1
2
3
4
5
6
7 LONG TITLE
8 General Description:
9 This bill concerns the Sex and Kidnap Offender Registry.
10 Highlighted Provisions:
11 This bill:
12 ▸ requires the Board of Pardons and Parole, after granting a pardon for a conviction
13 that requires an individual to be registered on the Sex and Kidnap Offender
14 Registry, to send an order directing the Department of Corrections to remove the
15 individual from the registry;
16 ▸ allows certain offenders on the Sex and Kidnap Offender Registry to petition the
17 court for removal from the registry under specified conditions;
18 ▸ establishes the burden of proof and factors that a court may consider in determining
19 whether to grant certain petitions for removal from the Sex and Kidnap Offender
20 Registry;
21 ▸ requires the Department of Corrections to remove an individual from the Sex and
22 Kidnap Offender Registry when the individual's conviction that requires registration
23 has been pardoned;
24 ▸ requires the Department of Corrections to automatically remove qualifying
25 individuals from the Sex and Kidnap Offender Registry;
26 ▸ allows for an individual who has not been automatically removed from the registry
27 by the Department of Corrections but believes that the individual's offense is no
28 longer registrable to request removal; and
29 ▸ makes technical and conforming changes.
30 Money Appropriated in this Bill:
31 None
32 Other Special Clauses:
33 This bill provides a coordination clause.
34 Utah Code Sections Affected:
35 AMENDS:
36 77-41-112, as last amended by Laws of Utah 2019, Chapter 382
37 77-41-113, as enacted by Laws of Utah 2020, Chapter 237
38 ENACTS:
39 77-27-5.2, Utah Code Annotated 1953
40 Utah Code Sections Affected by Coordination Clause:
41 77-41-113, as enacted by Laws of Utah 2020, Chapter 237
42
43 Be it enacted by the Legislature of the state of Utah:
44 Section 1. Section 77-27-5.2 is enacted to read:
45 77-27-5.2. Board authority to order removal from Sex and Kidnap Offender
46 Registry.
47 (1) If the board grants a pardon for a conviction that is the basis for an individual's
48 registration on the Sex and Kidnap Offender Registry, the board shall issue an order directing
49 the Department of Corrections to remove the individual's name and personal information
50 relating to the pardoned conviction from the Sex and Kidnap Offender Registry.
51 (2) An order described in Subsection (1), issued by the board, satisfies the notification
52 requirement described in Subsection 77-41-113(1)(b).
53 Section 2. Section 77-41-112 is amended to read:
54 77-41-112. Removal from registry -- Requirements -- Procedure.
55 (1) An offender who is required to register with the Sex and Kidnap Offender Registry
56 may petition the court for an order removing the offender from the Sex and Kidnap Offender
57 Registry if:
58 (a) (i) the offender is convicted of an offense described in Subsection (2);
59 (ii) at least five years have passed after the day on which the offender's sentence for the
60 offense terminates;
61 (iii) the offense is the only offense for which the offender is required to register;
62 (iv) the offender is not convicted of another offense, excluding a traffic offense, after
63 the day on which the offender is convicted of the offense for which the offender is required to
64 register, as evidenced by a certificate of eligibility issued by the bureau;
65 (v) the offender successfully completes all treatment ordered by the court or the Board
66 of Pardons and Parole relating to the offense;
67 (vi) the offender pays all restitution ordered by the court or the Board of Pardons and
68 Parole relating to the offense; and
69 (vii) the offender complies with all registration requirements required under this
70 chapter at all times; [
71 (b) (i) if the offender is required to register in accordance with Subsection
72 77-41-105(3)(a);
73 (ii) at least 10 years have passed after the later of:
74 (A) the day on which the offender is placed on probation;
75 (B) the day on which the offender is released from incarceration to parole;
76 (C) the day on which the offender's sentence is terminated without parole;
77 (D) the day on which the offender enters a community-based residential program; or
78 (E) for a minor, as defined in Section 78A-6-105, the day on which the division's
79 custody of the offender is terminated;
80 (iii) the offender is not convicted of another offense that is a class A misdemeanor,
81 felony, or capital felony within the most recent 10-year period after the date described in
82 Subsection (1)(b)(ii), as evidenced by a certificate of eligibility issued by the bureau;
83 (iv) the offender successfully completes all treatment ordered by the court or the Board
