Senator Chris H. Wilson proposes the following substitute bill:


1     
SEXUAL EXPLOITATION AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Chris H. Wilson

5     
House Sponsor: Karianne Lisonbee

6     

7     LONG TITLE
8     General Description:
9          This bill concerns the sexual exploitation of a minor.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies definitions;
13          ▸     modifies the offense of sexual exploitation of a minor;
14          ▸     creates the offense of aggravated sexual exploitation of a minor;
15          ▸     requires the Sentencing Commission to study and update sentencing and release
16     guidelines concerning the offense of sexual exploitation of a minor;
17          ▸     adds the offense of aggravated sexual exploitation of a minor to statutes that
18     reference sexual exploitation of a minor, including statutes related to:
19               •     custody and visitation for an individual other than a parent;
20               •     enhancements for offenses committed in concert with three or more persons or
21     in relation to a criminal street gang;
22               •     unlawful distribution of a counterfeit intimate image;
23               •     lewdness involving a child;
24               •     prostitution;
25               •     penalties for repeat and habitual sex offenders;

26               •     the Sex and Kidnap Offender Registry; and
27               •     adoption; and
28          ▸     makes technical and conforming changes.
29     Money Appropriated in this Bill:
30          None
31     Other Special Clauses:
32          This bill provides a coordination clause.
33     Utah Code Sections Affected:
34     AMENDS:
35          30-5a-103, as last amended by Laws of Utah 2021, Chapter 262
36          31A-21-501, as last amended by Laws of Utah 2012, Chapters 39 and 303
37          62A-2-120, as last amended by Laws of Utah 2021, Chapters 117, 262, and 400
38          63M-7-404, as last amended by Laws of Utah 2021, Chapter 173
39          63M-7-502, as last amended by Laws of Utah 2021, Chapter 260
40          76-1-302, as last amended by Laws of Utah 2019, Chapter 216
41          76-3-203.1, as last amended by Laws of Utah 2021, First Special Session, Chapter 11
42          76-3-203.5, as last amended by Laws of Utah 2013, Chapter 278
43          76-3-407, as last amended by Laws of Utah 2011, Chapter 320
44          76-5b-201, as last amended by Laws of Utah 2021, Chapter 262
45          76-5b-205, as enacted by Laws of Utah 2021, Chapter 134
46          76-9-702.5, as last amended by Laws of Utah 2019, Chapter 394
47          76-10-1302, as last amended by Laws of Utah 2020, Chapters 108, 214 and last
48     amended by Coordination Clause, Laws of Utah 2020, Chapter 214
49          76-10-1602, as last amended by Laws of Utah 2019, Chapters 200 and 363
50          77-22-2.5, as last amended by Laws of Utah 2019, Chapters 382 and 420
51          77-36-1, as last amended by Laws of Utah 2021, Chapters 134 and 159
52          77-41-102, as last amended by Laws of Utah 2021, Chapter 2 and further amended by
53     Revisor Instructions, Laws of Utah 2021, First Special Session, Chapter 2
54          77-41-106, as last amended by Laws of Utah 2020, Chapter 108
55          78B-6-117, as last amended by Laws of Utah 2021, Chapter 262
56          80-1-102, as last amended by Laws of Utah 2021, First Special Session, Chapter 2

57     ENACTS:
58          76-5b-201.1, Utah Code Annotated 1953
59     Utah Code Sections Affected by Coordination Clause:
60          76-5b-201.1, Utah Code Annotated 1953
61     

62     Be it enacted by the Legislature of the state of Utah:
63          Section 1. Section 30-5a-103 is amended to read:
64          30-5a-103. Custody and visitation for individuals other than a parent.
65          (1) (a) In accordance with Section 62A-4a-201, it is the public policy of this state that a
66     parent retain the fundamental right and duty to exercise primary control over the care,
67     supervision, upbringing, and education of the parent's children.
68          (b) There is a rebuttable presumption that a parent's decisions are in the child's best
69     interests.
70          (2) A court may find the presumption in Subsection (1) rebutted and grant custodial or
71     visitation rights to an individual other than a parent who, by clear and convincing evidence,
72     establishes that:
73          (a) the individual has intentionally assumed the role and obligations of a parent;
74          (b) the individual and the child have formed a substantial emotional bond and created a
75     parent-child type relationship;
76          (c) the individual substantially contributed emotionally or financially to the child's well
77     being;
78          (d) the assumption of the parental role is not the result of a financially compensated
79     surrogate care arrangement;
80          (e) the continuation of the relationship between the individual and the child is in the
81     child's best interest;
82          (f) the loss or cessation of the relationship between the individual and the child would
83     substantially harm the child; and
84          (g) the parent:
85          (i) is absent; or
86          (ii) is found by a court to have abused or neglected the child.
87          (3) A proceeding under this chapter may be commenced by filing a verified petition, or

