1     
SEX OFFENSE AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Ken Ivory

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill provides that sexual contact is without the consent of the victim if the victim is
10     over the age of 18 and the actor holds a position of special trust.
11     Highlighted Provisions:
12          This bill:
13          ▸     expands the definition of "position of special trust" to a teacher, instructor, or
14     teaching assistant at an institution of higher education;
15          ▸     provides that sexual contact is without consent if the victim is over the age of 18
16     and the actor holds a position of special trust;
17          ▸     requires that the actor have the ability to adversely affect the victim's livelihood; and
18          ▸     makes technical corrections.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          31A-22-726, as last amended by Laws of Utah 2015, Chapter 283
26          53G-6-707, as renumbered and amended by Laws of Utah 2018, Chapter 3
27          62A-15-602, as last amended by Laws of Utah 2018, Chapter 322

28          76-5-406, as last amended by Laws of Utah 2018, Chapter 176
29          76-7-302, as last amended by Laws of Utah 2018, Chapter 282
30          76-7-305, as last amended by Laws of Utah 2018, Chapter 282
31     

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 31A-22-726 is amended to read:
34          31A-22-726. Abortion coverage restriction in health benefit plan and on health
35     insurance exchange.
36          (1) As used in this section, "permitted abortion coverage" means coverage for abortion:
37          (a) that is necessary to avert:
38          (i) the death of the woman on whom the abortion is performed; or
39          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
40     of the woman on whom the abortion is performed;
41          (b) of a fetus that has a defect that is documented by a physician or physicians to be
42     uniformly diagnosable and uniformly lethal; or
43          (c) where the woman is pregnant as a result of:
44          (i) rape, as described in Section 76-5-402;
45          (ii) rape of a child, as described in Section 76-5-402.1; or
46          (iii) incest, as described in Subsection 76-5-406[(10)](1)(j) or Section 76-7-102.
47          (2) A person may not offer coverage for an abortion in a health benefit plan, unless the
48     coverage is a type of permitted abortion coverage.
49          (3) A person may not offer a health benefit plan that provides coverage for an abortion
50     in a health insurance exchange [created under Title 63N, Chapter 11, Health System Reform
51     Act,] unless the coverage is a type of permitted abortion coverage.
52          (4) A person may not offer a health benefit plan that provides coverage for an abortion
53     in a health insurance exchange created under the federal Patient Protection and Affordable Care
54     Act, 111 P.L. 148, unless the coverage is a type of permitted abortion coverage.
55          Section 2. Section 53G-6-707 is amended to read:
56          53G-6-707. Interstate compact students -- Inclusion in attendance count --
57     Foreign exchange students -- Annual report -- Requirements for exchange student
58     agencies.

59          (1) A school district or charter school may include the following students in the
60     district's or school's membership and attendance count for the purpose of apportionment of
61     state money:
62          (a) a student enrolled under an interstate compact, established between the State Board
63     of Education and the state education authority of another state, under which a student from one
64     compact state would be permitted to enroll in a public school in the other compact state on the
65     same basis as a resident student of the receiving state; or
66          (b) a student receiving services under Title 62A, Chapter 4a, Part 7, Interstate Compact
67     on Placement of Children.
68          (2) A school district or charter school may:
69          (a) enroll foreign exchange students that do not qualify for state money; and
70          (b) pay for the costs of those students with other funds available to the school district
71     or charter school.
72          (3) Due to the benefits to all students of having the opportunity to become familiar
73     with individuals from diverse backgrounds and cultures, school districts are encouraged to
74     enroll foreign exchange students, as provided in Subsection (2), particularly in schools with
75     declining or stable enrollments where the incremental cost of enrolling the foreign exchange
76     student may be minimal.
77          (4) The board shall make an annual report to the Legislature on the number of
78     exchange students and the number of interstate compact students sent to or received from
79     public schools outside the state.
80          (5) (a) A local school board or charter school governing board shall require each
81     approved exchange student agency to provide it with a sworn affidavit of compliance prior to
82     the beginning of each school year.
83          (b) The affidavit shall include the following assurances:
84          (i) that the agency has complied with all applicable policies of the board;
85          (ii) that a household study, including a background check of all adult residents, has
86     been made of each household where an exchange student is to reside, and that the study was of
87     sufficient scope to provide reasonable assurance that the exchange student will receive proper
88     care and supervision in a safe environment;
89          (iii) that host parents have received training appropriate to their positions, including