84 of Pardons and Parole relating to the offense;
85 (v) the offender pays all restitution ordered by the court or the Board of Pardons and
86 Parole relating to the offense; and
87 (vi) the offender complies with all registration requirements required under this chapter
88 at all times[
89 (c) (i) the offender is required to register in accordance with Subsection
90 77-41-105(3)(c);
91 (ii) at least 20 years have passed after the later of:
92 (A) the day on which the offender was placed on probation;
93 (B) the day on which the offender was released from incarceration to parole;
94 (C) the day on which the offender's sentence was terminated without parole;
95 (D) the day on which the offender entered a community-based residential program; or
96 (E) for a minor, as defined in Section 78A-6-105, the day on which the division's
97 custody of the offender was terminated;
98 (iii) the offender has not been convicted of another offense that is a class A
99 misdemeanor, felony, or capital felony within the most recent 20-year period after the date
100 described in Subsection (1)(c)(ii), as evidenced by a certificate of eligibility issued by the
101 bureau;
102 (iv) the offender completed all treatment ordered by the court or the Board of Pardons
103 and Parole relating to the offense;
104 (v) the offender has paid all restitution ordered by the court or the Board of Pardons
105 and Parole relating to the offense; and
106 (vi) the offender submits to an evidence-based risk assessment to the court, with the
107 offender's petition, that:
108 (A) meets the standards for the current risk assessment, score, and risk level required
109 by the Board of Pardons and Parole for parole termination requests;
110 (B) is completed within the six months before the date on which the petition is filed;
111 and
112 (C) describes the evidence-based risk assessment of the current level of risk to the
113 safety of the public posed by the offender.
114 (2) The offenses referred to in Subsection (1)(a)(i) are:
115 (a) Section 76-4-401, enticing a minor, if the offense is a class A misdemeanor;
116 (b) Section 76-5-301, kidnapping;
117 (c) Section 76-5-304, unlawful detention, if the conviction of violating Section
118 76-5-304 is the only conviction for which the offender is required to register;
119 (d) Section 76-5-401, unlawful sexual activity with a minor if, at the time of the
120 offense, the offender is not more than 10 years older than the victim;
121 (e) Section 76-5-401.1, sexual abuse of a minor, if, at the time of the offense, the
122 offender is not more than 10 years older than the victim;
123 (f) Section 76-5-401.2, unlawful sexual conduct with a 16 or 17 year old, and at the
124 time of the offense, the offender is not more than 15 years older than the victim; or
125 (g) Section 76-9-702.7, voyeurism, if the offense is a class A misdemeanor.
126 (3) (a) (i) An offender seeking removal from the Sex and Kidnap Offender Registry
127 under this section shall apply for a certificate of eligibility from the bureau.
128 (ii) An offender who intentionally or knowingly provides false or misleading
129 information to the bureau when applying for a certificate of eligibility is guilty of a class B
130 misdemeanor and subject to prosecution under Section 76-8-504.6.
131 (iii) Regardless of whether the offender is prosecuted, the bureau may deny a certificate
132 of eligibility to an offender who provides false information on an application.
133 (b) (i) The bureau shall perform a check of records of governmental agencies,
134 including national criminal databases, to determine whether an offender is eligible to receive a
135 certificate of eligibility.
136 (ii) If the offender meets the requirements described in Subsection (1)(a) [
137 (c), the bureau shall issue a certificate of eligibility to the offender, which is valid for a period
138 of 90 days after the day on which the bureau issues the certificate.
139 (iii) The bureau shall request information from the department regarding whether the
140 offender meets the requirements.
141 (iv) Upon request from the bureau under Subsection (3)(b)(iii), the department shall
142 issue a document that states whether the offender meets the requirements described in
143 Subsection (1)(a) [
144 of eligibility is appropriate.
145 (v) The bureau shall provide a copy of the document provided to the bureau under
146 Subsection (3)(b)(iv) to the offender upon issuance of a certificate of eligibility.
147 (4) (a) (i) The bureau shall charge application and issuance fees for a certificate of
148 eligibility in accordance with the process in Section 63J-1-504.
