uncle, aunt, first cousin, nephew, niece, grandparent, stepgrandparent, or any [person]
341     individual cohabiting in the child's home.
342          (f) "Perpetrator" means an individual who has committed an act of sexual abuse.
343          (g) "Sexual abuse" means acts or attempted acts of sexual intercourse, sodomy, or
344     molestation by an adult directed towards a child.
345          (h) "Victim" means an individual who was intentionally or negligently sexually abused.
346     It does not include individuals whose claims are derived through another individual who was
347     sexually abused.
348          (3) (a) A victim may file a civil action against a perpetrator for intentional or negligent
349     sexual abuse suffered as a child at any time.
350          (b) A victim may file a civil action against a non-perpetrator for intentional or
351     negligent sexual abuse suffered as a child:
352          (i) within four years after the [person] individual attains the age of 18 years; or
353          (ii) if a victim discovers sexual abuse only after attaining the age of 18 years, that
354     [person] individual may bring a civil action for such sexual abuse within four years after
355     discovery of the sexual abuse, whichever period expires later.
356          (4) The victim need not establish which act in a series of continuing sexual abuse
357     incidents caused the injury complained of, but may compute the date of discovery from the date
358     of discovery of the last act by the same perpetrator which is part of a common scheme or plan
359     of sexual abuse.
360          (5) The knowledge of a custodial parent or guardian may not be imputed to [a person]
361     an individual under the age of 18 years.
362          (6) A civil action may be brought only against a living [person] individual who:
363          (a) intentionally perpetrated the sexual abuse;
364          (b) would be criminally responsible for the sexual abuse in accordance with Section
365     76-2-202; or
366          (c) negligently permitted the sexual abuse to occur.
367          (7) A civil action against [a person listed] an individual described in Subsection (6)(a)
368     or (b) for sexual abuse that was time barred as of July 1, 2016, may be brought within 35 years
369     of the victim's 18th birthday, or within three years of the effective date of this Subsection (7),
370     whichever is longer.
371          (8) A civil action may not be brought as provided in Subsection (7) for:
372          (a) any claim that has been litigated to finality on the merits in a court of competent
373     jurisdiction prior to July 1, 2016, however termination of a prior civil action on the basis of the
374     expiration of the statute of limitations does not constitute a claim that has been litigated to
375     finality on the merits; and
376          (b) any claim where a written settlement agreement was entered into between a victim
377     and a defendant or perpetrator, unless the settlement agreement was the result of fraud, duress,
378     or unconscionability. There is a rebuttable presumption that a settlement agreement signed by
379     the victim when the victim was not represented by an attorney admitted to practice law in this
380     state at the time of the settlement was the result of fraud, duress, or unconscionability.