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7 LONG TITLE
8 General Description:
9 This bill modifies sexual offenses in the Utah Code.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines "takes indecent liberties" in certain sexual offenses;
13 ▸ modifies certain sexual offenses; and
14 ▸ makes technical changes.
15 Money Appropriated in this Bill:
16 None
17 Other Special Clauses:
18 None
19 Utah Code Sections Affected:
20 AMENDS:
21 76-5-401.1, as last amended by Laws of Utah 2016, Chapter 372
22 76-5-401.2, as last amended by Laws of Utah 2014, Chapter 135
23 76-5-404, as last amended by Laws of Utah 2010, Chapter 218
24 76-5-404.1, as last amended by Laws of Utah 2014, Chapters 135 and 141
25 76-5-412, as last amended by Laws of Utah 2017, Chapter 65
26 76-5-413, as last amended by Laws of Utah 2017, Chapter 330
27 76-9-702, as last amended by Laws of Utah 2015, Chapter 210
28 78A-6-105, as last amended by Laws of Utah 2017, Chapters 181, 330, and 401
29 78B-2-308, as last amended by Laws of Utah 2016, Chapter 379
30 ENACTS:
31 76-5-416, Utah Code Annotated 1953
32
33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 76-5-401.1 is amended to read:
35 76-5-401.1. Sexual abuse of a minor.
36 (1) For purposes of this section "minor" is [
37 age or older, but younger than 16 years of age, at the time the sexual activity described in this
38 section occurred.
39 (2) [
40 individual is four years or more older than the minor or holds a relationship of special trust as
41 an adult teacher, employee, or volunteer, as described in Subsection 76-5-404.1(1)(c)(xix) and,
42 under circumstances not amounting to rape, in violation of Section 76-5-402, object rape, in
43 violation of Section 76-5-402.2, forcible sodomy, in violation of Section 76-5-403, aggravated
44 sexual assault, in violation of Section 76-5-405, unlawful sexual activity with a minor, in
45 violation of Section 76-5-401, or an attempt to commit any of those offenses, the [
46 individual touches the anus, buttocks, pubic area, or any part of the genitals of the minor, or
47 touches the breast of a female minor, or otherwise takes indecent liberties with the minor, [
48
49 cause substantial emotional or bodily pain to any [
50 arouse or gratify the sexual desire of any [
51 participant.
52 (3) (a) Except under Subsection (3)(b), a violation of this section is a class A
53 misdemeanor and is not subject to registration under Subsection 77-41-102(17)(a)(iv) on a first
54 offense if the offender was younger than 21 years of age at the time of the offense.
55 (b) A violation of this section is a third degree felony if the actor at the time of the
56 commission of the offense:
57 (i) is 18 years of age or older;
58 (ii) held a position of special trust as a teacher or a volunteer at a school, as that
59 position is defined in Subsection 76-5-404.1(1)(c)(xix); and
60 (iii) committed the offense against an individual who at the time of the offense was
61 enrolled as a student at the school where the actor was employed or was acting as a volunteer.
62 Section 2. Section 76-5-401.2 is amended to read:
63 76-5-401.2. Unlawful sexual conduct with a 16- or 17-year-old.
64 (1) As used in this section, "minor" means [
65 age or older, but younger than 18 years of age, at the time the sexual conduct described in
66 Subsection (2) occurred.
67 (2) (a) [
68 under circumstances not amounting to an offense listed under Subsection (3), [
69 individual who is:
70 (i) seven or more years older but less than 10 years older than the minor at the time of
71 the sexual conduct engages in any conduct listed in Subsection (2)(b), and the [
72 individual knew or reasonably should have known the age of the minor;
73 (ii) 10 or more years older than the minor at the time of the sexual conduct and engages
74 in any conduct listed in Subsection (2)(b); or
75 (iii) holds a relationship of special trust as an adult teacher, employee, or volunteer, as
76 described in Subsection 76-5-404.1(1)(c)(xix).
77 (b) As used in Subsection (2)(a), "sexual conduct" refers to when the [
78 individual:
79 (i) has sexual intercourse with the minor;
80 (ii) engages in any sexual act with the minor involving the genitals of one [
81 individual and the mouth or anus of another [
82 participant;
83 (iii) causes the penetration, however slight, of the genital or anal opening of the minor
84 by any foreign object, substance, instrument, or device, including a part of the human body,
85 with the intent to cause substantial emotional or bodily pain to any [
86 the intent to arouse or gratify the sexual desire of any [
87 of any participant; or
88 (iv) touches the anus, buttocks, pubic area, or any part of the genitals of the minor, or
89 touches the breast of a female minor, or otherwise takes indecent liberties with the minor, [
90
91 cause substantial emotional or bodily pain to any [
92 arouse or gratify the sexual desire of any [
93 participant.
94 (3) The offenses referred to in Subsection (2) are:
95 (a) (i) rape, in violation of Section 76-5-402;
96 (ii) object rape, in violation of Section 76-5-402.2;
97 (iii) forcible sodomy, in violation of Section 76-5-403;
98 (iv) forcible sexual abuse, in violation of Section 76-5-404; or
99 (v) aggravated sexual assault, in violation of Section 76-5-405; or
100 (b) an attempt to commit any offense under Subsection (3)(a).
101 (4) A violation of Subsection (2)(b)(i), (ii), or (iii) is a third degree felony.
102 (5) (a) A violation of Subsection (2)(b)(iv) is a class A misdemeanor, except under
103 Subsection (5)(b).
104 (b) A violation of Subsection (2)(b)(iv) is a third degree felony if the actor at the time
105 of the commission of the offense:
106 (i) is 18 years of age or older;
107 (ii) held a position of special trust as a teacher or a volunteer at a school, as that
108 position is defined in Subsection 76-5-404.1(1)(c)(xix); and
109 (iii) committed the offense against an individual who at the time of the offense was
110 enrolled as a student at the school where the actor was employed or was acting as a volunteer.