88     petition supported by an affidavit, in the juvenile court if a matter is pending, or in the district
89     court in the county where the child:
90          (a) currently resides; or
91          (b) lived with a parent or an individual other than a parent who acted as a parent within
92     six months before the commencement of the action.
93          (4) A proceeding under this chapter may be filed in a pending divorce, parentage
94     action, or other proceeding, including a proceeding in the juvenile court involving custody of or
95     visitation with a child.
96          (5) The petition shall include detailed facts supporting the petitioner's right to file the
97     petition including the criteria set forth in Subsection (2) and residency information as set forth
98     in Section 78B-13-209.
99          (6) A proceeding under this chapter may not be filed against a parent who is actively
100     serving outside the state in any branch of the military.
101          (7) Notice of a petition filed pursuant to this chapter shall be served in accordance with
102     the rules of civil procedure on all of the following:
103          (a) the child's biological, adopted, presumed, declarant, and adjudicated parents;
104          (b) any individual who has court-ordered custody or visitation rights;
105          (c) the child's guardian;
106          (d) the guardian ad litem, if one has been appointed;
107          (e) an individual or agency that has physical custody of the child or that claims to have
108     custody or visitation rights; and
109          (f) any other individual or agency that has previously appeared in any action regarding
110     custody of or visitation with the child.
111          (8) The court may order a custody evaluation to be conducted in any action brought
112     under this chapter.
113          (9) The court may enter temporary orders in an action brought under this chapter
114     pending the entry of final orders.
115          (10) Except as provided in Subsection (11), a court may not grant custody of a child
116     under this section to an individual who is not the parent of the child and who, before a custody
117     order is issued, is convicted, pleads guilty, or pleads no contest to a felony or attempted felony
118     involving conduct that constitutes any of the following:

119          (a) child abuse, as described in Section 76-5-109;
120          (b) child abuse homicide, as described in Section 76-5-208;
121          (c) child kidnapping, as described in Section 76-5-301.1;
122          (d) human trafficking of a child, as described in Section 76-5-308.5;
123          (e) sexual abuse of a minor, as described in Section 76-5-401.1;
124          (f) rape of a child, as described in Section 76-5-402.1;
125          (g) object rape of a child, as described in Section 76-5-402.3;
126          (h) sodomy on a child, as described in Section 76-5-403.1;
127          (i) sexual abuse of a child or aggravated sexual abuse of a child, as described in
128     Section 76-5-404.1;
129          (j) sexual exploitation of a minor, as described in Section 76-5b-201; [or]
130          (k) aggravated sexual exploitation of a minor, as described in Section 76-5b-201.1; or
131          [(k)] (l) an offense in another state that, if committed in this state, would constitute an
132     offense described in this Subsection (10).
133          (11) (a) As used in this Subsection (11), "disqualifying offense" means an offense
134     listed in Subsection (10) that prevents a court from granting custody except as provided in this
135     Subsection (11).
136          (b) An individual described in Subsection (10) may only be considered for custody of a
137     child if the following criteria are met by clear and convincing evidence:
138          (i) the individual is a relative, as defined in Section 80-3-102, of the child;
139          (ii) at least 10 years have elapsed from the day on which the individual is successfully
140     released from prison, jail, parole, or probation related to a disqualifying offense;
141          (iii) during the 10 years before the day on which the individual files a petition with the
142     court seeking custody the individual has not been convicted, plead guilty, or plead no contest to
143     an offense greater than an infraction or traffic violation that would likely impact the health,
144     safety, or well-being of the child;
145          (iv) the individual can provide evidence of successful treatment or rehabilitation
146     directly related to the disqualifying offense;
147          (v) the court determines that the risk related to the disqualifying offense is unlikely to
148     cause harm, as defined in Section 80-1-102, or potential harm to the child currently or at any
149     time in the future when considering all of the following:

150          (A) the child's age;
151          (B) the child's gender;
152          (C) the child's development;
153          (D) the nature and seriousness of the disqualifying offense;
154          (E) the preferences of a child 12 years old or older;
155          (F) any available assessments, including custody evaluations, parenting assessments,
156     psychological or mental health assessments, and bonding assessments; and
157          (G) any other relevant information;
158          (vi) the individual can provide evidence of the following:
159          (A) the relationship with the child is of long duration;
160          (B) that an emotional bond exists with the child; and
161          (C) that custody by the individual who has committed the disqualifying offense ensures
162     the best interests of the child are met;
163          (vii) (A) there is no other responsible relative known to the court who has or likely
164     could develop an emotional bond with the child and does not have a disqualifying offense; or
165          (B) if there is a responsible relative known to the court that does not have a
166     disqualifying offense, Subsection (11)(d) applies; and
167          (viii) that the continuation of the relationship between the individual with the
168     disqualifying offense and the child could not be sufficiently maintained through any type of
169     visitation if custody were given to the relative with no disqualifying offense described in
170     Subsection (11)(d).
171          (c) The individual with the disqualifying offense bears the burden of proof regarding
172     why placement with that individual is in the best interest of the child over another responsible
173     relative or equally situated individual who does not have a disqualifying offense.
174          (d) If, as provided in Subsection (11)(b)(vii)(B), there is a responsible relative known
175     to the court who does not have a disqualifying offense:
176          (i) preference for custody is given to a relative who does not have a disqualifying
177     offense; and
178          (ii) before the court may place custody with the individual who has the disqualifying
179     offense over another responsible, willing, and able relative:
180          (A) an impartial custody evaluation shall be completed; and

