1     
CRIMINAL CODE TASK FORCE AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Paul Ray

5     
Senate Sponsor: Karen Mayne

6     

7     LONG TITLE
8     Committee Note:
9          The Criminal Code Evaluation Task Force recommended this bill.
10               Membership:     6 legislators     9 non-legislators
11               Legislative Vote:     6 voting for     0 voting against     0 absent
12          The Law Enforcement and Criminal Justice Interim Committee recommended this bill.
13               Legislative Vote:     12 voting for     0 voting against     5 absent
14     General Description:
15          This bill modifies criminal offenses and penalties in the Utah Code.
16     Highlighted Provisions:
17          This bill:
18          ▸     modifies the definition of "health professional" as the term relates to certain sexual
19     offenses;
20          ▸     modifies certain criminal offenses and penalties relating to:
21               •     dealing in material harmful to minors between a young adult and adolescent;
22               •     obstruction of alcoholic beverage control investigations;
23               •     registration as a sex offender;
24               •     rendering a dead body unavailable for postmortem investigation;
25               •     repeated violations of the Minimum Wage Act; and
26               •     theft;
27          ▸     repeals the criminal offenses of adultery and sodomy;

28          ▸     provides immunity from prosecution for the offenses of prostitution and sexual
29     solicitation under certain circumstances; and
30          ▸     makes technical changes.
31     Money Appropriated in this Bill:
32          None
33     Other Special Clauses:
34          None
35     Utah Code Sections Affected:
36     AMENDS:
37          26-2-18.5, as enacted by Laws of Utah 2009, Chapter 223
38          31A-22-726, as last amended by Laws of Utah 2015, Chapter 283
39          32B-4-505, as enacted by Laws of Utah 2010, Chapter 276
40          34-40-204, as last amended by Laws of Utah 1997, Chapter 375
41          53G-6-707, as renumbered and amended by Laws of Utah 2018, Chapter 3
42          62A-15-602, as last amended by Laws of Utah 2018, Chapter 322
43          76-3-406, as last amended by Laws of Utah 2017, Chapter 397
44          76-5-403, as last amended by Laws of Utah 2013, Chapter 81
45          76-5-404, as last amended by Laws of Utah 2018, Chapter 192
46          76-5-406, as last amended by Laws of Utah 2018, Chapter 176
47          76-5-407, as last amended by Laws of Utah 2000, Chapter 128
48          76-6-412, as last amended by Laws of Utah 2018, Chapter 265
49          76-7-302, as last amended by Laws of Utah 2018, Chapter 282
50          76-7-305, as last amended by Laws of Utah 2018, Chapter 282
51          76-10-1206, as last amended by Laws of Utah 2009, Chapter 345
52          76-10-1302, as last amended by Laws of Utah 2017, Chapter 433
53          76-10-1313, as last amended by Laws of Utah 2018, Chapter 308
54          77-41-107, as last amended by Laws of Utah 2015, Chapter 210
55     REPEALS:
56          76-7-103, as last amended by Laws of Utah 1991, Chapter 241
57     

58     Be it enacted by the Legislature of the state of Utah:

59          Section 1. Section 26-2-18.5 is amended to read:
60          26-2-18.5. Rendering a dead body unavailable for postmortem investigation.
61          (1) As used in this section:
62          (a) "Medical examiner" [is as] means the same as that term is defined in Section
63     26-4-2.
64          (b) "Unavailable for postmortem investigation" [is as] means the same as that term is
65     defined in Section 26-4-2.
66          (2) It is unlawful for a person to engage in any conduct that makes a dead body
67     unavailable for postmortem investigation, unless, before engaging in that conduct, the person
68     obtains a permit from the medical examiner to render the dead body unavailable for
69     postmortem investigation, under Section 26-4-29[.], if the person intends to make the body
70     unavailable for postmortem investigation.
71          (3) A person who violates Subsection (2) is guilty of a [class B misdemeanor] third
72     degree felony.
73          (4) If a person engages in conduct that constitutes both a violation of this section and a
74     violation of Section 76-9-704, the provisions and penalties of Section 76-9-704 [supercede]
75     supersede the provisions and penalties of this section.
76          Section 2. Section 31A-22-726 is amended to read:
77          31A-22-726. Abortion coverage restriction in health benefit plan and on health
78     insurance exchange.
79          (1) As used in this section, "permitted abortion coverage" means coverage for abortion:
80          (a) that is necessary to avert:
81          (i) the death of the woman on whom the abortion is performed; or
82          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
83     of the woman on whom the abortion is performed;
84          (b) of a fetus that has a defect that is documented by a physician or physicians to be
85     uniformly diagnosable and uniformly lethal; or
86          (c) where the woman is pregnant as a result of:
87          (i) rape, as described in Section 76-5-402;
88          (ii) rape of a child, as described in Section 76-5-402.1; or
89          (iii) incest, as described in Subsection 76-5-406[(10)] (2)(j) or Section 76-7-102.

90          (2) A person may not offer coverage for an abortion in a health benefit plan, unless the
91     coverage is a type of permitted abortion coverage.
92          [(3) A person may not offer a health benefit plan that provides coverage for an abortion
93     in a health insurance exchange created under Title 63N, Chapter 11, Health System Reform
94     Act, unless the coverage is a type of permitted abortion coverage.]
95          [(4)] (3) A person may not offer a health benefit plan that provides coverage for an
96     abortion in a health insurance exchange created under the federal Patient Protection and
97     Affordable Care Act, 111 P.L. 148, unless the coverage is a type of permitted abortion
98     coverage.
99          Section 3. Section 32B-4-505 is amended to read:
100          32B-4-505. Obstructing a search, official proceeding, or investigation.
101          (1) A person who is in the premises or has charge over premises may not refuse or fail
102     to admit to the premises or obstruct the entry of any of the following who demands entry when
103     acting under this title:
104          (a) a commissioner;
105          (b) an authorized representative of the commission or department; or
106          (c) a law enforcement officer.
107          (2) A person who is in the premises or has charge of the premises may not interfere
108     with any of the following who is conducting an investigation under this title at the premises:
109          (a) a commissioner;
110          (b) an authorized representative of the commission or department; or
111          (c) a law enforcement officer.
112          (3) A person is guilty of a [second degree felony] class A misdemeanor if, believing
113     that an official proceeding or investigation is pending or about to be instituted under this title,
114     that person:
115          (a) alters, destroys, conceals, or removes a record with a purpose to impair [its] the
116     record's verity or availability in the proceeding or investigation; or
117          (b) makes, presents, or uses anything that the person knows to be false with a purpose
118     to deceive any of the following who may be engaged in a proceeding or investigation under this
119     title:
120          (i) a commissioner;