111 Section 3. Section 76-5-404 is amended to read:
112 76-5-404. Forcible sexual abuse.
113 (1) [
114 age or older and, under circumstances not amounting to rape, object rape, sodomy, or attempted
115 rape or sodomy, the actor touches the anus, buttocks, pubic area, or any part of the genitals of
116 another, or touches the breast of a female, or otherwise takes indecent liberties with another,
117 [
118 substantial emotional or bodily pain to any [
119 gratify the sexual desire of any [
120 of the sex of any participant.
121 (2) Forcible sexual abuse is:
122 (a) except as provided in Subsection (2)(b), a felony of the second degree, punishable
123 by a term of imprisonment of not less than one year nor more than 15 years; or
124 (b) except as provided in Subsection (3), a felony of the first degree, punishable by a
125 term of imprisonment for 15 years and which may be for life, if the trier of fact finds that
126 during the course of the commission of the forcible sexual abuse the defendant caused serious
127 bodily injury to another.
128 (3) If, when imposing a sentence under Subsection (2)(b), a court finds that a lesser
129 term than the term described in Subsection (2)(b) is in the interests of justice and states the
130 reasons for this finding on the record, the court may impose a term of imprisonment of not less
131 than:
132 (a) 10 years and which may be for life; or
133 (b) six years and which may be for life.
134 (4) Imprisonment under Subsection (2)(b) or (3) is mandatory in accordance with
135 Section 76-3-406.
136 Section 4. Section 76-5-404.1 is amended to read:
137 76-5-404.1. Sexual abuse of a child -- Aggravated sexual abuse of a child.
138 (1) As used in this section:
139 (a) "Adult" means an individual 18 years of age or older.
140 (b) "Child" means an individual under the age of 14.
141 (c) "Position of special trust" means:
142 (i) an adoptive parent;
143 (ii) an athletic manager who is an adult;
144 (iii) an aunt;
145 (iv) a babysitter;
146 (v) a coach;
147 (vi) a cohabitant of a parent if the cohabitant is an adult;
148 (vii) a counselor;
149 (viii) a doctor or physician;
150 (ix) an employer;
151 (x) a foster parent;
152 (xi) a grandparent;
153 (xii) a legal guardian;
154 (xiii) a natural parent;
155 (xiv) a recreational leader who is an adult;
156 (xv) a religious leader;
157 (xvi) a sibling or a stepsibling who is an adult;
158 (xvii) a scout leader who is an adult;
159 (xviii) a stepparent;
160 (xix) a teacher or any other [
161 or private elementary school or secondary school, and who is 18 years of age or older;
162 (xx) an uncle;
163 (xxi) a youth leader who is an adult; or
164 (xxii) any [
165 individuals listed in Subsections (1)(c)(i) through (xxi), which enables the [
166 to exercise undue influence over the child.
167 (2) [
168 not amounting to rape of a child, object rape of a child, sodomy on a child, or an attempt to
169 commit any of these offenses, the actor touches the anus, buttocks, pubic area, or genitalia of
170 any child, the breast of a female child, or otherwise takes indecent liberties with a child, [
171
172 substantial emotional or bodily pain to any [
173 gratify the sexual desire of any [
174 (3) Sexual abuse of a child is a second degree felony.
175 (4) [
176 conjunction with the offense described in Subsection (2) any of the following circumstances
177 have been charged and admitted or found true in the action for the offense:
178 (a) the offense was committed by the use of a dangerous weapon as defined in Section
179 76-1-601, or by force, duress, violence, intimidation, coercion, menace, or threat of harm, or
180 was committed during the course of a kidnapping;
181 (b) the accused caused bodily injury or severe psychological injury to the victim during
182 or as a result of the offense;
183 (c) the accused was a stranger to the victim or made friends with the victim for the
184 purpose of committing the offense;
185 (d) the accused used, showed, or displayed pornography or caused the victim to be
186 photographed in a lewd condition during the course of the offense;
187 (e) the accused, prior to sentencing for this offense, was previously convicted of any
188 sexual offense;
189 (f) the accused committed the same or similar sexual act upon two or more victims at
190 the same time or during the same course of conduct;
191 (g) the accused committed, in Utah or elsewhere, more than five separate acts, which if
192 committed in Utah would constitute an offense described in this chapter, and were committed
193 at the same time, or during the same course of conduct, or before or after the instant offense;
194 (h) the offense was committed by [
195 special trust in relation to the victim;
196 (i) the accused encouraged, aided, allowed, or benefitted from acts of prostitution or
197 sexual acts by the victim with any other [
198 victim before any other [
199 (j) the accused caused the penetration, however slight, of the genital or anal opening of
200 the child by any part or parts of the human body other than the genitals or mouth.
201 (5) Aggravated sexual abuse of a child is a first degree felony punishable by a term of
202 imprisonment of:
203 (a) except as provided in Subsection (5)(b), (5)(c), or (6), not less than 15 years and
204 which may be for life;
205 (b) except as provided in Subsection (5)(c) or (6), life without parole, if the trier of fact
206 finds that during the course of the commission of the aggravated sexual abuse of a child the
207 defendant caused serious bodily injury to another; or
208 (c) life without parole, if the trier of fact finds that at the time of the commission of the
209 aggravated sexual abuse of a child, the defendant was previously convicted of a grievous
210 sexual offense.