181          (B) a guardian ad litem shall be assigned.
182          (12) Subsections (10) and (11) apply to a case pending on March 25, 2017, for which a
183     final decision on custody has not been made and to a case filed on or after March 25, 2017.
184          Section 2. Section 31A-21-501 is amended to read:
185          31A-21-501. Definitions.
186          For purposes of this part:
187          (1) "Applicant" means:
188          (a) in the case of an individual life or accident and health policy, the person who seeks
189     to contract for insurance benefits; or
190          (b) in the case of a group life or accident and health policy, the proposed certificate
191     holder.
192          (2) "Cohabitant" means an emancipated individual pursuant to Section 15-2-1 or an
193     individual who is 16 years [of age] old or older who:
194          (a) is or was a spouse of the other party;
195          (b) is or was living as if a spouse of the other party;
196          (c) is related by blood or marriage to the other party;
197          (d) has one or more children in common with the other party; or
198          (e) resides or has resided in the same residence as the other party.
199          (3) "Child abuse" means the commission or attempt to commit against a child a
200     criminal offense described in:
201          (a) Title 76, Chapter 5, Part 1, Assault and Related Offenses;
202          (b) Title 76, Chapter 5, Part 4, Sexual Offenses;
203          (c) Section 76-9-702, Lewdness;
204          (d) Section 76-9-702.1, Sexual battery; or
205          (e) Section 76-9-702.5, Lewdness involving a child.
206          (4) "Domestic violence" means any criminal offense involving violence or physical
207     harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to
208     commit a criminal offense involving violence or physical harm, when committed by one
209     cohabitant against another and includes commission or attempt to commit, any of the following
210     offenses by one cohabitant against another:
211          (a) aggravated assault, as described in Section 76-5-103;

212          (b) assault, as described in Section 76-5-102;
213          (c) criminal homicide, as described in Section 76-5-201;
214          (d) harassment, as described in Section 76-5-106;
215          (e) electronic communication harassment, as described in Section 76-9-201;
216          (f) kidnaping, child kidnaping, or aggravated kidnaping, as described in Sections
217     76-5-301, 76-5-301.1, and 76-5-302;
218          (g) mayhem, as described in Section 76-5-105;
219          (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
220     [Section 76-5b-201] Sections 76-5b-201 and 76-5b-201.1;
221          (i) stalking, as described in Section 76-5-106.5;
222          (j) unlawful detention or unlawful detention of a minor, as described in Section
223     76-5-304;
224          (k) violation of a protective order or ex parte protective order, as described in Section
225     76-5-108;
226          (l) any offense against property described in Title 76, Chapter 6, Part 1, Property
227     Destruction, Part 2, Burglary and Criminal Trespass, or Part 3, Robbery;
228          (m) possession of a deadly weapon with intent to assault, as described in Section
229     76-10-507; or
230          (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
231     person, building, or vehicle, as described in Section 76-10-508.
232          (5) "Subject of domestic abuse" means an individual who is, has been, may currently
233     be, or may have been subject to domestic violence or child abuse.
234          Section 3. Section 62A-2-120 is amended to read:
235          62A-2-120. Background check -- Direct access to children or vulnerable adults.
236          (1) As used in this section:
237          (a) (i) "Applicant" means:
238          (A) the same as that term is defined in Section 62A-2-101;
239          (B) an individual who is associated with a licensee and has or will likely have direct
240     access to a child or a vulnerable adult;
241          (C) an individual who provides respite care to a foster parent or an adoptive parent on
242     more than one occasion;

243          (D) a department contractor;
244          (E) a guardian submitting an application on behalf of an individual, other than the child
245     or vulnerable adult who is receiving the service, if the individual is 12 years old or older and
246     resides in a home, that is licensed or certified by the office, with the child or vulnerable adult
247     who is receiving services; or
248          (F) a guardian submitting an application on behalf of an individual, other than the child
249     or vulnerable adult who is receiving the service, if the individual is 12 years old or older and is
250     a person described in Subsection (1)(a)(i)(A), (B), (C), or (D).
251          (ii) "Applicant" does not mean an individual, including an adult, who is in the custody
252     of the Division of Child and Family Services or the Division of Juvenile Justice Services.
253          (b) "Application" means a background screening application to the office.
254          (c) "Bureau" means the Bureau of Criminal Identification within the Department of
255     Public Safety, created in Section 53-10-201.
256          (d) "Incidental care" means occasional care, not in excess of five hours per week and
257     never overnight, for a foster child.
258          (e) "Personal identifying information" means:
259          (i) current name, former names, nicknames, and aliases;
260          (ii) date of birth;
261          (iii) physical address and email address;
262          (iv) telephone number;
263          (v) driver license or other government-issued identification;
264          (vi) social security number;
265          (vii) only for applicants who are 18 years old or older, fingerprints, in a form specified
266     by the office; and
267          (viii) other information specified by the office by rule made in accordance with Title
268     63G, Chapter 3, Utah Administrative Rulemaking Act.
269          (2) (a) Except as provided in Subsection (13), an applicant or a representative shall
270     submit the following to the office:
271          (i) personal identifying information;
272          (ii) a fee established by the office under Section 63J-1-504; and
273          (iii) a disclosure form, specified by the office, for consent for:

274          (A) an initial background check upon submission of the information described under
275     this Subsection (2)(a);
276          (B) ongoing monitoring of fingerprints and registries until no longer associated with a
277     licensee for 90 days;
278          (C) a background check when the office determines that reasonable cause exists; and
279          (D) retention of personal identifying information, including fingerprints, for
280     monitoring and notification as described in Subsections (3)(d) and (4).
281          (b) In addition to the requirements described in Subsection (2)(a), if an applicant
282     resided outside of the United States and its territories during the five years immediately
283     preceding the day on which the information described in Subsection (2)(a) is submitted to the
284     office, the office may require the applicant to submit documentation establishing whether the
285     applicant was convicted of a crime during the time that the applicant resided outside of the
286     United States or its territories.
287          (3) The office:
288          (a) shall perform the following duties as part of a background check of an applicant:
289          (i) check state and regional criminal background databases for the applicant's criminal
290     history by:
291          (A) submitting personal identifying information to the bureau for a search; or
292          (B) using the applicant's personal identifying information to search state and regional
293     criminal background databases as authorized under Section 53-10-108;
294          (ii) submit the applicant's personal identifying information and fingerprints to the
295     bureau for a criminal history search of applicable national criminal background databases;
296          (iii) search the Department of Human Services, Division of Child and Family Services'
297     Licensing Information System described in Section 62A-4a-1006;
298          (iv) search the Department of Human Services, Division of Aging and Adult Services'
299     vulnerable adult abuse, neglect, or exploitation database described in Section 62A-3-311.1;
300          (v) search the juvenile court records for substantiated findings of severe child abuse or
301     neglect described in Section 80-3-404; and
302          (vi) search the juvenile court arrest, adjudication, and disposition records, as provided
303     under Section 78A-6-209;
304          (b) shall conduct a background check of an applicant for an initial background check

305     upon submission of the information described under Subsection (2)(a);
306          (c) may conduct all or portions of a background check of an applicant, as provided by
307     rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative
308     Rulemaking Act:
309          (i) for an annual renewal; or
310          (ii) when the office determines that reasonable cause exists;
311          (d) may submit an applicant's personal identifying information, including fingerprints,
312     to the bureau for checking, retaining, and monitoring of state and national criminal background
313     databases and for notifying the office of new criminal activity associated with the applicant;
314          (e) shall track the status of an approved applicant under this section to ensure that an
315     approved applicant is not required to duplicate the submission of the applicant's fingerprints if
316     the applicant applies for:
317          (i) more than one license;
318          (ii) direct access to a child or a vulnerable adult in more than one human services
319     program; or
320          (iii) direct access to a child or a vulnerable adult under a contract with the department;
321          (f) shall track the status of each license and each individual with direct access to a child
322     or a vulnerable adult and notify the bureau within 90 days after the day on which the license
323     expires or the individual's direct access to a child or a vulnerable adult ceases;
324          (g) shall adopt measures to strictly limit access to personal identifying information
325     solely to the individuals responsible for processing and entering the applications for
326     background checks and to protect the security of the personal identifying information the office
327     reviews under this Subsection (3);
328          (h) as necessary to comply with the federal requirement to check a state's child abuse
329     and neglect registry regarding any individual working in a congregate care program, shall:
330          (i) search the Department of Human Services, Division of Child and Family Services'
331     Licensing Information System described in Section 62A-4a-1006; and
332          (ii) require the child abuse and neglect registry be checked in each state where an
333     applicant resided at any time during the five years immediately preceding the day on which the
334     applicant submits the information described in Subsection (2)(a) to the office; and
335          (i) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative

336     Rulemaking Act, to implement the provisions of this Subsection (3) relating to background
337     checks.
338          (4) (a) With the personal identifying information the office submits to the bureau under
339     Subsection (3), the bureau shall check against state and regional criminal background databases
340     for the applicant's criminal history.
341          (b) With the personal identifying information and fingerprints the office submits to the
342     bureau under Subsection (3), the bureau shall check against national criminal background
343     databases for the applicant's criminal history.
344          (c) Upon direction from the office, and with the personal identifying information and
345     fingerprints the office submits to the bureau under Subsection (3)(d), the bureau shall:
346          (i) maintain a separate file of the fingerprints for search by future submissions to the
347     local and regional criminal records databases, including latent prints; and
348          (ii) monitor state and regional criminal background databases and identify criminal
349     activity associated with the applicant.
350          (d) The bureau is authorized to submit the fingerprints to the Federal Bureau of
351     Investigation Next Generation Identification System, to be retained in the Federal Bureau of
352     Investigation Next Generation Identification System for the purpose of:
353          (i) being searched by future submissions to the national criminal records databases,
354     including the Federal Bureau of Investigation Next Generation Identification System and latent
355     prints; and
356          (ii) monitoring national criminal background databases and identifying criminal
357     activity associated with the applicant.
358          (e) The Bureau shall notify and release to the office all information of criminal activity
359     associated with the applicant.
360          (f) Upon notice from the office that a license has expired or an individual's direct
361     access to a child or a vulnerable adult has ceased for 90 days, the bureau shall:
362          (i) discard and destroy any retained fingerprints; and
363          (ii) notify the Federal Bureau of Investigation when the license has expired or an
364     individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau
365     of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of
366     Investigation Next Generation Identification System.

