1     
COORDINATED PENALTIES FOR SEXUAL ABUSE

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: LaVar Christensen

5     
Senate Sponsor: Curtis S. Bramble

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7     LONG TITLE
8     General Description:
9          This bill creates an enhancement for penalties related to sexual abuse of students and
10     makes a technical correction to the enticing a minor statute.
11     Highlighted Provisions:
12          This bill:
13          ▸     creates a one level enhancement for sexual abuse when the actor is a teacher,
14     employee, or volunteer in a school and the victim is a student; and
15          ▸     makes a technical correction to the enticing a minor statute.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          76-4-401, as last amended by Laws of Utah 2013, Chapters 175 and 278
23          76-5-401.1, as last amended by Laws of Utah 2016, Chapter 372
24          76-5-401.2, as last amended by Laws of Utah 2014, Chapter 135
25     ENACTS:
26          76-3-203.13, Utah Code Annotated 1953
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 76-3-203.13 is enacted to read:

30          76-3-203.13. Enhanced penalty for unlawful sexual contact with a student.
31          (1) A person convicted of a sexual offense described in Section 76-5-401.1 or
32     76-5-401.2 may be subject to an enhanced penalty if, at the time of the commission of the
33     sexual offense, the actor:
34          (a) was 18 years of age or older;
35          (b) held a position of special trust as a teacher, employee, or volunteer at a school, as
36     that position is defined in Subsection 76-5-404.1(1)(c)(xix); and
37          (c) committed the offense against an individual who at the time of the offense was
38     enrolled as a student at the school where the actor was employed or was acting as a volunteer.
39          (2) The enhancement of a penalty described in Subsection (1) shall be an enhancement
40     of one classification higher than the offense of which the person was convicted.
41          Section 2. Section 76-4-401 is amended to read:
42          76-4-401. Enticing a minor -- Elements -- Penalties.
43          (1) As used in this section:
44          (a) "Minor" means a person who is under the age of 18.
45          (b) "Text messaging" means a communication in the form of electronic text or one or
46     more electronic images sent by the actor from a telephone, computer, or other electronic
47     communication device to another person's telephone, computer, or other electronic
48     communication device by addressing the communication to the person's telephone number or
49     other electronic communication access code or number.
50          (2) (a) A person commits enticement of a minor when the person knowingly uses the
51     Internet or text messaging to solicit, seduce, lure, or entice a minor, or to attempt to solicit,
52     seduce, lure, or entice a minor, or another person that the actor believes to be a minor, to
53     engage in any sexual activity which is a violation of state criminal law.
54          (b) A person commits enticement of a minor when the person knowingly uses the
55     Internet or text messaging to:
56          (i) initiate contact with a minor or a person the actor believes to be a minor; and
57          (ii) subsequently to the action under Subsection (2)(b)(i), by any electronic or written

58     means, solicits, seduces, lures, or entices, or attempts to solicit, seduce, lure, or entice the
59     minor or a person the actor believes to be the minor to engage in any sexual activity which is a
60     violation of state criminal law.
61          (3) It is not a defense to the crime of enticing a minor under Subsection (2), or an
62     attempt to commit this offense, that a law enforcement officer or an undercover operative who
63     is [working with] employed by a law enforcement agency was involved in the detection or
64     investigation of the offense.
65          (4) Enticement of a minor under Subsection (2)(a) or (b) is punishable as follows:
66          (a) enticement to engage in sexual activity which would be a first degree felony for the
67     actor is a:
68          (i) second degree felony upon the first conviction for violation of this Subsection
69     (4)(a); and
70          (ii) first degree felony punishable by imprisonment for an indeterminate term of not
71     fewer than three years and which may be for life, upon a second or any subsequent conviction
72     for a violation of this Subsection (4)(a);
73          (b) enticement to engage in sexual activity which would be a second degree felony for
74     the actor is a third degree felony;
75          (c) enticement to engage in sexual activity which would be a third degree felony for the
76     actor is a class A misdemeanor;
77          (d) enticement to engage in sexual activity which would be a class A misdemeanor for
78     the actor is a class B misdemeanor; and
79          (e) enticement to engage in sexual activity which would be a class B misdemeanor for
80     the actor is a class C misdemeanor.
81          (5) (a) When a person who commits a felony violation of this section has been
82     previously convicted of an offense under Subsection (5)(b), the court may not in any way
83     shorten the prison sentence, and the court may not:
84          (i) grant probation;
85          (ii) suspend the execution or imposition of the sentence;