211 (6) If, when imposing a sentence under Subsection (5)(a) or (b), a court finds that a
212 lesser term than the term described in Subsection (5)(a) or (b) is in the interests of justice and
213 states the reasons for this finding on the record, the court may impose a term of imprisonment
214 of not less than:
215 (a) for purposes of Subsection (5)(b), 15 years and which may be for life; or
216 (b) for purposes of Subsection (5)(a) or (b):
217 (i) 10 years and which may be for life; or
218 (ii) six years and which may be for life.
219 (7) The provisions of Subsection (6) do not apply when [
220 sentenced under Subsection (5)(c).
221 (8) Subsections (5)(b) and (5)(c) do not apply if the defendant was younger than 18
222 years of age at the time of the offense.
223 (9) Imprisonment under this section is mandatory in accordance with Section 76-3-406.
224 Section 5. Section 76-5-412 is amended to read:
225 76-5-412. Custodial sexual relations -- Custodial sexual misconduct -- Definitions
226 -- Penalties -- Defenses.
227 (1) As used in this section:
228 (a) "Actor" means:
229 (i) a correctional officer, as defined in Section 53-13-104;
230 (ii) a special function officer, as defined in Section 53-13-105;
231 (iii) a law enforcement officer, as defined in Section 53-13-103; or
232 (iv) an employee of, or private provider or contractor for, the Department of
233 Corrections or a county jail.
234 (b) "Person in custody" means [
235 or older, or a minor younger than 18 years of age, who is:
236 (i) a prisoner, as defined in Section 76-5-101, and includes a prisoner who is in the
237 custody of the Department of Corrections created under Section 64-13-2, but who is being
238 housed at the Utah State Hospital established under Section 62A-15-601 or other medical
239 facility;
240 (ii) under correctional supervision, such as at a work release facility or as a parolee or
241 probationer; or
242 (iii) under lawful or unlawful arrest, either with or without a warrant.
243 (c) "Private provider or contractor" means any person or entity that contracts with the
244 Department of Corrections or with a county jail to provide services or functions that are part of
245 the operation of the Department of Corrections or a county jail under state or local law.
246 (2) (a) An actor commits custodial sexual relations if the actor commits any of the acts
247 under Subsection (3):
248 (i) under circumstances not amounting to commission of, or an attempt to commit, an
249 offense under Subsection (6); and
250 (ii) (A) the actor knows that the individual is a person in custody; or
251 (B) a reasonable person in the actor's position should have known under the
252 circumstances that the individual was a person in custody.
253 (b) A violation of Subsection (2)(a) is a third degree felony, but if the person in custody
254 is younger than 18 years of age, a violation of Subsection (2)(a) is a second degree felony.
255 (c) If the act committed under this Subsection (2) amounts to an offense subject to a
256 greater penalty under another provision of state law than is provided under this Subsection (2),
257 this Subsection (2) does not prohibit prosecution and sentencing for the more serious offense.
258 (3) Acts referred to in Subsection (2)(a) are:
259 (a) having sexual intercourse with a person in custody;
260 (b) engaging in any sexual act with a person in custody involving the genitals of one
261 [
262 of either participant; or
263 (c) causing the penetration, however slight, of the genital or anal opening of a person in
264 custody by any foreign object, substance, instrument, or device, including a part of the human
265 body, with the intent to cause substantial emotional or bodily pain to any [
266 regardless of the sex of any participant.
267 (4) (a) An actor commits custodial sexual misconduct if the actor commits any of the
268 acts under Subsection (5):
269 (i) under circumstances not amounting to commission of, or an attempt to commit, an
270 offense under Subsection (6); and
271 (ii) (A) the actor knows that the individual is a person in custody; or
272 (B) a reasonable person in the actor's position should have known under the
273 circumstances that the individual was a person in custody.
274 (b) A violation of Subsection (4)(a) is a class A misdemeanor, but if the person in
275 custody is younger than 18 years of age, a violation of Subsection (4)(a) is a third degree
276 felony.
277 (c) If the act committed under this Subsection (4) amounts to an offense subject to a
278 greater penalty under another provision of state law than is provided under this Subsection (4),
279 this Subsection (4) does not prohibit prosecution and sentencing for the more serious offense.
280 (5) Acts referred to in Subsection (4)(a) are the following acts when committed with
281 the intent to cause substantial emotional or bodily pain to any [
282 intent to arouse or gratify the sexual desire of any [
283 any participant:
284 (a) touching the anus, buttocks, pubic area, or any part of the genitals of a person in
285 custody;
286 (b) touching the breast of a female person in custody; or
287 (c) otherwise taking indecent liberties with a person in custody[
288 [
289
290 (6) The offenses referred to in Subsections (2)(a)(i) and (4)(a)(i) are:
291 (a) Section 76-5-401, unlawful sexual activity with a minor;
292 (b) Section 76-5-402, rape;
293 (c) Section 76-5-402.1, rape of a child;
294 (d) Section 76-5-402.2, object rape;
295 (e) Section 76-5-402.3, object rape of a child;
296 (f) Section 76-5-403, forcible sodomy;
297 (g) Section 76-5-403.1, sodomy on a child;
298 (h) Section 76-5-404, forcible sexual abuse;
299 (i) Section 76-5-404.1, sexual abuse of a child or aggravated sexual abuse of a child; or
300 (j) Section 76-5-405, aggravated sexual assault.
301 (7) (a) It is not a defense to the commission of the offense of custodial sexual relations
302 under Subsection (2) or custodial sexual misconduct under Subsection (4), or an attempt to
303 commit either of these offenses, if the person in custody is younger than 18 years of age, that
304 the actor:
305 (i) mistakenly believed the person in custody to be 18 years of age or older at the time
306 of the alleged offense; or
307 (ii) was unaware of the true age of the person in custody.
