Representative Merrill F. Nelson proposes the following substitute bill:




Chief Sponsor: Merrill F. Nelson

Senate Sponsor: Wayne A. Harper


8     General Description:
9          This bill modifies provisions related to sexual abuse.
10     Highlighted Provisions:
11          This bill:
12          ▸     amends the definition of related children for purposes of child protection; and
13          ▸     makes technical changes.
14     Money Appropriated in this Bill:
15          None
16     Other Special Clauses:
17          None
18     Utah Code Sections Affected:
19     AMENDS:
20          78A-6-105, as last amended by Laws of Utah 2017, Chapters 181, 330, and 401

22     Be it enacted by the Legislature of the state of Utah:
23          Section 1. Section 78A-6-105 is amended to read:
24          78A-6-105. Definitions.
25          As used in this chapter:

26          (1) (a) "Abuse" means:
27          (i) (A) nonaccidental harm of a child;
28          (B) threatened harm of a child;
29          (C) sexual exploitation;
30          (D) sexual abuse; or
31          (E) human trafficking of a child in violation of Section 76-5-308.5; or
32          (ii) that a child's natural parent:
33          (A) intentionally, knowingly, or recklessly causes the death of another parent of the
34     child;
35          (B) is identified by a law enforcement agency as the primary suspect in an investigation
36     for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
37          (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
38     recklessly causing the death of another parent of the child.
39          (b) "Abuse" does not include:
40          (i) reasonable discipline or management of a child, including withholding privileges;
41          (ii) conduct described in Section 76-2-401; or
42          (iii) the use of reasonable and necessary physical restraint or force on a child:
43          (A) in self-defense;
44          (B) in defense of others;
45          (C) to protect the child; or
46          (D) to remove a weapon in the possession of a child for any of the reasons described in
47     Subsections (1)(b)(iii)(A) through (C).
48          (2) "Abused child" means a child who has been subjected to abuse.
49          (3) "Adjudication" means a finding by the court, incorporated in a decree, that the facts
50     alleged in the petition have been proved. A finding of not competent to proceed pursuant to
51     Section 78A-6-1302 is not an adjudication.
52          (4) "Adult" means a person 18 years of age or over, except that a person 18 years or
53     over under the continuing jurisdiction of the juvenile court pursuant to Section 78A-6-120 shall
54     be referred to as a minor.
55          (5) "Board" means the Board of Juvenile Court Judges.
56          (6) "Child" means a person under 18 years of age.

57          (7) "Child placement agency" means:
58          (a) a private agency licensed to receive a child for placement or adoption under this
59     code; or
60          (b) a private agency that receives a child for placement or adoption in another state,
61     which agency is licensed or approved where such license or approval is required by law.
62          (8) "Clandestine laboratory operation" means the same as that term is defined in
63     Section 58-37d-3.
64          (9) "Commit" means, unless specified otherwise:
65          (a) with respect to a child, to transfer legal custody; and
66          (b) with respect to a minor who is at least 18 years of age, to transfer custody.
67          (10) "Court" means the juvenile court.
68          (11) "Criminogenic risk factors" means evidence-based factors that are associated with
69     a minor's likelihood of reoffending.
70          (12) "Delinquent act" means an act that would constitute a felony or misdemeanor if
71     committed by an adult.
72          (13) "Dependent child" includes a child who is homeless or without proper care
73     through no fault of the child's parent, guardian, or custodian.
74          (14) "Deprivation of custody" means transfer of legal custody by the court from a
75     parent or the parents or a previous legal custodian to another person, agency, or institution.
76          (15) "Detention" means home detention and secure detention as defined in Section
77     62A-7-101 for the temporary care of a minor who requires secure custody in a physically
78     restricting facility:
79          (a) pending court disposition or transfer to another jurisdiction; or
80          (b) while under the continuing jurisdiction of the court.
81          (16) "Detention risk assessment tool" means an evidence-based tool established under
82     Section 78A-6-124, on and after July 1, 2018, that assesses a minor's risk of failing to appear in
83     court or reoffending pre-adjudication and designed to assist in making detention
84     determinations.
85          (17) "Division" means the Division of Child and Family Services.
86          (18) "Evidence-based" means a program or practice that has had multiple randomized
87     control studies or a meta-analysis demonstrating that the program or practice is effective for a