86          (iii) enter a judgment for a lower category of offense; or
87          (iv) order hospitalization.
88          (b) The sections referred to in Subsection (5)(a) are:
89          (i) Section 76-4-401, enticing a minor;
90          (ii) Section 76-5-301.1, child kidnapping;
91          (iii) Section 76-5-402, rape;
92          (iv) Section 76-5-402.1, rape of a child;
93          (v) Section 76-5-402.2, object rape;
94          (vi) Section 76-5-402.3, object rape of a child;
95          (vii) Subsection 76-5-403(2), forcible sodomy;
96          (viii) Section 76-5-403.1, sodomy on a child;
97          (ix) Section 76-5-404, forcible sexual abuse;
98          (x) Section 76-5-404.1, sexual abuse of a child and aggravated sexual abuse of a child;
99          (xi) Section 76-5-405, aggravated sexual assault;
100          (xii) any offense in any other state or federal jurisdiction which constitutes or would
101     constitute a crime in Subsections (5)(b)(i) through (xi); or
102          (xiii) the attempt, solicitation, or conspiracy to commit any of the offenses in
103     Subsections (5)(b)(i) through (xii).
104          Section 3. Section 76-5-401.1 is amended to read:
105          76-5-401.1. Sexual abuse of a minor.
106          (1) For purposes of this section "minor" is a person who is 14 years of age or older, but
107     younger than 16 years of age, at the time the sexual activity described in this section occurred.
108          (2) A person commits sexual abuse of a minor if the person is four years or more older
109     than the minor [or holds a relationship of special trust as an adult teacher, employee, or
110     volunteer, as described in Subsection 76-5-404.1(1)(c)(xix)] and, under circumstances not
111     amounting to rape, in violation of Section 76-5-402, object rape, in violation of Section
112     76-5-402.2, forcible sodomy, in violation of Section 76-5-403, aggravated sexual assault, in
113     violation of Section 76-5-405, unlawful sexual activity with a minor, in violation of Section

114     76-5-401, or an attempt to commit any of those offenses, the person touches the anus, buttocks,
115     or any part of the genitals of the minor, or touches the breast of a female minor, or otherwise
116     takes indecent liberties with the minor, or causes a minor to take indecent liberties with the
117     actor or another person, with the intent to cause substantial emotional or bodily pain to any
118     person or with the intent to arouse or gratify the sexual desire of any person regardless of the
119     sex of any participant.
120          (3) [(a) Except under Subsection (3)(b), a] A violation of this section is a class A
121     misdemeanor and is not subject to registration under Subsection 77-41-102(17)(a)(iv) on a first
122     offense if the offender was younger than 21 years of age at the time of the offense.
123          [(b) A violation of this section is a third degree felony if the actor at the time of the
124     commission of the offense:]
125          [(i) is 18 years of age or older;]
126          [(ii) held a position of special trust as a teacher or a volunteer at a school, as that
127     position is defined in Subsection 76-5-404.1(1)(c)(xix); and]
128          [(iii) committed the offense against an individual who at the time of the offense was
129     enrolled as a student at the school where the actor was employed or was acting as a volunteer.]
130          Section 4. Section 76-5-401.2 is amended to read:
131          76-5-401.2. Unlawful sexual conduct with a 16- or 17-year-old.
132          (1) As used in this section, "minor" means a person who is 16 years of age or older, but
133     younger than 18 years of age, at the time the sexual conduct described in Subsection (2)
134     occurred.
135          (2) (a) A person commits unlawful sexual conduct with a minor if, under
136     circumstances not amounting to an offense listed under Subsection (3), a person who is:
137          (i) seven or more years older but less than 10 years older than the minor at the time of
138     the sexual conduct engages in any conduct listed in Subsection (2)(b), and the person knew or
139     reasonably should have known the age of the minor; or
140          (ii) 10 or more years older than the minor at the time of the sexual conduct and engages
141     in any conduct listed in Subsection (2)(b)[; or].

142          [(iii) holds a relationship of special trust as an adult teacher, employee, or volunteer, as
143     described in Subsection 76-5-404.1(1)(c)(xix).]
144          (b) As used in Subsection (2)(a), "sexual conduct" refers to when the person:
145          (i) has sexual intercourse with the minor;
146          (ii) engages in any sexual act with the minor involving the genitals of one person and
147     the mouth or anus of another person, regardless of the sex of either participant;
148          (iii) causes the penetration, however slight, of the genital or anal opening of the minor
149     by any foreign object, substance, instrument, or device, including a part of the human body,
150     with the intent to cause substantial emotional or bodily pain to any person or with the intent to
151     arouse or gratify the sexual desire of any person, regardless of the sex of any participant; or
152          (iv) touches the anus, buttocks, or any part of the genitals of the minor, or touches the
153     breast of a female minor, or otherwise takes indecent liberties with the minor, or causes a
154     minor to take indecent liberties with the actor or another person, with the intent to cause
155     substantial emotional or bodily pain to any person or with the intent to arouse or gratify the
156     sexual desire of any person regardless of the sex of any participant.
157          (3) The offenses referred to in Subsection (2) are:
158          (a) (i) rape, in violation of Section 76-5-402;
159          (ii) object rape, in violation of Section 76-5-402.2;
160          (iii) forcible sodomy, in violation of Section 76-5-403;
161          (iv) forcible sexual abuse, in violation of Section 76-5-404; or
162          (v) aggravated sexual assault, in violation of Section 76-5-405; or
163          (b) an attempt to commit any offense under Subsection (3)(a).
164          (4) A violation of Subsection (2)(b)(i), (ii), or (iii) is a third degree felony.
165          (5) [(a)] A violation of Subsection (2)(b)(iv) is a class A misdemeanor[, except under
166     Subsection (5)(b)].
167          [(b) A violation of Subsection (2)(b)(iv) is a third degree felony if the actor at the time
168     of the commission of the offense:]
169          [(i) is 18 years of age or older;]

170          [(ii) held a position of special trust as a teacher or a volunteer at a school, as that
171     position is defined in Subsection 76-5-404.1(1)(c)(xix); and]
172          [(iii) committed the offense against an individual who at the time of the offense was
173     enrolled as a student at the school where the actor was employed or was acting as a volunteer.]