308 (b) Consent of the person in custody is not a defense to any violation or attempted
309 violation of Subsection (2) or (4).
310 (8) It is a defense that the commission by the actor of an act under Subsection (2) or (4)
311 is the result of compulsion, as the defense is described in Subsection 76-2-302(1).
312 Section 6. Section 76-5-413 is amended to read:
313 76-5-413. Custodial sexual relations or misconduct with youth receiving state
314 services -- Definitions -- Penalties -- Defenses.
315 (1) As used in this section:
316 (a) "Actor" means:
317 (i) [
318 in Section 62A-1-102, or an employee of a private provider or contractor; or
319 (ii) [
320 of a private provider or contractor.
321 (b) "Department" means the Department of Human Services created in Section
322 62A-1-102.
323 (c) "Juvenile court" means the juvenile court of the state created in Section 78A-6-102.
324 (d) "Private provider or contractor" means any [
325 contracts with the:
326 (i) department to provide services or functions that are part of the operation of the
327 department; or
328 (ii) juvenile court to provide services or functions that are part of the operation of the
329 juvenile court.
330 (e) "Youth receiving state services" means [
331 (i) younger than 18 years of age, except as provided under Subsection (1)(e)(ii), who is:
332 (A) in the custody of the department under Subsection 78A-6-117(2)(c); or
333 (B) receiving services from any division of the department if any portion of the costs of
334 these services is covered by public money as defined in Section 76-8-401; or
335 (ii) younger than 21 years of age who is:
336 (A) in the custody of the Division of Juvenile Justice Services, or the Division of Child
337 and Family Services; or
338 (B) under the jurisdiction of the juvenile court.
339 (2) (a) An actor commits custodial sexual relations with a youth receiving state
340 services if the actor commits any of the acts under Subsection (3):
341 (i) under circumstances not amounting to commission of, or an attempt to commit, an
342 offense under Subsection (6); and
343 (ii) (A) the actor knows that the individual is a youth receiving state services; or
344 (B) a reasonable person in the actor's position should have known under the
345 circumstances that the individual was a youth receiving state services.
346 (b) A violation of Subsection (2)(a) is a third degree felony, but if the youth receiving
347 state services is younger than 18 years of age, a violation of Subsection (2)(a) is a second
348 degree felony.
349 (c) If the act committed under this Subsection (2) amounts to an offense subject to a
350 greater penalty under another provision of state law than is provided under this Subsection (2),
351 this Subsection (2) does not prohibit prosecution and sentencing for the more serious offense.
352 (3) Acts referred to in Subsection (2)(a) are:
353 (a) having sexual intercourse with a youth receiving state services;
354 (b) engaging in any sexual act with a youth receiving state services involving the
355 genitals of one [
356 regardless of the sex of either participant; or
357 (c) causing the penetration, however slight, of the genital or anal opening of a youth
358 receiving state services by any foreign object, substance, instrument, or device, including a part
359 of the human body, with the intent to cause substantial emotional or bodily pain to any [
360 individual, regardless of the sex of any participant or with the intent to arouse or gratify the
361 sexual desire of any [
362 (4) (a) An actor commits custodial sexual misconduct with a youth receiving state
363 services if the actor commits any of the acts under Subsection (5):
364 (i) under circumstances not amounting to commission of, or an attempt to commit, an
365 offense under Subsection (6); and
366 (ii) (A) the actor knows that the individual is a youth receiving state services; or
367 (B) a reasonable person in the actor's position should have known under the
368 circumstances that the individual was a youth receiving state services.
369 (b) A violation of Subsection (4)(a) is a class A misdemeanor, but if the youth
370 receiving state services is younger than 18 years of age, a violation of Subsection (4)(a) is a
371 third degree felony.
372 (c) If the act committed under this Subsection (4) amounts to an offense subject to a
373 greater penalty under another provision of state law than is provided under this Subsection (4),
374 this Subsection (4) does not prohibit prosecution and sentencing for the more serious offense.
375 (5) Acts referred to in Subsection (4)(a) are the following acts when committed with
376 the intent to cause substantial emotional or bodily pain to any [
377 intent to arouse or gratify the sexual desire of any [
378 any participant:
379 (a) touching the anus, buttocks, pubic area, or any part of the genitals of a youth
380 receiving state services;
381 (b) touching the breast of a female youth receiving state services; or
382 (c) otherwise taking indecent liberties with a youth receiving state services[
383 [
384
385 (6) The offenses referred to in Subsections (2)(a)(i) and (4)(a)(i) are:
386 (a) Section 76-5-401, unlawful sexual activity with a minor;
387 (b) Section 76-5-402, rape;
388 (c) Section 76-5-402.1, rape of a child;
389 (d) Section 76-5-402.2, object rape;
390 (e) Section 76-5-402.3, object rape of a child;
391 (f) Section 76-5-403, forcible sodomy;
392 (g) Section 76-5-403.1, sodomy on a child;
393 (h) Section 76-5-404, forcible sexual abuse;
394 (i) Section 76-5-404.1, sexual abuse of a child or aggravated sexual abuse of a child; or
395 (j) Section 76-5-405, aggravated sexual assault.
396 (7) (a) It is not a defense to the commission of the offense of custodial sexual relations
397 with a youth receiving state services under Subsection (2) or custodial sexual misconduct with
398 a youth receiving state services under Subsection (4), or an attempt to commit either of these
399 offenses, if the youth receiving state services is younger than 18 years of age, that the actor:
400 (i) mistakenly believed the youth receiving state services to be 18 years of age or older
401 at the time of the alleged offense; or
402 (ii) was unaware of the true age of the youth receiving state services.