121          (ii) an authorized representative of the commission or department;
122          (iii) a law enforcement officer; or
123          (iv) other person.
124          Section 4. Section 34-40-204 is amended to read:
125          34-40-204. Criminal penalty -- Enforcement.
126          (1) [(a) Repeated violation of this chapter is a class B misdemeanor.]
127          [(b) "Repeated violations" does not include] As used in this section, "violation"
128     includes separate violations as to individual employees arising out of the same investigation or
129     enforcement action.
130          (2) (a) A violation of this chapter is an infraction.
131          (b) A second violation of this chapter is a class C misdemeanor.
132          (c) A third or subsequent violation of this chapter is a class B misdemeanor.
133          [(2) Upon the third violation by the same employer within a three-year period, the]
134          (3) Upon an employer's violation of this section, the commission may prosecute a
135     criminal action in the name of the state.
136          [(3)] (4) The county attorney, district attorney, or attorney general shall provide
137     assistance in prosecutions under this section at the request of the commission.
138          Section 5. Section 53G-6-707 is amended to read:
139          53G-6-707. Interstate compact students -- Inclusion in attendance count --
140     Foreign exchange students -- Annual report -- Requirements for exchange student
141     agencies.
142          (1) A school district or charter school may include the following students in the
143     district's or school's membership and attendance count for the purpose of apportionment of
144     state money:
145          (a) a student enrolled under an interstate compact, established between the State Board
146     of Education and the state education authority of another state, under which a student from one
147     compact state would be permitted to enroll in a public school in the other compact state on the
148     same basis as a resident student of the receiving state; or
149          (b) a student receiving services under Title 62A, Chapter 4a, Part 7, Interstate Compact
150     on Placement of Children.
151          (2) A school district or charter school may:

152          (a) enroll foreign exchange students that do not qualify for state money; and
153          (b) pay for the costs of those students with other funds available to the school district
154     or charter school.
155          (3) Due to the benefits to all students of having the opportunity to become familiar
156     with individuals from diverse backgrounds and cultures, school districts are encouraged to
157     enroll foreign exchange students, as provided in Subsection (2), particularly in schools with
158     declining or stable enrollments where the incremental cost of enrolling the foreign exchange
159     student may be minimal.
160          (4) The board shall make an annual report to the Legislature on the number of
161     exchange students and the number of interstate compact students sent to or received from
162     public schools outside the state.
163          (5) (a) A local school board or charter school governing board shall require each
164     approved exchange student agency to provide it with a sworn affidavit of compliance prior to
165     the beginning of each school year.
166          (b) The affidavit shall include the following assurances:
167          (i) that the agency has complied with all applicable policies of the board;
168          (ii) that a household study, including a background check of all adult residents, has
169     been made of each household where an exchange student is to reside, and that the study was of
170     sufficient scope to provide reasonable assurance that the exchange student will receive proper
171     care and supervision in a safe environment;
172          (iii) that host parents have received training appropriate to their positions, including
173     information about enhanced criminal penalties under Subsection 76-5-406[(10)](2)(j) for
174     persons who are in a position of special trust;
175          (iv) that a representative of the exchange student agency shall visit each student's place
176     of residence at least once each month during the student's stay in Utah;
177          (v) that the agency will cooperate with school and other public authorities to ensure
178     that no exchange student becomes an unreasonable burden upon the public schools or other
179     public agencies;
180          (vi) that each exchange student will be given in the exchange student's native language
181     names and telephone numbers of agency representatives and others who could be called at any
182     time if a serious problem occurs; and

183          (vii) that alternate placements are readily available so that no student is required to
184     remain in a household if conditions appear to exist which unreasonably endanger the student's
185     welfare.
186          (6) (a) A local school board or charter school governing board shall provide each
187     approved exchange student agency with a list of names and telephone numbers of individuals
188     not associated with the agency who could be called by an exchange student in the event of a
189     serious problem.
190          (b) The agency shall make a copy of the list available to each of its exchange students
191     in the exchange student's native language.
192          (7) Notwithstanding Subsection 53F-2-303(3)(a), a school district or charter school
193     shall enroll a foreign exchange student if the foreign exchange student:
194          (a) is sponsored by an agency approved by the State Board of Education;
195          (b) attends the same school during the same time period that another student from the
196     school is:
197          (i) sponsored by the same agency; and
198          (ii) enrolled in a school in a foreign country; and
199          (c) is enrolled in the school for one year or less.
200          Section 6. Section 62A-15-602 is amended to read:
201          62A-15-602. Definitions.
202          As used in this part, Part 7, Commitment of Persons Under Age 18 to Division of
203     Substance Abuse and Mental Health, Part 8, Interstate Compact on Mental Health, Part 9, Utah
204     Forensic Mental Health Facility, Part 10, Declaration for Mental Health Treatment, and Part
205     12, Essential Treatment and Intervention Act:
206          (1) "Adult" means an individual 18 years of age or older.
207          (2) "Approved treatment facility or program" means a treatment provider that meets the
208     standards described in Subsection 62A-15-103(2)(a)(v).
209          (3) "Commitment to the custody of a local mental health authority" means that an adult
210     is committed to the custody of the local mental health authority that governs the mental health
211     catchment area where the adult resides or is found.
212          (4) "Community mental health center" means an entity that provides treatment and
213     services to a resident of a designated geographical area, that operates by or under contract with

214     a local mental health authority, and that complies with state standards for community mental
215     health centers.
216          (5) "Designated examiner" means:
217          (a) a licensed physician, preferably a psychiatrist, who is designated by the division as
218     specially qualified by training or experience in the diagnosis of mental or related illness; or
219          (b) a licensed mental health professional designated by the division as specially
220     qualified by training and who has at least five years' continual experience in the treatment of
221     mental illness.
222          (6) "Designee" means a physician who has responsibility for medical functions
223     including admission and discharge, an employee of a local mental health authority, or an
224     employee of a person that has contracted with a local mental health authority to provide mental
225     health services under Section 17-43-304.
226          (7) "Essential treatment" and "essential treatment and intervention" mean court-ordered
227     treatment at a local substance abuse authority or an approved treatment facility or program for
228     the treatment of an adult's substance use disorder.
229          (8) "Harmful sexual conduct" means the following conduct upon an individual without
230     the individual's consent, including the nonconsensual circumstances described in Subsections
231     76-5-406[(1) through (12)] (2)(a) through (l):
232          (a) sexual intercourse;
233          (b) penetration, however slight, of the genital or anal opening of the individual;
234          (c) any sexual act involving the genitals or anus of the actor or the individual and the
235     mouth or anus of either individual, regardless of the gender of either participant; or
236          (d) any sexual act causing substantial emotional injury or bodily pain.
237          (9) "Institution" means a hospital or a health facility licensed under Section 26-21-8.
238          (10) "Local substance abuse authority" means the same as that term is defined in
239     Section 62A-15-102 and described in Section 17-43-201.
240          (11) "Mental health facility" means the Utah State Hospital or other facility that
241     provides mental health services under contract with the division, a local mental health
242     authority, a person that contracts with a local mental health authority, or a person that provides
243     acute inpatient psychiatric services to a patient.
244          (12) "Mental health officer" means an individual who is designated by a local mental