90     information about enhanced criminal penalties under Subsection 76-5-406[(10)](1)(j) for
91     persons who are in a position of special trust;
92          (iv) that a representative of the exchange student agency shall visit each student's place
93     of residence at least once each month during the student's stay in Utah;
94          (v) that the agency will cooperate with school and other public authorities to ensure
95     that no exchange student becomes an unreasonable burden upon the public schools or other
96     public agencies;
97          (vi) that each exchange student will be given in the exchange student's native language
98     names and telephone numbers of agency representatives and others who could be called at any
99     time if a serious problem occurs; and
100          (vii) that alternate placements are readily available so that no student is required to
101     remain in a household if conditions appear to exist which unreasonably endanger the student's
102     welfare.
103          (6) (a) A local school board or charter school governing board shall provide each
104     approved exchange student agency with a list of names and telephone numbers of individuals
105     not associated with the agency who could be called by an exchange student in the event of a
106     serious problem.
107          (b) The agency shall make a copy of the list available to each of its exchange students
108     in the exchange student's native language.
109          (7) Notwithstanding Subsection 53F-2-303(3)(a), a school district or charter school
110     shall enroll a foreign exchange student if the foreign exchange student:
111          (a) is sponsored by an agency approved by the State Board of Education;
112          (b) attends the same school during the same time period that another student from the
113     school is:
114          (i) sponsored by the same agency; and
115          (ii) enrolled in a school in a foreign country; and
116          (c) is enrolled in the school for one year or less.
117          Section 3. Section 62A-15-602 is amended to read:
118          62A-15-602. Definitions.
119          As used in this part, Part 7, Commitment of Persons Under Age 18 to Division of
120     Substance Abuse and Mental Health, Part 8, Interstate Compact on Mental Health, Part 9, Utah

121     Forensic Mental Health Facility, Part 10, Declaration for Mental Health Treatment, and Part
122     12, Essential Treatment and Intervention Act:
123          (1) "Adult" means an individual 18 years of age or older.
124          (2) "Approved treatment facility or program" means a treatment provider that meets the
125     standards described in Subsection 62A-15-103(2)(a)(v).
126          (3) "Commitment to the custody of a local mental health authority" means that an adult
127     is committed to the custody of the local mental health authority that governs the mental health
128     catchment area where the adult resides or is found.
129          (4) "Community mental health center" means an entity that provides treatment and
130     services to a resident of a designated geographical area, that operates by or under contract with
131     a local mental health authority, and that complies with state standards for community mental
132     health centers.
133          (5) "Designated examiner" means:
134          (a) a licensed physician, preferably a psychiatrist, who is designated by the division as
135     specially qualified by training or experience in the diagnosis of mental or related illness; or
136          (b) a licensed mental health professional designated by the division as specially
137     qualified by training and who has at least five years' continual experience in the treatment of
138     mental illness.
139          (6) "Designee" means a physician who has responsibility for medical functions
140     including admission and discharge, an employee of a local mental health authority, or an
141     employee of a person that has contracted with a local mental health authority to provide mental
142     health services under Section 17-43-304.
143          (7) "Essential treatment" and "essential treatment and intervention" mean court-ordered
144     treatment at a local substance abuse authority or an approved treatment facility or program for
145     the treatment of an adult's substance use disorder.
146          (8) "Harmful sexual conduct" means the following conduct upon an individual without
147     the individual's consent, including the nonconsensual circumstances described in [Subsections]
148     Section 76-5-406[(1) through (12)]:
149          (a) sexual intercourse;
150          (b) penetration, however slight, of the genital or anal opening of the individual;
151          (c) any sexual act involving the genitals or anus of the actor or the individual and the