88     specific population or has been rated as effective by a standardized program evaluation tool.
89          (19) "Formal probation" means a minor is under field supervision by the probation
90     department or other agency designated by the court and subject to return to the court in
91     accordance with Section 78A-6-123 on and after July 1, 2018.
92          (20) "Formal referral" means a written report from a peace officer or other person
93     informing the court that a minor is or appears to be within the court's jurisdiction and that a
94     case must be reviewed.
95          (21) "Group rehabilitation therapy" means psychological and social counseling of one
96     or more persons in the group, depending upon the recommendation of the therapist.
97          (22) "Guardianship of the person" includes the authority to consent to:
98          (a) marriage;
99          (b) enlistment in the armed forces;
100          (c) major medical, surgical, or psychiatric treatment; or
101          (d) legal custody, if legal custody is not vested in another person, agency, or institution.
102          (23) "Habitual truant" means the same as that term is defined in Section 53A-11-101.
103          (24) "Harm" means:
104          (a) physical or developmental injury or damage;
105          (b) emotional damage that results in a serious impairment in the child's growth,
106     development, behavior, or psychological functioning;
107          (c) sexual abuse; or
108          (d) sexual exploitation.
109          (25) (a) "Incest" means engaging in sexual intercourse with a person whom the
110     perpetrator knows to be the perpetrator's ancestor, descendant, brother, sister, uncle, aunt,
111     nephew, niece, or first cousin.
112          (b) The relationships described in Subsection (25)(a) include:
113          (i) blood relationships of the whole or half blood, without regard to legitimacy;
114          (ii) relationships of parent and child by adoption; and
115          (iii) relationships of stepparent and stepchild while the marriage creating the
116     relationship of a stepparent and stepchild exists.
117          (26) "Intake probation" means a period of court monitoring that does not include field
118     supervision, but is overseen by a juvenile probation officer, during which a minor is subject to

119     return to the court in accordance with Section 78A-6-123 on and after July 1, 2018.
120          (27) "Intellectual disability" means:
121          (a) significantly subaverage intellectual functioning, an IQ of approximately 70 or
122     below on an individually administered IQ test, for infants, a clinical judgment of significantly
123     subaverage intellectual functioning;
124          (b) concurrent deficits or impairments in present adaptive functioning, the person's
125     effectiveness in meeting the standards expected for the person's age by the person's cultural
126     group, in at least two of the following areas: communication, self-care, home living,
127     social/interpersonal skills, use of community resources, self-direction, functional academic
128     skills, work, leisure, health, and safety; and
129          (c) the onset is before the person reaches the age of 18 years.
130          (28) "Legal custody" means a relationship embodying the following rights and duties:
131          (a) the right to physical custody of the minor;
132          (b) the right and duty to protect, train, and discipline the minor;
133          (c) the duty to provide the minor with food, clothing, shelter, education, and ordinary
134     medical care;
135          (d) the right to determine where and with whom the minor shall live; and
136          (e) the right, in an emergency, to authorize surgery or other extraordinary care.
137          (29) "Material loss" means an uninsured:
138          (a) property loss;
139          (b) out-of-pocket monetary loss;
140          (c) lost wages; or
141          (d) medical expenses.
142          (30) "Mental disorder" means a serious emotional and mental disturbance that severely
143     limits a minor's development and welfare over a significant period of time.
144          (31) "Minor" means:
145          (a) a child; or
146          (b) a person who is:
147          (i) at least 18 years of age and younger than 21 years of age; and
148          (ii) under the jurisdiction of the juvenile court.
149          (32) "Mobile crisis outreach team" means a crisis intervention service for minors or