245     health authority as qualified by training and experience in the recognition and identification of
246     mental illness, to:
247          (a) apply for and provide certification for a temporary commitment; or
248          (b) assist in the arrangement of transportation to a designated mental health facility.
249          (13) "Mental illness" means:
250          (a) a psychiatric disorder that substantially impairs an individual's mental, emotional,
251     behavioral, or related functioning; or
252          (b) the same as that term is defined in:
253          (i) the current edition of the Diagnostic and Statistical Manual of Mental Disorders
254     published by the American Psychiatric Association; or
255          (ii) the current edition of the International Statistical Classification of Diseases and
256     Related Health Problems.
257          (14) "Patient" means an individual who is:
258          (a) under commitment to the custody or to the treatment services of a local mental
259     health authority; or
260          (b) undergoing essential treatment and intervention.
261          (15) "Physician" means an individual who is:
262          (a) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
263          (b) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical
264     Practice Act.
265          (16) "Serious bodily injury" means bodily injury that involves a substantial risk of
266     death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
267     protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
268          (17) "Substantial danger" means that due to mental illness, an individual is at serious
269     risk of:
270          (a) suicide;
271          (b) serious bodily self-injury;
272          (c) serious bodily injury because the individual is incapable of providing the basic
273     necessities of life, including food, clothing, or shelter;
274          (d) causing or attempting to cause serious bodily injury to another individual; or
275          (e) engaging in harmful sexual conduct.

276          (18) "Treatment" means psychotherapy, medication, including the administration of
277     psychotropic medication, or other medical treatments that are generally accepted medical or
278     psychosocial interventions for the purpose of restoring the patient to an optimal level of
279     functioning in the least restrictive environment.
280          Section 7. Section 76-3-406 is amended to read:
281          76-3-406. Crimes for which probation, suspension of sentence, lower category of
282     offense, or hospitalization may not be granted.
283          (1) Notwithstanding Sections 76-3-201 and 77-18-1 and Title 77, Chapter 16a,
284     Commitment and Treatment of Persons with a Mental Illness, except as provided in Section
285     76-5-406.5, probation may not be granted, the execution or imposition of sentence may not be
286     suspended, the court may not enter a judgment for a lower category of offense, and
287     hospitalization may not be ordered, the effect of which would in any way shorten the prison
288     sentence for [any person] an individual who commits a capital felony or a first degree felony
289     involving:
290          (a) Section 76-5-202, aggravated murder;
291          (b) Section 76-5-203, murder;
292          (c) Section 76-5-301.1, child kidnaping;
293          (d) Section 76-5-302, aggravated kidnaping;
294          (e) Section 76-5-402, rape, if the [person] individual is sentenced under Subsection
295     76-5-402(3)(b), (3)(c), or (4);
296          (f) Section 76-5-402.1, rape of a child;
297          (g) Section 76-5-402.2, object rape, if the [person] individual is sentenced under
298     Subsection 76-5-402.2(1)(b), (1)(c), or (2);
299          (h) Section 76-5-402.3, object rape of a child;
300          (i) Section 76-5-403, forcible sodomy, if the [person] individual is sentenced under
301     Subsection 76-5-403[(4)] (3)(b), [(4)] (3)(c), or [(5)] (4);
302          (j) Section 76-5-403.1, sodomy on a child;
303          (k) Section 76-5-404, forcible sexual abuse, if the [person] individual is sentenced
304     under Subsection 76-5-404(2)(b) or (3);
305          (l) Subsections 76-5-404.1(4) and (5), aggravated sexual abuse of a child;
306          (m) Section 76-5-405, aggravated sexual assault; or

307          (n) any attempt to commit a felony listed in Subsection (1)(f), (h), or (j).
308          (2) The provisions of this section do not apply if the sentencing court finds that the
309     defendant was under the age of 18 at the time of the offense and could have been adjudicated in
310     the juvenile court but for the delayed reporting or delayed filing of the Information, unless the
311     offenses are before the court pursuant to Section 78A-6-701, 78A-6-702, or 78A-6-703.
312          Section 8. Section 76-5-403 is amended to read:
313          76-5-403. Forcible sodomy.
314          (1) [A person commits sodomy when the actor engages in any sexual act with a person
315     who is 14 years of age or older involving the genitals of one person and mouth or anus of
316     another person, regardless of the sex of either participant.] As used in this section, "sodomy"
317     means engaging in any sexual act with an individual who is 14 years of age or older involving
318     the genitals of one individual and the mouth or anus of another individual, regardless of the sex
319     of either participant.
320          (2) [A person] An individual commits forcible sodomy when the actor commits
321     sodomy upon another without the other's consent.
322          [(3) Sodomy is a class B misdemeanor.]
323          [(4)] (3) Forcible sodomy is a first degree felony, punishable by a term of
324     imprisonment of:
325          (a) except as provided in Subsection [(4)] (3)(b) or (c), not less than five years and
326     which may be for life;
327          (b) except as provided in Subsection [(4)] (3)(c) or [(5)] (4), 15 years and which may
328     be for life, if the trier of fact finds that:
329          (i) during the course of the commission of the forcible sodomy the defendant caused
330     serious bodily injury to another; or
331          (ii) at the time of the commission of the rape, the defendant was younger than 18 years
332     of age and was previously convicted of a grievous sexual offense; or
333          (c) life without parole, if the trier of fact finds that at the time of the commission of the
334     forcible sodomy the defendant was previously convicted of a grievous sexual offense.
335          [(5)] (4) If, when imposing a sentence under Subsection [(4)] (3)(b), a court finds that a
336     lesser term than the term described in Subsection [(4)] (3)(b) is in the interests of justice and
337     states the reasons for this finding on the record, the court may impose a term of imprisonment