149 (ii) The application fee shall be paid at the time the offender submits an application for
150 a certificate of eligibility to the bureau.
151 (iii) If the bureau determines that the issuance of a certificate of eligibility is
152 appropriate, the offender will be charged an additional fee for the issuance of a certificate of
153 eligibility.
154 (b) Funds generated under this Subsection (4) shall be deposited into the General Fund
155 as a dedicated credit by the department to cover the costs incurred in determining eligibility.
156 (5) (a) The offender shall file the petition, including original information, the court
157 docket, the certificate of eligibility from the bureau, and the document from the department
158 described in Subsection (3)(b)(iv) with the court, and deliver a copy of the petition to the office
159 of the prosecutor.
160 (b) Upon receipt of a petition for removal from the Sex and Kidnap Offender Registry,
161 the office of the prosecutor shall provide notice of the petition by first-class mail to the victim
162 at the most recent address of record on file or, if the victim is still a minor under 18 years of
163 age, to the parent or guardian of the victim.
164 (c) The notice described in Subsection (5)(b) shall include a copy of the petition, state
165 that the victim has a right to object to the removal of the offender from the registry, and
166 provide instructions for registering an objection with the court.
167 (d) The office of the prosecutor shall provide the following, if available, to the court
168 within 30 days after the day on which the office receives the petition:
169 (i) presentencing report;
170 (ii) an evaluation done as part of sentencing; and
171 (iii) any other information the office of the prosecutor feels the court should consider.
172 (e) The victim, or the victim's parent or guardian if the victim is a minor under 18 years
173 [
174 within 45 days after the day on which the petition is mailed to the victim.
175 (6) (a) The court shall:
176 (i) review the petition and all documents submitted with the petition; and
177 (ii) hold a hearing if requested by the prosecutor or the victim.
178 (b) [
179 the petition and order removal of the offender from the registry if the court determines that the
180 offender has met the requirements described in Subsection (1)(a) or (b) and removal is not
181 contrary to the interests of the public.
182 (ii) When considering a petition filed under Subsection (1)(c), the court shall determine
183 whether the offender has demonstrated, by clear and convincing evidence, that the offender is
184 rehabilitated and does not pose a threat to the safety of the public.
185 (iii) In making the determination described in Subsection (6)(b)(ii), the court may
186 consider:
187 (A) the nature and degree of violence involved in the offense that requires registration;
188 (B) the age and number of victims of the offense that requires registration;
189 (C) the age of the offender at the time of the offense that requires registration;
190 (D) the offender's performance while on supervision for the offense that requires
191 registration;
192 (E) the offender's stability in employment and housing;
193 (F) the offender's community and personal support system;
194 (G) other criminal and relevant noncriminal behavior of the offender both before and
195 after the offense that requires registration;
196 (H) the level of risk posed by the offender as evidenced by the evidence-based risk
197 assessment described in Subsection (1)(c)(vi); and
198 (I) any other relevant factors.
199 (c) If the court grants the petition, the court shall forward a copy of the order directing
200 removal of the offender from the registry to the department and the office of the prosecutor.
201 (d) [
202 the offender may not submit another petition for three years.
203 (ii) If the offender files a petition under Subsection (1)(c) and the court denies the
204 petition, the offender may not submit another petition for eight years.
205 (7) The court shall notify the victim and the Sex and Kidnap Offender Registry office
206 in the department of the court's decision within three days after the day on which the court
207 issues the court's decision in the same manner described in Subsection (5).
208 Section 3. Section 77-41-113 is amended to read:
209 77-41-113. Removal for offenses or convictions for which registration is no longer
210 required.
211 [
212
213
214 (1) The department shall automatically remove an individual who is currently on the
215 Sex and Kidnap Offender Registry because of a conviction if:
216 (a) the only offense or offenses for which the individual is on the registry [
217 in Subsection (2)[
218 (b) the department receives a formal notification or order from the court or the Board
219 of Pardons and Parole that the conviction for the offense or offenses for which the individual is
220 on the registry has been reversed, vacated, or pardoned.