150     families of minors experiencing behavioral health or psychiatric emergencies.
151          (33) "Molestation" means that a person, with the intent to arouse or gratify the sexual
152     desire of any person:
153          (a) touches the anus or any part of the genitals of a child;
154          (b) takes indecent liberties with a child; or
155          (c) causes a child to take indecent liberties with the perpetrator or another.
156          (34) "Natural parent" means a minor's biological or adoptive parent, and includes the
157     minor's noncustodial parent.
158          (35) (a) "Neglect" means action or inaction causing:
159          (i) abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe
160     Relinquishment of a Newborn Child;
161          (ii) lack of proper parental care of a child by reason of the fault or habits of the parent,
162     guardian, or custodian;
163          (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
164     subsistence, education, or medical care, or any other care necessary for the child's health,
165     safety, morals, or well-being;
166          (iv) a child to be at risk of being neglected or abused because another child in the same
167     home is neglected or abused; or
168          (v) abandonment of a child through an unregulated custody transfer.
169          (b) The aspect of neglect relating to education, described in Subsection (35)(a)(iii),
170     means that, after receiving a notice of compulsory education violation under Section
171     53A-11-101.5, the parent or guardian fails to make a good faith effort to ensure that the child
172     receives an appropriate education.
173          (c) A parent or guardian legitimately practicing religious beliefs and who, for that
174     reason, does not provide specified medical treatment for a child, is not guilty of neglect.
175          (d) (i) Notwithstanding Subsection (35)(a), a health care decision made for a child by
176     the child's parent or guardian does not constitute neglect unless the state or other party to the
177     proceeding shows, by clear and convincing evidence, that the health care decision is not
178     reasonable and informed.
179          (ii) Nothing in Subsection (35)(d)(i) may prohibit a parent or guardian from exercising
180     the right to obtain a second health care opinion and from pursuing care and treatment pursuant

181     to the second health care opinion, as described in Section 78A-6-301.5.
182          (36) "Neglected child" means a child who has been subjected to neglect.
183          (37) "Nonjudicial adjustment" means closure of the case by the assigned probation
184     officer without judicial determination upon the consent in writing of:
185          (a) the assigned probation officer; and
186          (b) (i) the minor; or
187          (ii) the minor and the minor's parent, legal guardian, or custodian.
188          (38) "Not competent to proceed" means that a minor, due to a mental disorder,
189     intellectual disability, or related condition as defined, lacks the ability to:
190          (a) understand the nature of the proceedings against them or of the potential disposition
191     for the offense charged; or
192          (b) consult with counsel and participate in the proceedings against them with a
193     reasonable degree of rational understanding.
194          (39) "Physical abuse" means abuse that results in physical injury or damage to a child.
195          (40) "Probation" means a legal status created by court order following an adjudication
196     on the ground of a violation of law or under Section 78A-6-103, whereby the minor is
197     permitted to remain in the minor's home under prescribed conditions.
198          (41) "Protective supervision" means a legal status created by court order following an
199     adjudication on the ground of abuse, neglect, or dependency, whereby the minor is permitted to
200     remain in the minor's home, and supervision and assistance to correct the abuse, neglect, or
201     dependency is provided by the probation department or other agency designated by the court.
202          (42) "Related condition" means a condition closely related to intellectual disability in
203     accordance with 42 C.F.R. Part 435.1010 and further defined in Rule R539-1-3, Utah
204     Administrative Code.
205          (43) (a) "Residual parental rights and duties" means those rights and duties remaining
206     with the parent after legal custody or guardianship, or both, have been vested in another person
207     or agency, including:
208          (i) the responsibility for support;
209          (ii) the right to consent to adoption;
210          (iii) the right to determine the child's religious affiliation; and
211          (iv) the right to reasonable parent-time unless restricted by the court.