338     of not less than:
339          (a) 10 years and which may be for life; or
340          (b) six years and which may be for life.
341          [(6)] (5) The provisions of Subsection [(5)] (4) do not apply when [a person] an
342     individual is sentenced under Subsection [(4)] (3)(a) or (c).
343          [(7)] (6) Imprisonment under Subsection [(4)] (3)(b), [(4)] (3)(c), or [(5)] (4) is
344     mandatory in accordance with Section 76-3-406.
345          Section 9. Section 76-5-404 is amended to read:
346          76-5-404. Forcible sexual abuse.
347          (1) An individual commits forcible sexual abuse if the victim is 14 years of age or
348     older and, under circumstances not amounting to rape, object rape, forcible sodomy, or
349     attempted rape or forcible sodomy, the actor touches the anus, buttocks, pubic area, or any part
350     of the genitals of another, or touches the breast of a female, or otherwise takes indecent
351     liberties with another, with intent to cause substantial emotional or bodily pain to any
352     individual or with the intent to arouse or gratify the sexual desire of any individual, without the
353     consent of the other, regardless of the sex of any participant.
354          (2) Forcible sexual abuse is:
355          (a) except as provided in Subsection (2)(b), a felony of the second degree, punishable
356     by a term of imprisonment of not less than one year nor more than 15 years; or
357          (b) except as provided in Subsection (3), a felony of the first degree, punishable by a
358     term of imprisonment for 15 years and which may be for life, if the trier of fact finds that
359     during the course of the commission of the forcible sexual abuse the defendant caused serious
360     bodily injury to another.
361          (3) If, when imposing a sentence under Subsection (2)(b), a court finds that a lesser
362     term than the term described in Subsection (2)(b) is in the interests of justice and states the
363     reasons for this finding on the record, the court may impose a term of imprisonment of not less
364     than:
365          (a) 10 years and which may be for life; or
366          (b) six years and which may be for life.
367          (4) Imprisonment under Subsection (2)(b) or (3) is mandatory in accordance with
368     Section 76-3-406.

369          Section 10. Section 76-5-406 is amended to read:
370          76-5-406. Sexual offenses against the victim without consent of victim --
371     Circumstances.
372          (1) As used in this section:
373          (a) "Health professional" means an individual who is licensed or who holds the
374     individual out to be licensed, or who otherwise provides professional physical or mental health
375     services, diagnosis, treatment, or counseling, including an athletic trainer, physician,
376     osteopathic physician, nurse, dentist, physical therapist, chiropractor, mental health therapist,
377     social service worker, clinical social worker, certified social worker, marriage and family
378     therapist, professional counselor, psychiatrist, psychologist, psychiatric mental health nurse
379     specialist, or substance abuse counselor.
380          (b) "Religious counselor" means a minister, priest, rabbi, bishop, or other recognized
381     member of the clergy.
382          (c) "To retaliate" includes threats of physical force, kidnapping, or extortion.
383          (2) An act of sexual intercourse, rape, attempted rape, rape of a child, attempted rape of
384     a child, object rape, attempted object rape, object rape of a child, attempted object rape of a
385     child, [sodomy, attempted sodomy,] forcible sodomy, attempted forcible sodomy, sodomy on a
386     child, attempted sodomy on a child, forcible sexual abuse, attempted forcible sexual abuse,
387     sexual abuse of a child, attempted sexual abuse of a child, aggravated sexual abuse of a child,
388     attempted aggravated sexual abuse of a child, or simple sexual abuse is without consent of the
389     victim under any of the following circumstances:
390          [(1)] (a) the victim expresses lack of consent through words or conduct;
391          [(2)] (b) the actor overcomes the victim through the actual application of physical force
392     or violence;
393          [(3)] (c) the actor is able to overcome the victim through concealment or by the
394     element of surprise;
395          [(4) (a) (i)] (d) (i) the actor coerces the victim to submit by threatening to retaliate in
396     the immediate future against the victim or any other person, and the victim perceives at the
397     time that the actor has the ability to execute this threat; or
398          (ii) the actor coerces the victim to submit by threatening to retaliate in the future
399     against the victim or any other person, and the victim believes at the time that the actor has the

400     ability to execute this threat;
401          [(b) as used in this Subsection (4), "to retaliate" includes threats of physical force,
402     kidnapping, or extortion;]
403          [(5)] (e) the actor knows the victim is unconscious, unaware that the act is occurring, or
404     physically unable to resist;
405          [(6)] (f) the actor knows or reasonably should know that the victim has a mental
406     disease or defect, which renders the victim unable to:
407          [(a)] (i) appraise the nature of the act;
408          [(b)] (ii) resist the act;
409          [(c)] (iii) understand the possible consequences to the victim's health or safety; or
410          [(d)] (iv) appraise the nature of the relationship between the actor and the victim[.];
411          [(7)] (g) the actor knows that the victim submits or participates because the victim
412     erroneously believes that the actor is the victim's spouse;
413          [(8)] (h) the actor intentionally impaired the power of the victim to appraise or control
414     his or her conduct by administering any substance without the victim's knowledge;
415          [(9)] (i) the victim is younger than 14 years of age;
416          [(10)] (j) the victim is younger than 18 years of age and at the time of the offense the
417     actor was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a
418     position of special trust in relation to the victim as defined in Section 76-5-404.1;
419          [(11)] (k) the victim is 14 years of age or older, but younger than 18 years of age, and
420     the actor is more than three years older than the victim and entices or coerces the victim to
421     submit or participate, under circumstances not amounting to the force or threat required under
422     Subsection [(2) or (4)] (2)(b) or (d); or
423          [(12)] (l) the actor is a health professional or religious counselor, [as those terms are
424     defined in this Subsection (12),] the act is committed under the guise of providing professional
425     diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed
426     that the act was for medically or professionally appropriate diagnosis, counseling, or treatment
427     to the extent that resistance by the victim could not reasonably be expected to have been
428     manifested[; for purposes of this Subsection (12):]
429          [(a) "health professional" means an individual who is licensed or who holds himself or
430     herself out to be licensed, or who otherwise provides professional physical or mental health