403 (b) Consent of the youth receiving state services is not a defense to any violation or
404 attempted violation of Subsection (2) or (4).
405 (8) It is a defense that the commission by the actor of an act under Subsection (2) or (4)
406 is the result of compulsion, as the defense is described in Subsection 76-2-302(1).
407 Section 7. Section 76-5-416 is enacted to read:
408 76-5-416. Indecent liberties -- Definition.
409 As used in this part, "takes indecent liberties" means:
410 (1) touching the actor's genitals, anus, buttocks, pubic area, or female breast against
411 any part of the body of the victim;
412 (2) causing the victim to touch the actor's or another's genitals, pubic area, anus,
413 buttocks, or female breast;
414 (3) simulating or pretending to engage in sexual intercourse with the victim, including
415 genital-genital, oral-genital, anal-genital, or oral-anal intercourse; or
416 (4) causing the victim to simulate or pretend to engage in sexual intercourse with the
417 actor or another, including genital-genital, oral-genital, anal-genital, or oral-anal intercourse.
418 Section 8. Section 76-9-702 is amended to read:
419 76-9-702. Lewdness.
420 (1) A person is guilty of lewdness if the person under circumstances not amounting to
421 rape, object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault, sexual
422 abuse of a minor, unlawful sexual conduct with a 16- or 17-year-old, custodial sexual relations
423 or misconduct under Section 76-5-412 or 76-5-413, or an attempt to commit any of these
424 offenses, performs any of the following acts in a public place or under circumstances which the
425 person should know will likely cause affront or alarm to, on, or in the presence of another who
426 is 14 years of age or older:
427 (a) an act of sexual intercourse or sodomy;
428 (b) exposes his or her genitals, the female breast below the top of the areola, the
429 buttocks, the anus, or the pubic area;
430 (c) masturbates; or
431 (d) any other act of lewdness.
432 (2) (a) A person convicted the first or second time of a violation of Subsection (1) is
433 guilty of a class B misdemeanor, except under Subsection (2)(b).
434 (b) A person convicted of a violation of Subsection (1) is guilty of a third degree felony
435 if at the time of the violation:
436 (i) the person is a sex offender as defined in Section 77-27-21.7;
437 (ii) the person has been previously convicted two or more times of violating Subsection
438 (1); or
439 (iii) the person has previously been convicted of a violation of Subsection (1) and has
440 also previously been convicted of a violation of Section 76-9-702.5.
441 (c) (i) For purposes of this Subsection (2) and Subsection 77-41-102(17), a plea of
442 guilty or nolo contendere to a charge under this section that is held in abeyance under Title 77,
443 Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction.
444 (ii) This Subsection (2)(c) also applies if the charge under this Subsection (2) has been
445 subsequently reduced or dismissed in accordance with the plea in abeyance agreement.
446 (3) A woman's breast feeding, including breast feeding in any location where the
447 woman otherwise may rightfully be, does not under any circumstance constitute a lewd act,
448 irrespective of whether or not the breast is covered during or incidental to feeding.
449 Section 9. Section 78A-6-105 is amended to read:
450 78A-6-105. Definitions.
451 As used in this chapter:
452 (1) (a) "Abuse" means:
453 (i) (A) nonaccidental harm of a child;
454 (B) threatened harm of a child;
455 (C) sexual exploitation;
456 (D) sexual abuse; or
457 (E) human trafficking of a child in violation of Section 76-5-308.5; or
458 (ii) that a child's natural parent:
459 (A) intentionally, knowingly, or recklessly causes the death of another parent of the
460 child;
461 (B) is identified by a law enforcement agency as the primary suspect in an investigation
462 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
463 (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
464 recklessly causing the death of another parent of the child.
465 (b) "Abuse" does not include:
466 (i) reasonable discipline or management of a child, including withholding privileges;
467 (ii) conduct described in Section 76-2-401; or
468 (iii) the use of reasonable and necessary physical restraint or force on a child:
469 (A) in self-defense;
470 (B) in defense of others;
471 (C) to protect the child; or
472 (D) to remove a weapon in the possession of a child for any of the reasons described in
473 Subsections (1)(b)(iii)(A) through (C).
474 (2) "Abused child" means a child who has been subjected to abuse.
475 (3) "Adjudication" means a finding by the court, incorporated in a decree, that the facts
476 alleged in the petition have been proved. A finding of not competent to proceed pursuant to
477 Section 78A-6-1302 is not an adjudication.
478 (4) "Adult" means [
479
480 pursuant to Section 78A-6-120 shall be referred to as a minor.
481 (5) "Board" means the Board of Juvenile Court Judges.
482 (6) "Child" means [
483 (7) "Child placement agency" means:
484 (a) a private agency licensed to receive a child for placement or adoption under this
485 code; or
486 (b) a private agency that receives a child for placement or adoption in another state,
487 which agency is licensed or approved where such license or approval is required by law.
488 (8) "Clandestine laboratory operation" means the same as that term is defined in
489 Section 58-37d-3.
490 (9) "Commit" means, unless specified otherwise:
491 (a) with respect to a child, to transfer legal custody; and
492 (b) with respect to a minor who is at least 18 years of age, to transfer custody.
493 (10) "Court" means the juvenile court.
494 (11) "Criminogenic risk factors" means evidence-based factors that are associated with
495 a minor's likelihood of reoffending.
496 (12) "Delinquent act" means an act that would constitute a felony or misdemeanor if
497 committed by an adult.
498 (13) "Dependent child" includes a child who is homeless or without proper care
499 through no fault of the child's parent, guardian, or custodian.
500 (14) "Deprivation of custody" means transfer of legal custody by the court from a
501 parent or the parents or a previous legal custodian to another person, agency, or institution.