212          (b) If no guardian has been appointed, "residual parental rights and duties" also include
213     the right to consent to:
214          (i) marriage;
215          (ii) enlistment; and
216          (iii) major medical, surgical, or psychiatric treatment.
217          (44) "Secure facility" means any facility operated by or under contract with the
218     Division of Juvenile Justice Services, that provides 24-hour supervision and confinement for
219     youth offenders committed to the division for custody and rehabilitation pursuant to Subsection
220     78A-6-117(2)(d).
221          (45) "Severe abuse" means abuse that causes or threatens to cause serious harm to a
222     child.
223          (46) "Severe neglect" means neglect that causes or threatens to cause serious harm to a
224     child.
225          (47) "Sexual abuse" means:
226          (a) an act or attempted act of sexual intercourse, sodomy, incest, or molestation by an
227     adult directed towards a child;
228          (b) an act or attempted act of sexual intercourse, sodomy, incest, or molestation
229     committed by a child towards another child if:
230          (i) there is an indication of force or coercion;
231          (ii) the children are related, as described in Subsection (25), including siblings by
232     adoption or marriage while the marriage exists;
233          (iii) there have been repeated incidents of sexual contact between the two children,
234     unless the children are 14 years of age or older; or
235          (iv) there is a disparity in chronological age of four or more years between the two
236     children; or
237          (c) engaging in any conduct with a child that would constitute an offense under any of
238     the following, regardless of whether the person who engages in the conduct is actually charged
239     with, or convicted of, the offense:
240          (i) Title 76, Chapter 5, Part 4, Sexual Offenses, except for Section 76-5-401, if the
241     alleged perpetrator of an offense described in Section 76-5-401 is a minor;
242          (ii) child bigamy, Section 76-7-101.5;

243          (iii) incest, Section 76-7-102;
244          (iv) lewdness, Section 76-9-702;
245          (v) sexual battery, Section 76-9-702.1;
246          (vi) lewdness involving a child, Section 76-9-702.5; or
247          (vii) voyeurism, Section 76-9-702.7.
248          (48) "Sexual exploitation" means knowingly:
249          (a) employing, using, persuading, inducing, enticing, or coercing any child to:
250          (i) pose in the nude for the purpose of sexual arousal of any person; or
251          (ii) engage in any sexual or simulated sexual conduct for the purpose of photographing,
252     filming, recording, or displaying in any way the sexual or simulated sexual conduct;
253          (b) displaying, distributing, possessing for the purpose of distribution, or selling
254     material depicting a child:
255          (i) in the nude, for the purpose of sexual arousal of any person; or
256          (ii) engaging in sexual or simulated sexual conduct; or
257          (c) engaging in any conduct that would constitute an offense under Section 76-5b-201,
258     sexual exploitation of a minor, regardless of whether the person who engages in the conduct is
259     actually charged with, or convicted of, the offense.
260          (49) "Shelter" means the temporary care of a child in a physically unrestricted facility
261     pending court disposition or transfer to another jurisdiction.
262          (50) "Status offense" means a violation of the law that would not be a violation but for
263     the age of the offender.
264          (51) "Substance abuse" means the misuse or excessive use of alcohol or other drugs or
265     substances.
266          (52) "Substantiated" means the same as that term is defined in Section 62A-4a-101.
267          (53) "Supported" means the same as that term is defined in Section 62A-4a-101.
268          (54) "Termination of parental rights" means the permanent elimination of all parental
269     rights and duties, including residual parental rights and duties, by court order.
270          (55) "Therapist" means:
271          (a) a person employed by a state division or agency for the purpose of conducting
272     psychological treatment and counseling of a minor in its custody; or
273          (b) any other person licensed or approved by the state for the purpose of conducting

274     psychological treatment and counseling.
275          (56) "Unregulated custody transfer" means the placement of a child:
276          (a) with a person who is not the child's parent, step-parent, grandparent, adult sibling,
277     adult uncle or aunt, or legal guardian, or a friend of the family who is an adult and with whom
278     the child is familiar, or a member of the child's federally recognized tribe;
279          (b) with the intent of severing the child's existing parent-child or guardian-child
280     relationship; and
281          (c) without taking:
282          (i) reasonable steps to ensure the safety of the child and permanency of the placement;
283     and
284          (ii) the necessary steps to transfer the legal rights and responsibilities of parenthood or
285     guardianship to the person taking custody of the child.
286          (57) "Unsubstantiated" means the same as that term is defined in Section 62A-4a-101.
287          (58) "Validated risk and needs assessment" means an evidence-based tool that assesses
288     a minor's risk of reoffending and a minor's criminogenic needs.
289          (59) "Without merit" means the same as that term is defined in Section 62A-4a-101.