431     services, diagnosis, treatment, or counseling including, but not limited to, a physician,
432     osteopathic physician, nurse, dentist, physical therapist, chiropractor, mental health therapist,
433     social service worker, clinical social worker, certified social worker, marriage and family
434     therapist, professional counselor, psychiatrist, psychologist, psychiatric mental health nurse
435     specialist, or substance abuse counselor; and]
436          [(b) "religious counselor" means a minister, priest, rabbi, bishop, or other recognized
437     member of the clergy].
438          Section 11. Section 76-5-407 is amended to read:
439          76-5-407. Applicability of part -- "Penetration" or "touching" sufficient to
440     constitute offense.
441          (1) The provisions of this part do not apply to consensual conduct between [persons]
442     individuals married to each other.
443          (2) In any prosecution for:
444          (a) the following offenses, any sexual penetration, however slight, is sufficient to
445     constitute the relevant element of the offense:
446          (i) unlawful sexual activity with a minor, a violation of Section 76-5-401, involving
447     sexual intercourse;
448          (ii) unlawful sexual conduct with a 16 or 17 year old, a violation of Section
449     76-5-401.2, involving sexual intercourse; or
450          (iii) rape, a violation of Section 76-5-402; or
451          (b) the following offenses, any touching, however slight, is sufficient to constitute the
452     relevant element of the offense:
453          (i) unlawful sexual activity with a minor, a violation of Section 76-5-401, involving
454     acts of sodomy;
455          (ii) unlawful sexual conduct with a 16 or 17 year old, a violation of Section
456     76-5-401.2, involving acts of sodomy;
457          [(iii) sodomy, a violation of Subsection 76-5-403(1);]
458          [(iv)] (iii) forcible sodomy, a violation of Subsection 76-5-403(2);
459          [(v)] (iv) rape of a child, a violation of Section 76-5-402.1; or
460          [(vi)] (v) object rape of a child, a violation of Section 76-5-402.3.
461          (3) In any prosecution for the following offenses, any touching, even if accomplished

462     through clothing, is sufficient to constitute the relevant element of the offense:
463          (a) sodomy on a child, a violation of Section 76-5-403.1; or
464          (b) sexual abuse of a child or aggravated sexual abuse of a child, a violation of Section
465     76-5-404.1.
466          Section 12. Section 76-6-412 is amended to read:
467          76-6-412. Theft -- Classification of offenses -- Action for treble damages.
468          (1) Theft of property and services as provided in this chapter is punishable:
469          (a) as a second degree felony if the:
470          (i) value of the property or services is or exceeds $5,000;
471          (ii) property stolen is a firearm or an operable motor vehicle; or
472          (iii) property is stolen from the person of another;
473          (b) as a third degree felony if:
474          (i) the value of the property or services is or exceeds $1,500 but is less than $5,000;
475          (ii) the value of the property or services is or exceeds $500 and the actor has been twice
476     before convicted of any of the following offenses, if each prior offense was committed within
477     10 years [of] before the date of the current conviction or the date of the offense upon which the
478     current conviction is based and at least one of those convictions is for a class A misdemeanor:
479          (A) any theft, any robbery, or any burglary with intent to commit theft;
480          (B) any offense under Title 76, Chapter 6, Part 5, Fraud; or
481          (C) any attempt to commit any offense under Subsection (1)(b)(ii)(A) or (B);
482          [(iii) in a case not amounting to a second degree felony, the property taken is a stallion,
483     mare, colt, gelding, cow, heifer, steer, ox, bull, calf, sheep, goat, mule, jack, jenny, swine,
484     poultry, or a fur-bearing animal raised for commercial purposes; or]
485          [(iv)] (iii) (A) the value of property or services is or exceeds $500 but is less than
486     $1,500;
487          (B) the theft occurs on a property where the offender has committed any theft within
488     the past five years; and
489          (C) the offender has received written notice from the merchant prohibiting the offender
490     from entering the property pursuant to Subsection 78B-3-108(4);
491          [(v)] (iv) the actor has been previously convicted of a felony violation of any of the
492     offenses listed in Subsections (1)(b)(ii)(A) through (1)(b)(ii)(C), if the prior offense was

493     committed within 10 years before the date of the current conviction or the date of the offense
494     upon which the current conviction is based;
495          (c) as a class A misdemeanor if:
496          (i) the value of the property stolen is or exceeds $500 but is less than $1,500;
497          (ii) (A) the value of property or services is less than $500;
498          (B) the theft occurs on a property where the offender has committed any theft within
499     the past five years; and
500          (C) the offender has received written notice from the merchant prohibiting the offender
501     from entering the property pursuant to Subsection 78B-3-108(4); or
502          (iii) the actor has been twice before convicted of any of the offenses listed in
503     Subsections (1)(b)(ii)(A) through (1)(b)(ii)(C), if each prior offense was committed within 10
504     years [of] before the date of the current conviction or the date of the offense upon which the
505     current conviction is based; or
506          (d) as a class B misdemeanor if the value of the property stolen is less than $500 and
507     the theft is not an offense under Subsection (1)(c).
508          (2) Any individual who violates Subsection 76-6-408(1) or Subsection 76-6-413(1), or
509     commits theft of [property described in Subsection 76-6-412(1)(b)(iii)] a stallion, mare, colt,
510     gelding, cow, heifer, steer, ox, bull, calf, sheep, goat, mule, jack, jenny, swine, poultry, or a
511     fur-bearing animal raised for commercial purposes, is civilly liable for three times the amount
512     of actual damages, if any sustained by the plaintiff, and for costs of suit and reasonable attorney
513     fees.
514          Section 13. Section 76-7-302 is amended to read:
515          76-7-302. Circumstances under which abortion authorized.
516          (1) As used in this section, "viable" means that the unborn child has reached a stage of
517     fetal development when the unborn child is potentially able to live outside the womb, as
518     determined by the attending physician to a reasonable degree of medical certainty.
519          (2) An abortion may be performed in this state only by a physician.
520          (3) An abortion may be performed in this state only under the following circumstances:
521          (a) the unborn child is not viable; or
522          (b) the unborn child is viable, if:
523          (i) the abortion is necessary to avert:

524          (A) the death of the woman on whom the abortion is performed; or
525          (B) a serious risk of substantial and irreversible impairment of a major bodily function
526     of the woman on whom the abortion is performed;
527          (ii) two physicians who practice maternal fetal medicine concur, in writing, in the
528     patient's medical record that the fetus has a defect that is uniformly diagnosable and uniformly
529     lethal; or
530          (iii) (A) the woman is pregnant as a result of:
531          (I) rape, as described in Section 76-5-402;
532          (II) rape of a child, as described in Section 76-5-402.1; or
533          (III) incest, as described in Subsection 76-5-406[(10)] (2)(j) or Section 76-7-102; and
534          (B) before the abortion is performed, the physician who performs the abortion:
535          (I) verifies that the incident described in Subsection (3)(b)(iii)(A) has been reported to
536     law enforcement; and
537          (II) complies with the requirements of Section 62A-4a-403.
538          (4) An abortion may be performed only in an abortion clinic or a hospital, unless it is
539     necessary to perform the abortion in another location due to a medical emergency.
540          Section 14. Section 76-7-305 is amended to read:
541          76-7-305. Informed consent requirements for abortion -- 72-hour wait mandatory
542     -- Exceptions.
543          (1) A person may not perform an abortion, unless, before performing the abortion, the
544     physician who will perform the abortion obtains a voluntary and informed written consent from
545     the woman on whom the abortion is performed, that is consistent with:
546          (a) Section 8.08 of the American Medical Association's Code of Medical Ethics,
547     Current Opinions; and
548          (b) the provisions of this section.
549          (2) Except as provided in Subsection (8), consent to an abortion is voluntary and
550     informed only if, at least 72 hours before the abortion:
551          (a) a staff member of an abortion clinic or hospital, physician, registered nurse, nurse
552     practitioner, advanced practice registered nurse, certified nurse midwife, genetic counselor, or
553     physician's assistant presents the information module to the pregnant woman;
554          (b) the pregnant woman views the entire information module and presents evidence to