152     mouth or anus of either individual, regardless of the gender of either participant; or
153          (d) any sexual act causing substantial emotional injury or bodily pain.
154          (9) "Institution" means a hospital or a health facility licensed under Section 26-21-8.
155          (10) "Local substance abuse authority" means the same as that term is defined in
156     Section 62A-15-102 and described in Section 17-43-201.
157          (11) "Mental health facility" means the Utah State Hospital or other facility that
158     provides mental health services under contract with the division, a local mental health
159     authority, a person that contracts with a local mental health authority, or a person that provides
160     acute inpatient psychiatric services to a patient.
161          (12) "Mental health officer" means an individual who is designated by a local mental
162     health authority as qualified by training and experience in the recognition and identification of
163     mental illness, to:
164          (a) apply for and provide certification for a temporary commitment; or
165          (b) assist in the arrangement of transportation to a designated mental health facility.
166          (13) "Mental illness" means:
167          (a) a psychiatric disorder that substantially impairs an individual's mental, emotional,
168     behavioral, or related functioning; or
169          (b) the same as that term is defined in:
170          (i) the current edition of the Diagnostic and Statistical Manual of Mental Disorders
171     published by the American Psychiatric Association; or
172          (ii) the current edition of the International Statistical Classification of Diseases and
173     Related Health Problems.
174          (14) "Patient" means an individual who is:
175          (a) under commitment to the custody or to the treatment services of a local mental
176     health authority; or
177          (b) undergoing essential treatment and intervention.
178          (15) "Physician" means an individual who is:
179          (a) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
180          (b) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical
181     Practice Act.
182          (16) "Serious bodily injury" means bodily injury that involves a substantial risk of

183     death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
184     protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
185          (17) "Substantial danger" means that due to mental illness, an individual is at serious
186     risk of:
187          (a) suicide;
188          (b) serious bodily self-injury;
189          (c) serious bodily injury because the individual is incapable of providing the basic
190     necessities of life, including food, clothing, or shelter;
191          (d) causing or attempting to cause serious bodily injury to another individual; or
192          (e) engaging in harmful sexual conduct.
193          (18) "Treatment" means psychotherapy, medication, including the administration of
194     psychotropic medication, or other medical treatments that are generally accepted medical or
195     psychosocial interventions for the purpose of restoring the patient to an optimal level of
196     functioning in the least restrictive environment.
197          Section 4. Section 76-5-406 is amended to read:
198          76-5-406. Sexual offenses against the victim without consent of victim --
199     Circumstances.
200          (1) An act of sexual intercourse, rape, attempted rape, rape of a child, attempted rape of
201     a child, object rape, attempted object rape, object rape of a child, attempted object rape of a
202     child, sodomy, attempted sodomy, forcible sodomy, attempted forcible sodomy, sodomy on a
203     child, attempted sodomy on a child, forcible sexual abuse, attempted forcible sexual abuse,
204     sexual abuse of a child, attempted sexual abuse of a child, aggravated sexual abuse of a child,
205     attempted aggravated sexual abuse of a child, or simple sexual abuse is without consent of the
206     victim under any of the following circumstances:
207          [(1)] (a) the victim expresses lack of consent through words or conduct;
208          [(2)] (b) the actor overcomes the victim through the actual application of physical force
209     or violence;
210          [(3)] (c) the actor is able to overcome the victim through concealment or by the
211     element of surprise;
212          [(4) (a)] (d) (i) the actor coerces the victim to submit by threatening to retaliate in the
213     immediate future against the victim or any other person, and the victim perceives at the time