367          (5) (a) After conducting the background check described in Subsections (3) and (4), the
368     office shall deny an application to an applicant who, within three years before the day on which
369     the applicant submits information to the office under Subsection (2) for a background check,
370     has been convicted of any of the following, regardless of whether the offense is a felony, a
371     misdemeanor, or an infraction:
372          (i) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to
373     animals, or bestiality;
374          (ii) a violation of any pornography law, including sexual exploitation of a minor or
375     aggravated sexual exploitation of a minor;
376          (iii) prostitution;
377          (iv) an offense included in:
378          (A) Title 76, Chapter 5, Offenses Against the Person;
379          (B) Section 76-5b-201, Sexual Exploitation of a Minor; [or]
380          (C) Section 76-5b-201.1, Aggravated Sexual Exploitation of a Minor; or
381          [(C)] (D) Title 76, Chapter 7, Offenses Against the Family;
382          (v) aggravated arson, as described in Section 76-6-103;
383          (vi) aggravated burglary, as described in Section 76-6-203;
384          (vii) aggravated robbery, as described in Section 76-6-302;
385          (viii) identity fraud crime, as described in Section 76-6-1102; or
386          (ix) a felony or misdemeanor offense committed outside of the state that, if committed
387     in the state, would constitute a violation of an offense described in Subsections (5)(a)(i)
388     through (viii).
389          (b) If the office denies an application to an applicant based on a conviction described in
390     Subsection (5)(a), the applicant is not entitled to a comprehensive review described in
391     Subsection (6).
392          (c) If the applicant will be working in a program serving only adults whose only
393     impairment is a mental health diagnosis, including that of a serious mental health disorder,
394     with or without co-occurring substance use disorder, the denial provisions of Subsection (5)(a)
395     do not apply, and the office shall conduct a comprehensive review as described in Subsection
396     (6).
397          (6) (a) The office shall conduct a comprehensive review of an applicant's background

398     check if the applicant:
399          (i) has an open court case or a conviction for any felony offense, not described in
400     Subsection (5)(a), with a date of conviction that is no more than 10 years before the date on
401     which the applicant submits the application;
402          (ii) has an open court case or a conviction for a misdemeanor offense, not described in
403     Subsection (5)(a), and designated by the office, by rule, in accordance with Title 63G, Chapter
404     3, Utah Administrative Rulemaking Act, if the conviction is within three years before the day
405     on which the applicant submits information to the office under Subsection (2) for a background
406     check;
407          (iii) has a conviction for any offense described in Subsection (5)(a) that occurred more
408     than three years before the day on which the applicant submitted information under Subsection
409     (2)(a);
410          (iv) is currently subject to a plea in abeyance or diversion agreement for any offense
411     described in Subsection (5)(a);
412          (v) has a listing in the Department of Human Services, Division of Child and Family
413     Services' Licensing Information System described in Section 62A-4a-1006;
414          (vi) has a listing in the Department of Human Services, Division of Aging and Adult
415     Services' vulnerable adult abuse, neglect, or exploitation database described in Section
416     62A-3-311.1;
417          (vii) has a record in the juvenile court of a substantiated finding of severe child abuse
418     or neglect described in Section 80-3-404;
419          (viii) has a record of an adjudication in juvenile court for an act that, if committed by
420     an adult, would be a felony or misdemeanor, if the applicant is:
421          (A) under 28 years old; or
422          (B) 28 years old or older and has been convicted of, has pleaded no contest to, or is
423     currently subject to a plea in abeyance or diversion agreement for a felony or a misdemeanor
424     offense described in Subsection (5)(a);
425          (ix) has a pending charge for an offense described in Subsection (5)(a); or
426          (x) is an applicant described in Subsection (5)(c).
427          (b) The comprehensive review described in Subsection (6)(a) shall include an
428     examination of:

429          (i) the date of the offense or incident;
430          (ii) the nature and seriousness of the offense or incident;
431          (iii) the circumstances under which the offense or incident occurred;
432          (iv) the age of the perpetrator when the offense or incident occurred;
433          (v) whether the offense or incident was an isolated or repeated incident;
434          (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
435     adult, including:
436          (A) actual or threatened, nonaccidental physical, mental, or financial harm;
437          (B) sexual abuse;
438          (C) sexual exploitation; or
439          (D) negligent treatment;
440          (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric
441     treatment received, or additional academic or vocational schooling completed;
442          (viii) the applicant's risk of harm to clientele in the program or in the capacity for
443     which the applicant is applying; and
444          (ix) any other pertinent information presented to or publicly available to the committee
445     members.
446          (c) At the conclusion of the comprehensive review described in Subsection (6)(a), the
447     office shall deny an application to an applicant if the office finds that approval would likely
448     create a risk of harm to a child or a vulnerable adult.
449          (d) At the conclusion of the comprehensive review described in Subsection (6)(a), the
450     office may not deny an application to an applicant solely because the applicant was convicted
451     of an offense that occurred 10 or more years before the day on which the applicant submitted
452     the information required under Subsection (2)(a) if:
453          (i) the applicant has not committed another misdemeanor or felony offense after the
454     day on which the conviction occurred; and
455          (ii) the applicant has never been convicted of an offense described in Subsection
456     (14)(c).
457          (e) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
458     office may make rules, consistent with this chapter, to establish procedures for the
459     comprehensive review described in this Subsection (6).

460          (7) Subject to Subsection (10), the office shall approve an application to an applicant
461     who is not denied under Subsection (5), (6), or (14).
462          (8) (a) The office may conditionally approve an application of an applicant, for a
463     maximum of 60 days after the day on which the office sends written notice to the applicant
464     under Subsection (12), without requiring that the applicant be directly supervised, if the office:
465          (i) is awaiting the results of the criminal history search of national criminal background
466     databases; and
467          (ii) would otherwise approve an application of the applicant under Subsection (7).
468          (b) The office may conditionally approve an application of an applicant, for a
469     maximum of one year after the day on which the office sends written notice to the applicant
470     under Subsection (12), without requiring that the applicant be directly supervised if the office:
471          (i) is awaiting the results of an out-of-state registry for providers other than foster and
472     adoptive parents; and
473          (ii) would otherwise approve an application of the applicant under Subsection (7).
474          (c) Upon receiving the results of the criminal history search of a national criminal
475     background database, the office shall approve or deny the application of the applicant in
476     accordance with Subsections (5) through (7).
477          (9) A licensee or department contractor may not permit an individual to have direct
478     access to a child or a vulnerable adult unless, subject to Subsection (10):
479          (a) the individual is associated with the licensee or department contractor and:
480          (i) the individual's application is approved by the office under this section;
481          (ii) the individual's application is conditionally approved by the office under
482     Subsection (8); or
483          (iii) (A) the individual has submitted the background check information described in
484     Subsection (2) to the office;
485          (B) the office has not determined whether to approve the applicant's application; and
486          (C) the individual is directly supervised by an individual who has a current background
487     screening approval issued by the office under this section and is associated with the licensee or
488     department contractor;
489          (b) (i) the individual is associated with the licensee or department contractor;
490          (ii) the individual has a current background screening approval issued by the office

491     under this section;
492          (iii) one of the following circumstances, that the office has not yet reviewed under
493     Subsection (6), applies to the individual:
494          (A) the individual was charged with an offense described in Subsection (5)(a);
495          (B) the individual is listed in the Licensing Information System, described in Section
496     62A-4a-1006;
497          (C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation
498     database, described in Section 62A-3-311.1;
499          (D) the individual has a record in the juvenile court of a substantiated finding of severe
500     child abuse or neglect, described in Section 80-3-404; or
501          (E) the individual has a record of an adjudication in juvenile court for an act that, if
502     committed by an adult, would be a felony or a misdemeanor as described in Subsection (5)(a)
503     or (6); and
504          (iv) the individual is directly supervised by an individual who:
505          (A) has a current background screening approval issued by the office under this
506     section; and
507          (B) is associated with the licensee or department contractor;
508          (c) the individual:
509          (i) is not associated with the licensee or department contractor; and
510          (ii) is directly supervised by an individual who:
511          (A) has a current background screening approval issued by the office under this
512     section; and
513          (B) is associated with the licensee or department contractor;
514          (d) the individual is the parent or guardian of the child, or the guardian of the
515     vulnerable adult;
516          (e) the individual is approved by the parent or guardian of the child, or the guardian of
517     the vulnerable adult, to have direct access to the child or the vulnerable adult;
518          (f) the individual is only permitted to have direct access to a vulnerable adult who
519     voluntarily invites the individual to visit; or
520          (g) the individual only provides incidental care for a foster child on behalf of a foster
521     parent who has used reasonable and prudent judgment to select the individual to provide the