555     the individual described in Subsection (2)(a) that the pregnant woman viewed the entire
556     information module;
557          (c) after receiving the evidence described in Subsection (2)(b), the individual described
558     in Subsection (2)(a):
559          (i) documents that the pregnant woman viewed the entire information module;
560          (ii) gives the pregnant woman, upon her request, a copy of the documentation
561     described in Subsection (2)(c)(i); and
562          (iii) provides a copy of the statement described in Subsection (2)(c)(i) to the physician
563     who is to perform the abortion, upon request of that physician or the pregnant woman;
564          (d) after the pregnant woman views the entire information module, the physician who
565     is to perform the abortion, the referring physician, a physician, a registered nurse, nurse
566     practitioner, advanced practice registered nurse, certified nurse midwife, genetic counselor, or
567     physician's assistant, in a face-to-face consultation in any location in the state, orally informs
568     the woman of:
569          (i) the nature of the proposed abortion procedure;
570          (ii) specifically how the procedure described in Subsection (2)(d)(i) will affect the
571     fetus;
572          (iii) the risks and alternatives to the abortion procedure or treatment;
573          (iv) the options and consequences of aborting a medication-induced abortion, if the
574     proposed abortion procedure is a medication-induced abortion;
575          (v) the probable gestational age and a description of the development of the unborn
576     child at the time the abortion would be performed;
577          (vi) the medical risks associated with carrying her child to term; and
578          (vii) the right to view an ultrasound of the unborn child, at no expense to the pregnant
579     woman, upon her request; and
580          (e) after the pregnant woman views the entire information module, a staff member of
581     the abortion clinic or hospital provides to the pregnant woman:
582          (i) on a document that the pregnant woman may take home:
583          (A) the address for the department's website described in Section 76-7-305.5; and
584          (B) a statement that the woman may request, from a staff member of the abortion clinic
585     or hospital where the woman viewed the information module, a printed copy of the material on

586     the department's website; and
587          (ii) a printed copy of the material on the department's website described in Section
588     76-7-305.5, if requested by the pregnant woman.
589          (3) Before performing an abortion, the physician who is to perform the abortion shall:
590          (a) in a face-to-face consultation, provide the information described in Subsection
591     (2)(d), unless the attending physician or referring physician is the individual who provided the
592     information required under Subsection (2)(d); and
593          (b) (i) obtain from the pregnant woman a written certification that the information
594     required to be provided under Subsection (2) and this Subsection (3) was provided in
595     accordance with the requirements of Subsection (2) and this Subsection (3); and
596          (ii) obtain a copy of the statement described in Subsection (2)(c)(i).
597          (4) When a serious medical emergency compels the performance of an abortion, the
598     physician shall inform the woman prior to the abortion, if possible, of the medical indications
599     supporting the physician's judgment that an abortion is necessary.
600          (5) If an ultrasound is performed on a woman before an abortion is performed, the
601     individual who performs the ultrasound, or another qualified individual, shall:
602          (a) inform the woman that the ultrasound images will be simultaneously displayed in a
603     manner to permit her to:
604          (i) view the images, if she chooses to view the images; or
605          (ii) not view the images, if she chooses not to view the images;
606          (b) simultaneously display the ultrasound images in order to permit the woman to:
607          (i) view the images, if she chooses to view the images; or
608          (ii) not view the images, if she chooses not to view the images;
609          (c) inform the woman that, if she desires, the person performing the ultrasound, or
610     another qualified person shall provide a detailed description of the ultrasound images,
611     including:
612          (i) the dimensions of the unborn child;
613          (ii) the presence of cardiac activity in the unborn child, if present and viewable; and
614          (iii) the presence of external body parts or internal organs, if present and viewable; and
615          (d) provide the detailed description described in Subsection [(6)] (5)(c), if the woman
616     requests it.

617          (6) The information described in Subsections (2), (3), and (5) is not required to be
618     provided to a pregnant woman under this section if the abortion is performed for a reason
619     described in:
620          (a) Subsection 76-7-302(3)(b)(i), if the treating physician and one other physician
621     concur, in writing, that the abortion is necessary to avert:
622          (i) the death of the woman on whom the abortion is performed; or
623          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
624     of the woman on whom the abortion is performed; or
625          (b) Subsection 76-7-302(3)(b)(ii).
626          (7) In addition to the criminal penalties described in this part, a physician who violates
627     the provisions of this section:
628          (a) is guilty of unprofessional conduct as defined in Section 58-67-102 or 58-68-102;
629     and
630          (b) shall be subject to:
631          (i) suspension or revocation of the physician's license for the practice of medicine and
632     surgery in accordance with Section 58-67-401 or 58-68-401; and
633          (ii) administrative penalties in accordance with Section 58-67-402 or 58-68-402.
634          (8) A physician is not guilty of violating this section for failure to furnish any of the
635     information described in Subsection (2) or (3), or for failing to comply with Subsection (5), if:
636          (a) the physician can demonstrate by a preponderance of the evidence that the
637     physician reasonably believed that furnishing the information would have resulted in a severely
638     adverse effect on the physical or mental health of the pregnant woman;
639          (b) in the physician's professional judgment, the abortion was necessary to avert:
640          (i) the death of the woman on whom the abortion is performed; or
641          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
642     of the woman on whom the abortion is performed;
643          (c) the pregnancy was the result of rape or rape of a child, as defined in Sections
644     76-5-402 and 76-5-402.1;
645          (d) the pregnancy was the result of incest, as defined in Subsection 76-5-406[(10)]
646     (2)(j) and Section 76-7-102; or
647          (e) at the time of the abortion, the pregnant woman was 14 years of age or younger.