214     that the actor has the ability to execute this threat; [or]
215          (ii) the actor coerces the victim to submit by threatening to retaliate in the future
216     against the victim or any other person, and the victim believes at the time that the actor has the
217     ability to execute this threat; or
218          [(b)] (iii) as used in this Subsection [(4),] (1)(d) "to retaliate" includes threats of
219     physical force, kidnapping, or extortion;
220          [(5)] (e) the actor knows the victim is unconscious, unaware that the act is occurring, or
221     physically unable to resist;
222          [(6)] (f) the actor knows or reasonably should know that the victim has a mental
223     disease or defect, which renders the victim unable to:
224          [(a)] (i) appraise the nature of the act;
225          [(b)] (ii) resist the act;
226          [(c)] (iii) understand the possible consequences to the victim's health or safety; or
227          [(d)] (iv) appraise the nature of the relationship between the actor and the victim[.];
228          [(7)] (g) the actor knows that the victim submits or participates because the victim
229     erroneously believes that the actor is the victim's spouse;
230          [(8)] (h) the actor intentionally impaired the power of the victim to appraise or control
231     his or her conduct by administering any substance without the victim's knowledge;
232          [(9)] (i) the victim is younger than 14 years of age;
233          [(10)] (j) the victim is younger than 18 years of age and at the time of the offense the
234     actor was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a
235     position of special trust in relation to the victim as defined in Section 76-5-404.1;
236          (k) the victim is 18 years of age or older at the time of the act, the actor occupied a
237     position of special trust as defined in Subsection (2), and the actor at the time of the act had the
238     ability to adversely affect the victim's employment, educational opportunities, livelihood,
239     access to health care, or ability to gain pay or promotion opportunities;
240          [(11)] (l) the victim is 14 years of age or older, but younger than 18 years of age, and
241     the actor is more than three years older than the victim and entices or coerces the victim to
242     submit or participate, under circumstances not amounting to the force or threat required under
243     Subsection (2) or (4); or
244          [(12)] (m) the actor is a health professional or religious counselor, as those terms are

245     defined in [this] Subsection [(12),] (2): and
246          (i) the act is committed under the guise of providing professional diagnosis,
247     counseling, or treatment[,]; and
248          (ii) at the time of the act the victim reasonably believed that the act was for medically
249     or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by
250     the victim could not reasonably be expected to have been manifested[; for].
251          (2) For purposes of [this] Subsection [(12)] (1):
252          (a) "health professional" means an individual who is licensed or who holds himself or
253     herself out to be licensed, or who otherwise provides professional physical or mental health
254     services, diagnosis, treatment, or counseling including, but not limited to, a physician,
255     osteopathic physician, nurse, dentist, physical therapist, chiropractor, mental health therapist,
256     social service worker, clinical social worker, certified social worker, marriage and family
257     therapist, professional counselor, psychiatrist, psychologist, psychiatric mental health nurse
258     specialist, or substance abuse counselor; [and]
259          (b) "livelihood" means the means of supporting an individual's basic necessities of life,
260     including food, clothing, or shelter;
261          (c) "position of special trust" includes a teacher, instructor, professor, or teaching
262     assistant at a public or private institution of higher education in addition to the same actors as
263     listed in Section 76-5-404.1; and
264          [(b)] (d) "religious counselor" means a minister, priest, rabbi, bishop, or other
265     recognized member of the clergy.
266          Section 5. Section 76-7-302 is amended to read:
267          76-7-302. Circumstances under which abortion authorized.
268          (1) As used in this section, "viable" means that the unborn child has reached a stage of
269     fetal development when the unborn child is potentially able to live outside the womb, as
270     determined by the attending physician to a reasonable degree of medical certainty.
271          (2) An abortion may be performed in this state only by a physician.
272          (3) An abortion may be performed in this state only under the following circumstances:
273          (a) the unborn child is not viable; or
274          (b) the unborn child is viable, if:
275          (i) the abortion is necessary to avert:

276          (A) the death of the woman on whom the abortion is performed; or
277          (B) a serious risk of substantial and irreversible impairment of a major bodily function
278     of the woman on whom the abortion is performed;
279          (ii) two physicians who practice maternal fetal medicine concur, in writing, in the
280     patient's medical record that the fetus has a defect that is uniformly diagnosable and uniformly
281     lethal; or
282          (iii) (A) the woman is pregnant as a result of:
283          (I) rape, as described in Section 76-5-402;
284          (II) rape of a child, as described in Section 76-5-402.1; or
285          (III) incest, as described in Subsection 76-5-406[(10)](1)(j) or Section 76-7-102; and
286          (B) before the abortion is performed, the physician who performs the abortion:
287          (I) verifies that the incident described in Subsection (3)(b)(iii)(A) has been reported to
288     law enforcement; and
289          (II) complies with the requirements of Section 62A-4a-403.
290          (4) An abortion may be performed only in an abortion clinic or a hospital, unless it is
291     necessary to perform the abortion in another location due to a medical emergency.
292          Section 6. Section 76-7-305 is amended to read:
293          76-7-305. Informed consent requirements for abortion -- 72-hour wait mandatory
294     -- Exceptions.
295          (1) A person may not perform an abortion, unless, before performing the abortion, the
296     physician who will perform the abortion obtains a voluntary and informed written consent from
297     the woman on whom the abortion is performed, that is consistent with:
298          (a) Section 8.08 of the American Medical Association's Code of Medical Ethics,
299     Current Opinions; and
300          (b) the provisions of this section.
301          (2) Except as provided in Subsection (8), consent to an abortion is voluntary and
302     informed only if, at least 72 hours before the abortion:
303          (a) a staff member of an abortion clinic or hospital, physician, registered nurse, nurse
304     practitioner, advanced practice registered nurse, certified nurse midwife, genetic counselor, or
305     physician's assistant presents the information module to the pregnant woman;
306          (b) the pregnant woman views the entire information module and presents evidence to

307     the individual described in Subsection (2)(a) that the pregnant woman viewed the entire
308     information module;
309          (c) after receiving the evidence described in Subsection (2)(b), the individual described
310     in Subsection (2)(a):
311          (i) documents that the pregnant woman viewed the entire information module;
312          (ii) gives the pregnant woman, upon her request, a copy of the documentation
313     described in Subsection (2)(c)(i); and
314          (iii) provides a copy of the statement described in Subsection (2)(c)(i) to the physician
315     who is to perform the abortion, upon request of that physician or the pregnant woman;
316          (d) after the pregnant woman views the entire information module, the physician who
317     is to perform the abortion, the referring physician, a physician, a registered nurse, nurse
318     practitioner, advanced practice registered nurse, certified nurse midwife, genetic counselor, or
319     physician's assistant, in a face-to-face consultation in any location in the state, orally informs
320     the woman of:
321          (i) the nature of the proposed abortion procedure;
322          (ii) specifically how the procedure described in Subsection (2)(d)(i) will affect the
323     fetus;
324          (iii) the risks and alternatives to the abortion procedure or treatment;
325          (iv) the options and consequences of aborting a medication-induced abortion, if the
326     proposed abortion procedure is a medication-induced abortion;
327          (v) the probable gestational age and a description of the development of the unborn
328     child at the time the abortion would be performed;
329          (vi) the medical risks associated with carrying her child to term; and
330          (vii) the right to view an ultrasound of the unborn child, at no expense to the pregnant
331     woman, upon her request; and
332          (e) after the pregnant woman views the entire information module, a staff member of
333     the abortion clinic or hospital provides to the pregnant woman:
334          (i) on a document that the pregnant woman may take home:
335          (A) the address for the department's website described in Section 76-7-305.5; and
336          (B) a statement that the woman may request, from a staff member of the abortion clinic
337     or hospital where the woman viewed the information module, a printed copy of the material on