502 (15) "Detention" means home detention and secure detention as defined in Section
503 62A-7-101 for the temporary care of a minor who requires secure custody in a physically
504 restricting facility:
505 (a) pending court disposition or transfer to another jurisdiction; or
506 (b) while under the continuing jurisdiction of the court.
507 (16) "Detention risk assessment tool" means an evidence-based tool established under
508 Section 78A-6-124, on and after July 1, 2018, that assesses a minor's risk of failing to appear in
509 court or reoffending pre-adjudication and designed to assist in making detention
510 determinations.
511 (17) "Division" means the Division of Child and Family Services.
512 (18) "Evidence-based" means a program or practice that has had multiple randomized
513 control studies or a meta-analysis demonstrating that the program or practice is effective for a
514 specific population or has been rated as effective by a standardized program evaluation tool.
515 (19) "Formal probation" means a minor is under field supervision by the probation
516 department or other agency designated by the court and subject to return to the court in
517 accordance with Section 78A-6-123 on and after July 1, 2018.
518 (20) "Formal referral" means a written report from a peace officer or other person
519 informing the court that a minor is or appears to be within the court's jurisdiction and that a
520 case must be reviewed.
521 (21) "Group rehabilitation therapy" means psychological and social counseling of one
522 or more [
523 therapist.
524 (22) "Guardianship of the person" includes the authority to consent to:
525 (a) marriage;
526 (b) enlistment in the armed forces;
527 (c) major medical, surgical, or psychiatric treatment; or
528 (d) legal custody, if legal custody is not vested in another person, agency, or institution.
529 (23) "Habitual truant" means the same as that term is defined in Section 53A-11-101.
530 (24) "Harm" means:
531 (a) physical or developmental injury or damage;
532 (b) emotional damage that results in a serious impairment in the child's growth,
533 development, behavior, or psychological functioning;
534 (c) sexual abuse; or
535 (d) sexual exploitation.
536 (25) (a) "Incest" means engaging in sexual intercourse with [
537 whom the perpetrator knows to be the perpetrator's ancestor, descendant, brother, sister, uncle,
538 aunt, nephew, niece, or first cousin.
539 (b) The relationships described in Subsection (25)(a) include:
540 (i) blood relationships of the whole or half blood, without regard to legitimacy;
541 (ii) relationships of parent and child by adoption; and
542 (iii) relationships of stepparent and stepchild while the marriage creating the
543 relationship of a stepparent and stepchild exists.
544 (26) "Intake probation" means a period of court monitoring that does not include field
545 supervision, but is overseen by a juvenile probation officer, during which a minor is subject to
546 return to the court in accordance with Section 78A-6-123 on and after July 1, 2018.
547 (27) "Intellectual disability" means:
548 (a) significantly subaverage intellectual functioning, an IQ of approximately 70 or
549 below on an individually administered IQ test, for infants, a clinical judgment of significantly
550 subaverage intellectual functioning;
551 (b) concurrent deficits or impairments in present adaptive functioning, the [
552 individual's effectiveness in meeting the standards expected for the [
553 by the [
554 communication, self-care, home living, social/interpersonal skills, use of community resources,
555 self-direction, functional academic skills, work, leisure, health, and safety; and
556 (c) the onset is before the [
557 (28) "Legal custody" means a relationship embodying the following rights and duties:
558 (a) the right to physical custody of the minor;
559 (b) the right and duty to protect, train, and discipline the minor;
560 (c) the duty to provide the minor with food, clothing, shelter, education, and ordinary
561 medical care;
562 (d) the right to determine where and with whom the minor shall live; and
563 (e) the right, in an emergency, to authorize surgery or other extraordinary care.
564 (29) "Material loss" means an uninsured:
565 (a) property loss;
566 (b) out-of-pocket monetary loss;
567 (c) lost wages; or
568 (d) medical expenses.
569 (30) "Mental disorder" means a serious emotional and mental disturbance that severely
570 limits a minor's development and welfare over a significant period of time.
571 (31) "Minor" means:
572 (a) a child; or
573 (b) [
574 (i) at least 18 years of age and younger than 21 years of age; and
575 (ii) under the jurisdiction of the juvenile court.
576 (32) "Mobile crisis outreach team" means a crisis intervention service for minors or
577 families of minors experiencing behavioral health or psychiatric emergencies.
578 (33) "Molestation" means that [
579 gratify the sexual desire of any [
580
581 child, or takes indecent liberties with a child[
582 [
583 (34) "Natural parent" means a minor's biological or adoptive parent, and includes the
584 minor's noncustodial parent.
585 (35) (a) "Neglect" means action or inaction causing:
586 (i) abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe
587 Relinquishment of a Newborn Child;
588 (ii) lack of proper parental care of a child by reason of the fault or habits of the parent,
589 guardian, or custodian;
590 (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
591 subsistence, education, or medical care, or any other care necessary for the child's health,
592 safety, morals, or well-being;
593 (iv) a child to be at risk of being neglected or abused because another child in the same
594 home is neglected or abused; or
595 (v) abandonment of a child through an unregulated custody transfer.
596 (b) The aspect of neglect relating to education, described in Subsection (35)(a)(iii),
597 means that, after receiving a notice of compulsory education violation under Section
598 53A-11-101.5, the parent or guardian fails to make a good faith effort to ensure that the child
599 receives an appropriate education.
600 (c) A parent or guardian legitimately practicing religious beliefs and who, for that
601 reason, does not provide specified medical treatment for a child, is not guilty of neglect.
602 (d) (i) Notwithstanding Subsection (35)(a), a health care decision made for a child by
603 the child's parent or guardian does not constitute neglect unless the state or other party to the
604 proceeding shows, by clear and convincing evidence, that the health care decision is not
605 reasonable and informed.
