1     
SEX OFFENDER REGISTRY REVISIONS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Todd D. Weiler

5     
House Sponsor: Craig Hall

6     

7     LONG TITLE
8     General Description:
9          This bill makes changes to the process and requirements for individuals who petition
10     for removal from the Sex and Kidnap Offender Registry.
11     Highlighted Provisions:
12          This bill:
13          ▸     requires that the Department of Corrections automatically remove individuals from
14     the Sex and Kidnap Offender Registry who qualify;
15          ▸     provides that the department shall notify an individual who is removed that the
16     individual has been removed;
17          ▸     allows for an individual who has not been automatically removed from the registry
18     by the Department of Corrections but believes their offense is no longer registrable
19     to request removal;
20          ▸     removes the authority of the Department of Corrections to charge a fee to process a
21     request for removal;
22          ▸     removes the requirement that registrants must comply with all registration
23     requirements in order to be eligible for removal through petition; and
24          ▸     makes technical and conforming changes.
25     Money Appropriated in this Bill:
26          None
27     Other Special Clauses:
28          This bill provides a coordination clause.
29     Utah Code Sections Affected:
30     AMENDS:
31          77-41-112, as last amended by Laws of Utah 2019, Chapter 382
32          77-41-113, as enacted by Laws of Utah 2020, Chapter 237
33     Utah Code Sections Affected by Coordination Clause:
34          77-41-112, as last amended by Laws of Utah 2019, Chapter 382
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 77-41-112 is amended to read:
38          77-41-112. Removal from registry -- Requirements -- Procedure.
39          (1) An offender who is required to register with the Sex and Kidnap Offender Registry
40     may petition the court for an order removing the offender from the Sex and Kidnap Offender
41     Registry if:
42          (a) (i) the offender [is] was convicted of an offense described in Subsection (2);
43          (ii) at least five years have passed after the day on which the offender's sentence for the
44     offense [terminates] terminated;
45          (iii) the offense is the only offense for which the offender [is] was required to register;
46          (iv) the offender [is] has not been convicted of another offense, excluding a traffic
47     offense, [after] since the day on which the offender [is] was convicted of the offense for which
48     the offender is required to register, as evidenced by a certificate of eligibility issued by the
49     bureau;
50          (v) the offender successfully [completes] completed all treatment ordered by the court
51     or the Board of Pardons and Parole relating to the offense; and
52          (vi) the offender [pays] has paid all restitution ordered by the court or the Board of
53     Pardons and Parole relating to the offense; [and] or
54          [(vii) the offender complies with all registration requirements required under this
55     chapter at all times; or]
56          (b) (i) if the offender is required to register in accordance with Subsection
57     77-41-105(3)(a);
58          (ii) at least 10 years have passed after the later of:
59          (A) the day on which the offender [is] was placed on probation;
60          (B) the day on which the offender [is] was released from incarceration to parole;
61          (C) the day on which the offender's sentence [is] was terminated without parole;
62          (D) the day on which the offender [enters] entered a community-based residential
63     program; or
64          (E) for a minor, as defined in Section 78A-6-105, the day on which the division's
65     custody of the offender [is] was terminated;
66          (iii) the offender [is] has not been convicted of another offense that is a class A
67     misdemeanor, felony, or capital felony within the most recent 10-year period after the date
68     described in Subsection (1)(b)(ii), as evidenced by a certificate of eligibility issued by the
69     bureau;
70          (iv) the offender successfully [completes] completed all treatment ordered by the court
71     or the Board of Pardons and Parole relating to the offense; and
72          (v) the offender [pays] has paid all restitution ordered by the court or the Board of
73     Pardons and Parole relating to the offense[; and].
74          [(vi) the offender complies with all registration requirements required under this
75     chapter at all times.]