338     the department's website; and
339          (ii) a printed copy of the material on the department's website described in Section
340     76-7-305.5, if requested by the pregnant woman.
341          (3) Before performing an abortion, the physician who is to perform the abortion shall:
342          (a) in a face-to-face consultation, provide the information described in Subsection
343     (2)(d), unless the attending physician or referring physician is the individual who provided the
344     information required under Subsection (2)(d); and
345          (b) (i) obtain from the pregnant woman a written certification that the information
346     required to be provided under Subsection (2) and this Subsection (3) was provided in
347     accordance with the requirements of Subsection (2) and this Subsection (3); and
348          (ii) obtain a copy of the statement described in Subsection (2)(c)(i).
349          (4) When a serious medical emergency compels the performance of an abortion, the
350     physician shall inform the woman prior to the abortion, if possible, of the medical indications
351     supporting the physician's judgment that an abortion is necessary.
352          (5) If an ultrasound is performed on a woman before an abortion is performed, the
353     individual who performs the ultrasound, or another qualified individual, shall:
354          (a) inform the woman that the ultrasound images will be simultaneously displayed in a
355     manner to permit her to:
356          (i) view the images, if she chooses to view the images; or
357          (ii) not view the images, if she chooses not to view the images;
358          (b) simultaneously display the ultrasound images in order to permit the woman to:
359          (i) view the images, if she chooses to view the images; or
360          (ii) not view the images, if she chooses not to view the images;
361          (c) inform the woman that, if she desires, the person performing the ultrasound, or
362     another qualified person shall provide a detailed description of the ultrasound images,
363     including:
364          (i) the dimensions of the unborn child;
365          (ii) the presence of cardiac activity in the unborn child, if present and viewable; and
366          (iii) the presence of external body parts or internal organs, if present and viewable; and
367          (d) provide the detailed description described in Subsection [(6)] (5)(c), if the woman
368     requests it.

369          (6) The information described in Subsections (2), (3), and (5) is not required to be
370     provided to a pregnant woman under this section if the abortion is performed for a reason
371     described in:
372          (a) Subsection 76-7-302(3)(b)(i), if the treating physician and one other physician
373     concur, in writing, that the abortion is necessary to avert:
374          (i) the death of the woman on whom the abortion is performed; or
375          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
376     of the woman on whom the abortion is performed; or
377          (b) Subsection 76-7-302(3)(b)(ii).
378          (7) In addition to the criminal penalties described in this part, a physician who violates
379     the provisions of this section:
380          (a) is guilty of unprofessional conduct as defined in Section 58-67-102 or 58-68-102;
381     and
382          (b) shall be subject to:
383          (i) suspension or revocation of the physician's license for the practice of medicine and
384     surgery in accordance with Section 58-67-401 or 58-68-401; and
385          (ii) administrative penalties in accordance with Section 58-67-402 or 58-68-402.
386          (8) A physician is not guilty of violating this section for failure to furnish any of the
387     information described in Subsection (2) or (3), or for failing to comply with Subsection (5), if:
388          (a) the physician can demonstrate by a preponderance of the evidence that the
389     physician reasonably believed that furnishing the information would have resulted in a severely
390     adverse effect on the physical or mental health of the pregnant woman;
391          (b) in the physician's professional judgment, the abortion was necessary to avert:
392          (i) the death of the woman on whom the abortion is performed; or
393          (ii) a serious risk of substantial and irreversible impairment of a major bodily function
394     of the woman on whom the abortion is performed;
395          (c) the pregnancy was the result of rape or rape of a child, as defined in Sections
396     76-5-402 and 76-5-402.1;
397          (d) the pregnancy was the result of incest, as defined in Subsection 76-5-406[(10)]
398     (1)(j) and Section 76-7-102; or
399          (e) at the time of the abortion, the pregnant woman was 14 years of age or younger.

400          (9) A physician who complies with the provisions of this section and Section
401     76-7-304.5 may not be held civilly liable to the physician's patient for failure to obtain
402     informed consent under Section 78B-3-406.
403          (10) (a) The department shall provide an ultrasound, in accordance with the provisions
404     of Subsection (5)(b), at no expense to the pregnant woman.
405          (b) A local health department shall refer a pregnant woman who requests an ultrasound
406     described in Subsection (10)(a) to the department.
407          (11) A physician is not guilty of violating this section if:
408          (a) the information described in Subsection (2) is provided less than 72 hours before
409     the physician performs the abortion; and
410          (b) in the physician's professional judgment, the abortion was necessary in a case
411     where:
412          (i) a ruptured membrane, documented by the attending or referring physician, will
413     cause a serious infection; or
414          (ii) a serious infection, documented by the attending or referring physician, will cause a
415     ruptured membrane.