606 (ii) Nothing in Subsection (35)(d)(i) may prohibit a parent or guardian from exercising
607 the right to obtain a second health care opinion and from pursuing care and treatment pursuant
608 to the second health care opinion, as described in Section 78A-6-301.5.
609 (36) "Neglected child" means a child who has been subjected to neglect.
610 (37) "Nonjudicial adjustment" means closure of the case by the assigned probation
611 officer without judicial determination upon the consent in writing of:
612 (a) the assigned probation officer; and
613 (b) (i) the minor; or
614 (ii) the minor and the minor's parent, legal guardian, or custodian.
615 (38) "Not competent to proceed" means that a minor, due to a mental disorder,
616 intellectual disability, or related condition as defined, lacks the ability to:
617 (a) understand the nature of the proceedings against them or of the potential disposition
618 for the offense charged; or
619 (b) consult with counsel and participate in the proceedings against them with a
620 reasonable degree of rational understanding.
621 (39) "Physical abuse" means abuse that results in physical injury or damage to a child.
622 (40) "Probation" means a legal status created by court order following an adjudication
623 on the ground of a violation of law or under Section 78A-6-103, whereby the minor is
624 permitted to remain in the minor's home under prescribed conditions.
625 (41) "Protective supervision" means a legal status created by court order following an
626 adjudication on the ground of abuse, neglect, or dependency, whereby the minor is permitted to
627 remain in the minor's home, and supervision and assistance to correct the abuse, neglect, or
628 dependency is provided by the probation department or other agency designated by the court.
629 (42) "Related condition" means a condition closely related to intellectual disability in
630 accordance with 42 C.F.R. Part 435.1010 and further defined in Rule R539-1-3, Utah
631 Administrative Code.
632 (43) (a) "Residual parental rights and duties" means those rights and duties remaining
633 with the parent after legal custody or guardianship, or both, have been vested in another person
634 or agency, including:
635 (i) the responsibility for support;
636 (ii) the right to consent to adoption;
637 (iii) the right to determine the child's religious affiliation; and
638 (iv) the right to reasonable parent-time unless restricted by the court.
639 (b) If no guardian has been appointed, "residual parental rights and duties" also include
640 the right to consent to:
641 (i) marriage;
642 (ii) enlistment; and
643 (iii) major medical, surgical, or psychiatric treatment.
644 (44) "Secure facility" means any facility operated by or under contract with the
645 Division of Juvenile Justice Services, that provides 24-hour supervision and confinement for
646 youth offenders committed to the division for custody and rehabilitation pursuant to Subsection
647 78A-6-117(2)(d).
648 (45) "Severe abuse" means abuse that causes or threatens to cause serious harm to a
649 child.
650 (46) "Severe neglect" means neglect that causes or threatens to cause serious harm to a
651 child.
652 (47) "Sexual abuse" means:
653 (a) an act or attempted act of sexual intercourse, sodomy, incest, or molestation by an
654 adult directed towards a child;
655 (b) an act or attempted act of sexual intercourse, sodomy, incest, or molestation
656 committed by a child towards another child if:
657 (i) there is an indication of force or coercion;
658 (ii) the children are related, as described in Subsection (25);
659 (iii) there have been repeated incidents of sexual contact between the two children,
660 unless the children are 14 years of age or older; or
661 (iv) there is a disparity in chronological age of four or more years between the two
662 children; or
663 (c) engaging in any conduct with a child that would constitute an offense under any of
664 the following, regardless of whether the [
665 actually charged with, or convicted of, the offense:
666 (i) Title 76, Chapter 5, Part 4, Sexual Offenses, except for Section 76-5-401, if the
667 alleged perpetrator of an offense described in Section 76-5-401 is a minor;
668 (ii) child bigamy, Section 76-7-101.5;
669 (iii) incest, Section 76-7-102;
670 (iv) lewdness, Section 76-9-702;
671 (v) sexual battery, Section 76-9-702.1;
672 (vi) lewdness involving a child, Section 76-9-702.5; or
673 (vii) voyeurism, Section 76-9-702.7.
674 (48) "Sexual exploitation" means knowingly:
675 (a) employing, using, persuading, inducing, enticing, or coercing any child to:
676 (i) pose in the nude for the purpose of sexual arousal of any [
677 (ii) engage in any sexual or simulated sexual conduct for the purpose of photographing,
678 filming, recording, or displaying in any way the sexual or simulated sexual conduct;
679 (b) displaying, distributing, possessing for the purpose of distribution, or selling
680 material depicting a child:
681 (i) in the nude, for the purpose of sexual arousal of any [
682 (ii) engaging in sexual or simulated sexual conduct; or
683 (c) engaging in any conduct that would constitute an offense under Section 76-5b-201,
684 sexual exploitation of a minor, regardless of whether the [
685 the conduct is actually charged with, or convicted of, the offense.
686 (49) "Shelter" means the temporary care of a child in a physically unrestricted facility
687 pending court disposition or transfer to another jurisdiction.
688 (50) "Status offense" means a violation of the law that would not be a violation but for
689 the age of the offender.
690 (51) "Substance abuse" means the misuse or excessive use of alcohol or other drugs or
691 substances.
692 (52) "Substantiated" means the same as that term is defined in Section 62A-4a-101.
693 (53) "Supported" means the same as that term is defined in Section 62A-4a-101.
694 (54) "Termination of parental rights" means the permanent elimination of all parental
695 rights and duties, including residual parental rights and duties, by court order.
696 (55) "Therapist" means:
697 (a) [
698 conducting psychological treatment and counseling of a minor in its custody; or
699 (b) any other [
700 conducting psychological treatment and counseling.