522     incidental care for the foster child.
523          (10) An individual may not have direct access to a child or a vulnerable adult if the
524     individual is prohibited by court order from having that access.
525          (11) Notwithstanding any other provision of this section, an individual for whom the
526     office denies an application may not have direct access to a child or vulnerable adult unless the
527     office approves a subsequent application by the individual.
528          (12) (a) Within 30 days after the day on which the office receives the background
529     check information for an applicant, the office shall give notice of the clearance status to:
530          (i) the applicant, and the licensee or department contractor, of the office's decision
531     regarding the background check and findings; and
532          (ii) the applicant of any convictions and potentially disqualifying charges and
533     adjudications found in the search.
534          (b) With the notice described in Subsection (12)(a), the office shall also give the
535     applicant the details of any comprehensive review conducted under Subsection (6).
536          (c) If the notice under Subsection (12)(a) states that the applicant's application is
537     denied, the notice shall further advise the applicant that the applicant may, under Subsection
538     62A-2-111(2), request a hearing in the department's Office of Administrative Hearings, to
539     challenge the office's decision.
540          (d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
541     office shall make rules, consistent with this chapter:
542          (i) defining procedures for the challenge of the office's background check decision
543     described in Subsection (12)(c); and
544          (ii) expediting the process for renewal of a license under the requirements of this
545     section and other applicable sections.
546          (13) An individual or a department contractor who provides services in an adults only
547     substance use disorder program, as defined by rule, is exempt from this section. This
548     exemption does not extend to a program director or a member, as defined by Section
549     62A-2-108, of the program.
550          (14) (a) Except as provided in Subsection (14)(b), in addition to the other requirements
551     of this section, if the background check of an applicant is being conducted for the purpose of
552     giving clearance status to an applicant seeking a position in a congregate care program, an

553     applicant for a one-time adoption, an applicant seeking to provide a prospective foster home, or
554     an applicant seeking to provide a prospective adoptive home, the office shall:
555          (i) check the child abuse and neglect registry in each state where each applicant resided
556     in the five years immediately preceding the day on which the applicant applied to be a foster
557     parent or adoptive parent, to determine whether the prospective foster parent or prospective
558     adoptive parent is listed in the registry as having a substantiated or supported finding of child
559     abuse or neglect; and
560          (ii) check the child abuse and neglect registry in each state where each adult living in
561     the home of the applicant described in Subsection (14)(a)(i) resided in the five years
562     immediately preceding the day on which the applicant applied to be a foster parent or adoptive
563     parent, to determine whether the adult is listed in the registry as having a substantiated or
564     supported finding of child abuse or neglect.
565          (b) The requirements described in Subsection (14)(a) do not apply to the extent that:
566          (i) federal law or rule permits otherwise; or
567          (ii) the requirements would prohibit the Division of Child and Family Services or a
568     court from placing a child with:
569          (A) a noncustodial parent under Section 62A-4a-209, 80-3-302, or 80-3-303; or
570          (B) a relative, other than a noncustodial parent, under Section 62A-4a-209, 80-3-302,
571     or 80-3-303, pending completion of the background check described in Subsection (5).
572          (c) Notwithstanding Subsections (5) through (9), the office shall deny a clearance to an
573     applicant seeking a position in a congregate care program, an applicant for a one-time adoption,
574     an applicant to become a prospective foster parent, or an applicant to become a prospective
575     adoptive parent if the applicant has been convicted of:
576          (i) a felony involving conduct that constitutes any of the following:
577          (A) child abuse, as described in Section 76-5-109;
578          (B) commission of domestic violence in the presence of a child, as described in Section
579     76-5-109.1;
580          (C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
581          (D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5;
582          (E) aggravated murder, as described in Section 76-5-202;
583          (F) murder, as described in Section 76-5-203;

584          (G) manslaughter, as described in Section 76-5-205;
585          (H) child abuse homicide, as described in Section 76-5-208;
586          (I) homicide by assault, as described in Section 76-5-209;
587          (J) kidnapping, as described in Section 76-5-301;
588          (K) child kidnapping, as described in Section 76-5-301.1;
589          (L) aggravated kidnapping, as described in Section 76-5-302;
590          (M) human trafficking of a child, as described in Section 76-5-308.5;
591          (N) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
592          (O) sexual exploitation of a minor, as described in Section 76-5b-201;
593          (P) aggravated exploitation of a minor, as described in Section 76-5b-201.1;
594          [(P)] (Q) aggravated arson, as described in Section 76-6-103;
595          [(Q)] (R) aggravated burglary, as described in Section 76-6-203;
596          [(R)] (S) aggravated robbery, as described in Section 76-6-302; or
597          [(S)] (T) domestic violence, as described in Section 77-36-1; or
598          (ii) an offense committed outside the state that, if committed in the state, would
599     constitute a violation of an offense described in Subsection (14)(c)(i).
600          (d) Notwithstanding Subsections (5) through (9), the office shall deny a license or
601     license renewal to a prospective foster parent or a prospective adoptive parent if, within the
602     five years immediately preceding the day on which the individual's application or license would
603     otherwise be approved, the applicant was convicted of a felony involving conduct that
604     constitutes a violation of any of the following:
605          (i) aggravated assault, as described in Section 76-5-103;
606          (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
607          (iii) mayhem, as described in Section 76-5-105;
608          (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
609          (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
610          (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
611     Act;
612          (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
613     Precursor Act; or
614          (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.