221 [
222 (2) The offenses described in Subsection (1)(a) are:
223 (a) a class B or class C misdemeanor for enticing a minor, Section 76-4-401;
224 (b) kidnapping, based upon Subsection 76-5-301(1)(a) or (b);
225 (c) child kidnapping, Section 76-5-301.1, if the offender was the natural parent of the
226 child victim;
227 (d) unlawful detention, Section 76-5-304;
228 (e) a third degree felony for unlawful sexual intercourse before 1986, or a class B
229 misdemeanor for unlawful sexual intercourse, Section 76-5-401; or
230 (f) sodomy, but not forcible sodomy, Section 76-5-403.
231 (3) (a) The department shall notify an individual who has been removed from the
232 registry in accordance with Subsection (1).
233 (b) The notice described in Subsection (3)(a) shall include a statement that the
234 individual is no longer required to register as a sex offender.
235 (4) An individual who is currently on the Sex and Kidnap Offender Registry may
236 submit a request to the department to be removed from the registry if the individual believes
237 that the individual qualifies for removal under this section.
238 [
239 (a) check the registry for the individual's current status;
240 (b) determine whether the individual qualifies for removal based upon this section; and
241 (c) notify the individual in writing of the department's determination and whether the
242 individual:
243 (i) qualifies for removal from the registry; or
244 (ii) does not qualify for removal.
245 [
246 registry, the department shall remove the offender from the registry.
247 [
248 from the registry, the department shall provide an explanation in writing for the department's
249 determination. The department's determination is final and not subject to administrative review.
250 [
251 determination made in good faith in accordance with this section.
252 [
253 days of receipt of the request and payment of the fee. If the response cannot be provided within
254 30 days, the department shall notify the individual that the response may be delayed up to 30
255 additional days.
256 [
257 removal.
258 Section 4. Coordinating S.B. 215 with S.B. 165 -- Substantive amendments.
259 If this S.B. 215 and S.B. 165, Sex Offender Registry Revisions, both pass and become
260 law, the Legislature intends that the Office of Legislative Research and General Counsel, when
261 it prepares the Utah Code database for publication, amend Section 77-41-113 to read:
262 "77-41-113. Removal for offenses or convictions for which registration is no
263 longer required.
264 (1) [
265
266
267 currently on the Sex and Kidnap Offender Registry because of a conviction if:
268 (a) the only offense or offenses for which the individual is on the registry [
269 in Subsection (2)[
270 (b) the department receives a formal notification or order from the court or the Board
271 of Pardons and Parole that the conviction for the offense or offenses for which the individual is
272 on the registry have been reversed, vacated, or pardoned.
273 (2) [
274 described in Subsection (1)(a) are:
275 (a) a class B or class C misdemeanor for enticing a minor, Section 76-4-401;
276 (b) kidnapping, based upon Subsection 76-5-301(1)(a) or (b);
277 (c) child kidnapping, Section 76-5-301.1, if the offender was the natural parent of the
278 child victim;
279 (d) unlawful detention, Section 76-5-304;
280 (e) a third degree felony for unlawful sexual intercourse before 1986, or a class B
281 misdemeanor for unlawful sexual intercourse, Section 76-5-401; or
282 (f) sodomy, but not forcible sodomy, Section 76-5-403.
283 (3) (a) The department shall notify an individual who has been removed from the
284 registry in accordance with Subsection (1).
285 (b) The notice described in Subsection (3)(a) shall include a statement that the
286 individual is no longer required to register as a sex offender.
287 (4) An individual who is currently on the Sex and Kidnap Offender Registry may
288 submit a request to the department to be removed from the registry if the individual believes
289 that the individual qualifies for removal under this section.
290 [
291 (a) check the registry for the individual's current status;
292 (b) determine whether the individual qualifies for removal based upon this section; and
293 (c) notify the individual in writing of the department's determination and whether the
294 individual:
295 (i) qualifies for removal from the registry; or
296 (ii) does not qualify for removal.
297 [
298 registry, the department shall remove the offender from the registry.
299 [
300 from the registry, the department shall provide an explanation in writing for the department's
301 determination. The department's determination is final and not subject to administrative review.
302 [
303 determination made in good faith in accordance with this section.
304 [
305 days of receipt of the request [
306 within 30 days, the department shall notify the individual that the response may be delayed up
307 to 30 additional days.
308 [