701 (56) "Unregulated custody transfer" means the placement of a child:
702 (a) with [
703 adult sibling, adult uncle or aunt, or legal guardian, or a friend of the family who is an adult and
704 with whom the child is familiar, or a member of the child's federally recognized tribe;
705 (b) with the intent of severing the child's existing parent-child or guardian-child
706 relationship; and
707 (c) without taking:
708 (i) reasonable steps to ensure the safety of the child and permanency of the placement;
709 and
710 (ii) the necessary steps to transfer the legal rights and responsibilities of parenthood or
711 guardianship to the [
712 (57) "Unsubstantiated" means the same as that term is defined in Section 62A-4a-101.
713 (58) "Validated risk and needs assessment" means an evidence-based tool that assesses
714 a minor's risk of reoffending and a minor's criminogenic needs.
715 (59) "Without merit" means the same as that term is defined in Section 62A-4a-101.
716 Section 10. Section 78B-2-308 is amended to read:
717 78B-2-308. Legislative findings -- Civil actions for sexual abuse of a child --
718 Window for revival of time barred claims.
719 (1) The Legislature finds that:
720 (a) child sexual abuse is a crime that hurts the most vulnerable in our society and
721 destroys lives;
722 (b) research over the last 30 years has shown that it takes decades for children and
723 adults to pull their lives back together and find the strength to face what happened to them;
724 (c) often the abuse is compounded by the fact that the perpetrator is a member of the
725 victim's family and when such abuse comes out, the victim is further stymied by the family's
726 wish to avoid public embarrassment;
727 (d) even when the abuse is not committed by a family member, the perpetrator is rarely
728 a stranger and, if in a position of authority, often brings pressure to bear on the victim to ensure
729 silence;
730 (e) in 1992, when the Legislature enacted the statute of limitations requiring victims to
731 sue within four years of majority, society did not understand the long-lasting effects of abuse
732 on the victim and that it takes decades for the healing necessary for a victim to seek redress;
733 (f) the Legislature, as the policy-maker for the state, may take into consideration
734 advances in medical science and understanding in revisiting policies and laws shown to be
735 harmful to the citizens of this state rather than beneficial; and
736 (g) the Legislature has the authority to change old laws in the face of new information,
737 and set new policies within the limits of due process, fairness, and justice.
738 (2) As used in this section:
739 (a) "Child" means [
740 (b) "Discovery" means when [
741 the injury or illness was caused by the intentional or negligent sexual abuse.
742 (c) "Injury or illness" means either a physical injury or illness or a psychological injury
743 or illness. A psychological injury or illness need not be accompanied by physical injury or
744 illness.
745 (d) "Molestation" means that [
746 gratify the sexual desire of any [
747 or genitalia of any child, or the breast of a female child[
748 child[
749 [
750 (e) "Negligently" means a failure to act to prevent the child sexual abuse from further
751 occurring or to report the child sexual abuse to law enforcement when the adult who could act
752 knows or reasonably should know of the child sexual abuse and is the victim's parent,
753 stepparent, adoptive parent, foster parent, legal guardian, ancestor, descendant, brother, sister,
754 uncle, aunt, first cousin, nephew, niece, grandparent, stepgrandparent, or any [
755 individual cohabiting in the child's home.
756 (f) "Perpetrator" means an individual who has committed an act of sexual abuse.
757 (g) "Sexual abuse" means acts or attempted acts of sexual intercourse, sodomy, or
758 molestation by an adult directed towards a child.
759 (h) "Victim" means an individual who was intentionally or negligently sexually abused.
760 It does not include individuals whose claims are derived through another individual who was
761 sexually abused.
762 (3) (a) A victim may file a civil action against a perpetrator for intentional or negligent
763 sexual abuse suffered as a child at any time.
764 (b) A victim may file a civil action against a non-perpetrator for intentional or
765 negligent sexual abuse suffered as a child:
766 (i) within four years after the [
767 (ii) if a victim discovers sexual abuse only after attaining the age of 18 years, that
768 [
769 discovery of the sexual abuse, whichever period expires later.
770 (4) The victim need not establish which act in a series of continuing sexual abuse
771 incidents caused the injury complained of, but may compute the date of discovery from the date
772 of discovery of the last act by the same perpetrator which is part of a common scheme or plan
773 of sexual abuse.
774 (5) The knowledge of a custodial parent or guardian may not be imputed to [
775 an individual under the age of 18 years.
776 (6) A civil action may be brought only against a living [
777 (a) intentionally perpetrated the sexual abuse;
778 (b) would be criminally responsible for the sexual abuse in accordance with Section
779 76-2-202; or
780 (c) negligently permitted the sexual abuse to occur.
781 (7) A civil action against [
782 or (b) for sexual abuse that was time barred as of July 1, 2016, may be brought within 35 years
783 of the victim's 18th birthday, or within three years of the effective date of this Subsection (7),
784 whichever is longer.
785 (8) A civil action may not be brought as provided in Subsection (7) for:
786 (a) any claim that has been litigated to finality on the merits in a court of competent
787 jurisdiction prior to July 1, 2016, however termination of a prior civil action on the basis of the
788 expiration of the statute of limitations does not constitute a claim that has been litigated to
789 finality on the merits; and
790 (b) any claim where a written settlement agreement was entered into between a victim
791 and a defendant or perpetrator, unless the settlement agreement was the result of fraud, duress,
792 or unconscionability. There is a rebuttable presumption that a settlement agreement signed by
793 the victim when the victim was not represented by an attorney admitted to practice law in this
794 state at the time of the settlement was the result of fraud, duress, or unconscionability.