76          (2) The offenses referred to in Subsection (1)(a)(i) are:
77          (a) Section 76-4-401, enticing a minor, if the offense is a class A misdemeanor;
78          (b) Section 76-5-301, kidnapping;
79          (c) Section 76-5-304, unlawful detention, if the conviction of violating Section
80     76-5-304 is the only conviction for which the offender is required to register;
81          (d) Section 76-5-401, unlawful sexual activity with a minor if, at the time of the
82     offense, the offender is not more than 10 years older than the victim;
83          (e) Section 76-5-401.1, sexual abuse of a minor, if, at the time of the offense, the
84     offender is not more than 10 years older than the victim;
85          (f) Section 76-5-401.2, unlawful sexual conduct with a 16 or 17 year old, and at the
86     time of the offense, the offender is not more than 15 years older than the victim; or
87          (g) Section 76-9-702.7, voyeurism, if the offense is a class A misdemeanor.
88          (3) (a) (i) An offender seeking removal from the Sex and Kidnap Offender Registry
89     under this section shall apply for a certificate of eligibility from the bureau.
90          (ii) An offender who intentionally or knowingly provides false or misleading
91     information to the bureau when applying for a certificate of eligibility is guilty of a class B
92     misdemeanor and subject to prosecution under Section 76-8-504.6.
93          (iii) Regardless of whether the offender is prosecuted, the bureau may deny a certificate
94     of eligibility to an offender who provides false information on an application.
95          (b) (i) The bureau shall perform a check of records of governmental agencies,
96     including national criminal databases, to determine whether an offender is eligible to receive a
97     certificate of eligibility.
98          (ii) If the offender meets the requirements described in Subsection (1)(a) or (b), the
99     bureau shall issue a certificate of eligibility to the offender, which is valid for a period of 90
100     days after the day on which the bureau issues the certificate.
101          (iii) The bureau shall request information from the department regarding whether the
102     offender meets the requirements.
103          (iv) (A) Upon request from the bureau under Subsection (3)(b)(iii), the department
104     shall issue a document [that states whether the offender meets the requirements described in
105     Subsection (1)(a) or (b), which may be used by the bureau to determine if a certificate of
106     eligibility is appropriate] on whether the offender meets the requirements described in
107     Subsection (1)(a) or (b), which shall be used by the bureau to determine if a certificate of
108     eligibility is appropriate.
109          (B) The document from the department shall also include a statement regarding the
110     offender's compliance with all registration requirements under this chapter.
111          (v) The bureau shall provide a copy of the document provided to the bureau under
112     Subsection (3)(b)(iv) to the offender upon issuance of a certificate of eligibility.
113          (4) (a) (i) The bureau shall charge application and issuance fees for a certificate of
114     eligibility in accordance with the process in Section 63J-1-504.
115          (ii) The application fee shall be paid at the time the offender submits an application for
116     a certificate of eligibility to the bureau.
117          (iii) If the bureau determines that the issuance of a certificate of eligibility is
118     appropriate, the offender will be charged an additional fee for the issuance of a certificate of
119     eligibility.
120          (b) Funds generated under this Subsection (4) shall be deposited into the General Fund
121     as a dedicated credit by the department to cover the costs incurred in determining eligibility.
122          (5) (a) The offender shall file the petition, including original information, the court
123     docket, the certificate of eligibility from the bureau, and the document from the department
124     described in Subsection (3)(b)(iv) with the court, and deliver a copy of the petition to the office
125     of the prosecutor.
126          (b) Upon receipt of a petition for removal from the Sex and Kidnap Offender Registry,
127     the office of the prosecutor shall provide notice of the petition by first-class mail to the victim
128     at the most recent address of record on file or, if the victim is still a minor under 18 years of
129     age, to the parent or guardian of the victim.
130          (c) The notice described in Subsection (5)(b) shall include a copy of the petition, state
131     that the victim has a right to object to the removal of the offender from the registry, and
132     provide instructions for registering an objection with the court.
133          (d) The office of the prosecutor shall provide the following, if available, to the court
134     within 30 days after the day on which the office receives the petition:
135          (i) presentencing report;
136          (ii) an evaluation done as part of sentencing; and
137          (iii) any other information the office of the prosecutor feels the court should consider.
138          (e) The victim, or the victim's parent or guardian if the victim is a minor under 18 years
139     of age, may respond to the petition by filing a recommendation or objection with the court
140     within 45 days after the day on which the petition is mailed to the victim.
141          (6) (a) The court shall:
142          (i) review the petition and all documents submitted with the petition; and
143          (ii) hold a hearing if requested by the prosecutor or the victim.