648          (9) A physician who complies with the provisions of this section and Section
649     76-7-304.5 may not be held civilly liable to the physician's patient for failure to obtain
650     informed consent under Section 78B-3-406.
651          (10) (a) The department shall provide an ultrasound, in accordance with the provisions
652     of Subsection (5)(b), at no expense to the pregnant woman.
653          (b) A local health department shall refer a pregnant woman who requests an ultrasound
654     described in Subsection (10)(a) to the department.
655          (11) A physician is not guilty of violating this section if:
656          (a) the information described in Subsection (2) is provided less than 72 hours before
657     the physician performs the abortion; and
658          (b) in the physician's professional judgment, the abortion was necessary in a case
659     where:
660          (i) a ruptured membrane, documented by the attending or referring physician, will
661     cause a serious infection; or
662          (ii) a serious infection, documented by the attending or referring physician, will cause a
663     ruptured membrane.
664          Section 15. Section 76-10-1206 is amended to read:
665          76-10-1206. Dealing in material harmful to a minor -- Penalties -- Exemptions for
666     Internet service providers and hosting companies.
667          (1) A person is guilty of dealing in material harmful to minors when, knowing or
668     believing that [a person] an individual is a minor, or having negligently failed to determine the
669     proper age of a minor, the person intentionally:
670          (a) distributes or offers to distribute, or exhibits or offers to exhibit, to a minor or [a
671     person the actor] an individual whom the person believes to be a minor, any material harmful
672     to minors;
673          (b) produces, performs, or directs any performance, before a minor or [a person the
674     actor] an individual whom the person believes to be a minor, that is harmful to minors; or
675          (c) participates in any performance, before a minor or [a person the actor] an individual
676     whom the person believes to be a minor, that is harmful to minors.
677          (2) (a) [Each] Except as provided in Subsection (2)(b), each separate offense under this
678     section committed by a person 18 years of age or older is a third degree felony punishable by:

679          (i) a minimum mandatory fine of not less than $1,000, plus $10 for each article
680     exhibited up to the maximum allowed by law; and
681          (ii) incarceration, without suspension of sentence, for a term of not less than 14 days.
682          (b) Each separate offense under this section committed by a person 18 years of age or
683     older against a minor 16 years of age or older, but younger than 18 years of age, is a class A
684     misdemeanor if the person is less than seven years older than the minor at the time of the
685     offense.
686          [(b)] (c) Each separate offense under this section committed by a person 16 or 17 years
687     of age is a class A misdemeanor.
688          [(c)] (d) Each separate offense under this section committed by a person younger than
689     16 years of age is a class B misdemeanor.
690          [(d)] (e) Subsection (2)(a) supersedes Section 77-18-1.
691          (3) (a) [If] Except for a defendant described in Subsection (2)(b), if a defendant 18
692     years of age or older has been previously convicted or adjudicated to be under the jurisdiction
693     of the juvenile court under this section, each separate subsequent offense is a second degree
694     felony punishable by:
695          (i) a minimum mandatory fine of not less than $5,000, plus $10 for each article
696     exhibited up to the maximum allowed by law; and
697          (ii) incarceration, without suspension of sentence, for a term of not less than one year.
698          (b) If a defendant described in Subsection (2)(b) or a defendant younger than 18 years
699     of age has been previously convicted or adjudicated to be under the jurisdiction of the juvenile
700     court under this section, each separate subsequent offense is a third degree felony.
701          (c) Subsection (3)(a) supersedes Section 77-18-1.
702          (d) (i) This section does not apply to an Internet service provider, as defined in Section
703     76-10-1230, a provider of an electronic communications service as defined in 18 U.S.C. Sec.
704     2510, a telecommunications service, information service, or mobile service as defined in 47
705     U.S.C. Sec. 153, including a commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or
706     a cable operator as defined in 47 U.S.C. Sec. 522, if:
707          (A) the distribution of pornographic material by the Internet service provider occurs
708     only incidentally through the provider's function of:
709          (I) transmitting or routing data from one person to another person; or

710          (II) providing a connection between one person and another person;
711          (B) the provider does not intentionally aid or abet in the distribution of the
712     pornographic material; and
713          (C) the provider does not knowingly receive from or through a person who distributes
714     the pornographic material a fee greater than the fee generally charged by the provider, as a
715     specific condition for permitting the person to distribute the pornographic material.
716          (ii) This section does not apply to a hosting company, as defined in Section
717     76-10-1230, if:
718          (A) the distribution of pornographic material by the hosting company occurs only
719     incidentally through the hosting company's function of providing data storage space or data
720     caching to a person;
721          (B) the hosting company does not intentionally engage, aid, or abet in the distribution
722     of the pornographic material; and
723          (C) the hosting company does not knowingly receive from or through a person who
724     distributes the pornographic material a fee greater than the fee generally charged by the
725     provider, as a specific condition for permitting the person to distribute, store, or cache the
726     pornographic material.
727          (4) A service provider, as defined in Section 76-10-1230, is not negligent under this
728     section if it complies with Section 76-10-1231.
729          (5) A person 18 years of age or older who knowingly solicits, requests, commands,
730     encourages, or intentionally aids another person younger than 18 years of age to engage in
731     conduct in violation of Subsection (1) is guilty of a third degree felony and is subject to the
732     penalties under Subsection (2)(a).
733          Section 16. Section 76-10-1302 is amended to read:
734          76-10-1302. Prostitution.
735          (1) An individual is guilty of prostitution when the individual:
736          (a) engages, offers, or agrees to engage in any sexual activity with another individual
737     for a fee, or the functional equivalent of a fee;
738          (b) takes steps in arranging a meeting through any form of advertising, agreeing to
739     meet, and meeting at an arranged place for the purpose of sexual activity in exchange for a fee
740     or the functional equivalent of a fee; or

741          (c) loiters in or within view of any public place for the purpose of being hired to
742     engage in sexual activity.
743          (2) (a) Except as provided in Subsection (2)(b) [or] and Section 76-10-1309,
744     prostitution is a class B misdemeanor.
745          (b) Except as provided in Section 76-10-1309, an individual who is convicted a second
746     time, and on all subsequent convictions, of a subsequent offense of prostitution under this
747     section or under a local ordinance adopted in compliance with Section 76-10-1307, is guilty of
748     a class A misdemeanor.
749          (3) (a) As used in this Subsection (3):
750          (i) "Child" means the same as that term is defined in Section 76-10-1301.
751          (ii) "Child engaged in prostitution" means a child who engages in conduct described in
752     Subsection (1).
753          (iii) "Child engaged in sexual solicitation" means a child who offers or agrees to
754     commit or engage in any sexual activity with another person for a fee or the functional
755     equivalent of a fee under Subsection 76-10-1313(1)(a) or (c).
756          (iv) "Division" means the Division of Child and Family Services created in Section
757     62A-4a-103.
758          (v) "Receiving center" means the same as that term is defined in Section 62A-7-101.
759          (b) Upon encountering a child engaged in prostitution or sexual solicitation, a law
760     enforcement officer shall:
761          (i) conduct an investigation;
762          (ii) refer the child to the division;
763          (iii) if an arrest is made, bring the child to a receiving center, if available; and
764          (iv) contact the child's parent or guardian, if practicable.
765          (c) When law enforcement has referred the child to the division under Subsection
766     (3)(b)(ii):
767          (i) the division shall provide services to the child under Title 62A, Chapter 4a, Child
768     and Family Services; and
769          (ii) the child may not be subjected to delinquency proceedings under Title 62A,
770     Chapter 7, Juvenile Justice Services, and Section 78A-6-601 through Section 78A-6-704.
771          (4) A prosecutor may not prosecute an individual for a violation of Subsection (1) if