144          (b) The court may grant the petition and order removal of the offender from the registry
145     if the court determines that the offender has met the requirements described in Subsection
146     (1)(a) or (b) and removal is not contrary to the interests of the public.
147          (c) In determining whether removal is contrary to the interests of the public, the court
148     may not consider removal unless the offender has substantially complied with all registration
149     requirements under this chapter at all times.
150          [(c)] (d) If the court grants the petition, the court shall forward a copy of the order
151     directing removal of the offender from the registry to the department and the office of the
152     prosecutor.
153          [(d)] (e) If the court denies the petition, the offender may not submit another petition
154     for three years.
155          (7) The court shall notify the victim and the Sex and Kidnap Offender Registry office
156     in the department of the court's decision within three days after the day on which the court
157     issues the court's decision in the same manner described in Subsection (5).
158          Section 2. Section 77-41-113 is amended to read:
159          77-41-113. Removal for offenses for which registration is no longer required.
160          (1) An individual who is currently on the Sex and Kidnap Offender Registry because of
161     a conviction for any of the following offenses [may contact the department and request
162     removal] shall be automatically removed from the registry by the department if the only offense
163     or offenses for which the individual is on the registry is listed in Subsection (2).
164          (2) This section applies to a conviction for the following offenses:
165          (a) a class B or class C misdemeanor for enticing a minor, Section 76-4-401;
166          (b) kidnapping, based upon Subsection 76-5-301(1)(a) or (b);
167          (c) child kidnapping, Section 76-5-301.1, if the offender was the natural parent of the
168     child victim;
169          (d) unlawful detention, Section 76-5-304;
170          (e) a third degree felony for unlawful sexual intercourse before 1986, or a class B
171     misdemeanor for unlawful sexual intercourse, Section 76-5-401; or
172          (f) sodomy, but not forcible sodomy, Section 76-5-403.
173          (3) The department shall notify any individual who has been removed from the registry
174     in accordance with Subsection (1). The notice shall include a statement that the individual is no
175     longer required to register as a sex offender.
176          (4) An individual who is currently on the Sex and Kidnap Offender Registry may
177     submit a request to the department to be removed from the registry.
178          [(3)] (5) The department, upon receipt of a request for removal from the registry shall:
179          (a) check the registry for the individual's current status;
180          (b) determine whether the individual qualifies for removal based upon this section; and
181          (c) notify the individual in writing of the department's determination and whether the
182     individual:
183          (i) qualifies for removal from the registry; or
184          (ii) does not qualify for removal.
185          [(4)] (6) If the department determines that the individual qualifies for removal from the
186     registry, the department shall remove the offender from the registry.
187          [(5)] (7) If the department determines that the individual does not qualify for removal
188     from the registry, the department shall provide an explanation in writing for the department's
189     determination. The department's determination is final and not subject to administrative review.
190          [(6)] (8) Neither the department nor any employee may be civilly liable for a
191     determination made in good faith in accordance with this section.
192          [(7)] (9) The department shall provide a response to a request for removal within 30
193     days of receipt of the request [and payment of the fee]. If the response cannot be provided
194     within 30 days, the department shall notify the individual that the response may be delayed up
195     to 30 additional days.
196          [(8) The department may charge a fee, not to exceed $25, for a request for removal.]
197          Section 3. Coordinating S.B. 165 with S.B. 215 -- Technical amendment.
198          If this S.B. 165 and S.B. 215, Sex Offender Registry Amendments, both pass and
199     become law, the Legislature intends that the Office of Legislative Research and General
200     Counsel, when preparing the Utah Code database for publication, amend Subsection
201     77-41-112(3)(b)(iv)(A) in S.B. 165 to read:
202          (A) Upon request from the bureau under Subsection (3)(b)(iii), the department shall
203     issue a document [that states whether the offender meets the requirements described in
204     Subsection (1)(a) or (b), which may be used by the bureau to determine if a certificate of
205     eligibility is appropriate] on whether the offender meets the requirements described in
206     Subsection (1)(a), (b), or (c), which shall be used by the bureau to determine if a certificate of
207     eligibility is appropriate.