772     the individual engages in a violation of Subsection (1) at or near the time the individual
773     witnesses or is a victim of any of the following offenses, or an attempt to commit any of the
774     following offenses, and the individual reports the offense or attempt to law enforcement in
775     good faith:
776          (a) assault, Section 76-5-102;
777          (b) aggravated assault, Section 76-5-103;
778          (c) mayhem, Section 76-5-105;
779          (d) aggravated murder, murder, manslaughter, negligent homicide, child abuse
780     homicide, or homicide by assault under Title 76, Chapter 5, Part 2, Criminal Homicide;
781          (e) kidnapping, child kidnapping, aggravated kidnapping, human trafficking or
782     aggravated human trafficking, human smuggling or aggravated human smuggling, or human
783     trafficking of a child under Title 76, Chapter 5, Part 3, Kidnapping, Trafficking, and
784     Smuggling;
785          (f) rape, Section 76-5-402;
786          (g) rape of a child, Section 76-5-402.1;
787          (h) object rape, Section 76-5-402.2;
788          (i) object rape of a child, Section 76-5-402.3;
789          (j) forcible sodomy, Section 76-5-403;
790          (k) sodomy on a child, Section 76-5-403.1;
791          (l) forcible sexual abuse, Section 76-5-404;
792          (m) aggravated sexual abuse of a child or sexual abuse of a child, Section 76-5-404.1;
793          (n) aggravated sexual assault, Section 76-5-405;
794          (o) sexual exploitation of a minor, Section 76-5b-201;
795          (p) sexual exploitation of a vulnerable adult, Section 76-5b-202;
796          (q) aggravated burglary or burglary of a dwelling under Title 76, Chapter 6, Part 2,
797     Burglary and Criminal Trespass;
798          (r) aggravated robbery or robbery under Title 76, Chapter 6, Part 3, Robbery; or
799          (s) theft by extortion under Subsection 76-6-406(2)(a) or (b).
800          Section 17. Section 76-10-1313 is amended to read:
801          76-10-1313. Sexual solicitation -- Penalty.
802          (1) An individual is guilty of sexual solicitation when the individual:

803          (a) offers or agrees to commit any sexual activity with another individual for a fee, or
804     the functional equivalent of a fee;
805          (b) pays or offers or agrees to pay a fee or the functional equivalent of a fee to another
806     individual to commit any sexual activity; or
807          (c) with intent to engage in sexual activity for a fee or the functional equivalent of a fee
808     or to pay another individual to commit any sexual activity for a fee or the functional equivalent
809     of a fee engages in, offers or agrees to engage in, or requests or directs another to engage in any
810     of the following acts:
811          (i) exposure of an individual's genitals, the buttocks, the anus, the pubic area, or the
812     female breast below the top of the areola;
813          (ii) masturbation;
814          (iii) touching of an individual's genitals, the buttocks, the anus, the pubic area, or the
815     female breast; or
816          (iv) any act of lewdness.
817          (2) An intent to engage in sexual activity for a fee may be inferred from an individual's
818     engaging in, offering or agreeing to engage in, or requesting or directing another to engage in
819     any of the acts described in Subsection (1)(c) under the totality of the existing circumstances.
820          (3) [(a) Sexual solicitation is a class A misdemeanor, except under Subsection (4).]
821          [(b) An] Except as provided in Section 76-10-1309 and Subsections (4) and (5), an
822     individual who is convicted [a second time] of sexual solicitation under this section or under a
823     local ordinance adopted in compliance with Section 76-10-1307 is guilty of a class A
824     misdemeanor[, except as provided in Section 76-10-1309].
825          (4) An individual who is convicted a third time under this section or a local ordinance
826     adopted in compliance with Section 76-10-1307 is guilty of a third degree felony.
827          (5) If an individual commits an act of sexual solicitation and the individual solicited is
828     a child, the offense is a third degree felony if the solicitation does not amount to human
829     trafficking or human smuggling, a violation of Section 76-5-308, or aggravated human
830     trafficking or aggravated human smuggling, a violation of Section 76-5-310.
831          (6) A prosecutor may not prosecute an individual for a violation of Subsection (1) if
832     the individual engages in a violation of Subsection (1) at or near the time the individual
833     witnesses or is a victim of any of the offenses or an attempt to commit any of the offenses

834     described in Subsection 76-10-1302(4), and the individual reports the offense or attempt to law
835     enforcement in good faith.
836          Section 18. Section 77-41-107 is amended to read:
837          77-41-107. Penalties.
838          (1) An offender who knowingly fails to register under this chapter or provides false or
839     incomplete information is guilty of:
840          (a) a third degree felony and shall be sentenced to serve a term of incarceration for not
841     less than [90] 30 days and also at least one year of probation if:
842          (i) the offender is required to register for a felony conviction or adjudicated delinquent
843     for what would be a felony if the juvenile were an adult of an offense listed in Subsection
844     77-41-102(9)(a) or (17)(a); or
845          (ii) the offender is required to register for the offender's lifetime under Subsection
846     77-41-105(3)(c); or
847          (b) a class A misdemeanor and shall be sentenced to serve a term of incarceration for
848     not fewer than [90] 30 days and also at least one year of probation if the offender is required to
849     register for a misdemeanor conviction or is adjudicated delinquent for what would be a
850     misdemeanor if the juvenile were an adult of an offense listed in Subsection 77-41-102(9)(a) or
851     (17)(a).
852          (2) (a) Neither the court nor the Board of Pardons and Parole may release [a person] an
853     individual who violates this chapter from serving the term required under Subsection (1).
854          (b) This Subsection (2) supersedes any other provision of the law contrary to this
855     chapter.
856          (3) The offender shall register for an additional year for every year in which the
857     offender does not comply with the registration requirements of this chapter.
858          Section 19. Repealer.
859          This bill repeals:
860          Section 76-7-103, Adultery.