615          (e) In addition to the circumstances described in Subsection (6)(a), the office shall
616     conduct the comprehensive review of an applicant's background check pursuant to this section
617     if the registry check described in Subsection (14)(a) indicates that the individual is listed in a
618     child abuse and neglect registry of another state as having a substantiated or supported finding
619     of a severe type of child abuse or neglect as defined in Section 62A-4a-1002.
620          Section 4. Section 63M-7-404 is amended to read:
621          63M-7-404. Purpose -- Duties.
622          (1) The purpose of the commission is to develop guidelines and propose
623     recommendations to the Legislature, the governor, and the Judicial Council regarding:
624          (a) the sentencing and release of juvenile and adult offenders in order to:
625          (i) respond to public comment;
626          (ii) relate sentencing practices and correctional resources;
627          (iii) increase equity in criminal sentencing;
628          (iv) better define responsibility in criminal sentencing; and
629          (v) enhance the discretion of sentencing judges while preserving the role of the Board
630     of Pardons and Parole and the Youth Parole Authority;
631          (b) the length of supervision of adult offenders on probation or parole in order to:
632          (i) increase equity in criminal supervision lengths;
633          (ii) respond to public comment;
634          (iii) relate the length of supervision to an offender's progress;
635          (iv) take into account an offender's risk of offending again;
636          (v) relate the length of supervision to the amount of time an offender has remained
637     under supervision in the community; and
638          (vi) enhance the discretion of the sentencing judges while preserving the role of the
639     Board of Pardons and Parole;
640          (c) appropriate, evidence-based probation and parole supervision policies and services
641     that assist individuals in successfully completing supervision and reduce incarceration rates
642     from community supervision programs while ensuring public safety, including:
643          (i) treatment and intervention completion determinations based on individualized case
644     action plans;
645          (ii) measured and consistent processes for addressing violations of conditions of

646     supervision;
647          (iii) processes that include using positive reinforcement to recognize an individual's
648     progress in supervision;
649          (iv) engaging with social services agencies and other stakeholders who provide
650     services that meet offender needs; and
651          (v) identifying community violations that may not warrant revocation of probation or
652     parole.
653          (2) (a) The commission shall modify the sentencing guidelines and supervision length
654     guidelines for adult offenders to implement the recommendations of the Commission on
655     Criminal and Juvenile Justice for reducing recidivism.
656          (b) The modifications under Subsection (2)(a) shall be for the purposes of protecting
657     the public and ensuring efficient use of state funds.
658          (3) (a) The commission shall modify the criminal history score in the sentencing
659     guidelines for adult offenders to implement the recommendations of the Commission on
660     Criminal and Juvenile Justice for reducing recidivism.
661          (b) The modifications to the criminal history score under Subsection (3)(a) shall
662     include factors in an offender's criminal history that are relevant to the accurate determination
663     of an individual's risk of offending again.
664          (4) (a) The commission shall establish sentencing guidelines for periods of
665     incarceration for individuals who are on probation and:
666          (i) who have violated one or more conditions of probation; and
667          (ii) whose probation has been revoked by the court.
668          (b) The guidelines shall consider the seriousness of the violation of the conditions of
669     probation, the probationer's conduct while on probation, and the probationer's criminal history.
670          (5) (a) The commission shall establish sentencing guidelines for periods of
671     incarceration for individuals who are on parole and:
672          (i) who have violated a condition of parole; and
673          (ii) whose parole has been revoked by the Board of Pardons and Parole.
674          (b) The guidelines shall consider the seriousness of the violation of the conditions of
675     parole, the individual's conduct while on parole, and the individual's criminal history.
676          (6) The commission shall establish graduated and evidence-based processes to

677     facilitate the prompt and effective response to an individual's progress in or violation of the
678     terms of probation or parole by the adult probation and parole section of the Department of
679     Corrections, or other supervision services provider, in order to implement the
680     recommendations of the Commission on Criminal and Juvenile Justice for reducing recidivism
681     and incarceration, including:
682          (a) responses to be used when an individual violates a condition of probation or parole;
683          (b) responses to recognize positive behavior and progress related to an individual's case
684     action plan;
685          (c) when a violation of a condition of probation or parole should be reported to the
686     court or the Board of Pardons and Parole; and
687          (d) a range of sanctions that may not exceed a period of incarceration of more than:
688          (i) three consecutive days; and
689          (ii) a total of five days in a period of 30 days.
690          (7) The commission shall establish graduated incentives to facilitate a prompt and
691     effective response by the adult probation and parole section of the Department of Corrections
692     to an offender's:
693          (a) compliance with the terms of probation or parole; and
694          (b) positive conduct that exceeds those terms.
695          (8) (a) The commission shall establish guidelines, including sanctions and incentives,
696     to appropriately respond to negative and positive behavior of juveniles who are:
697          (i) nonjudicially adjusted;
698          (ii) placed on diversion;
699          (iii) placed on probation;
700          (iv) placed on community supervision;
701          (v) placed in an out-of-home placement; or
702          (vi) placed in a secure care facility.
703          (b) In establishing guidelines under this Subsection (8), the commission shall consider:
704          (i) the seriousness of the negative and positive behavior;
705          (ii) the juvenile's conduct post-adjudication; and
706          (iii) the delinquency history of the juvenile.
707          (c) The guidelines shall include:

708          (i) responses that are swift and certain;
709          (ii) a continuum of community-based options for juveniles living at home;
710          (iii) responses that target the individual's criminogenic risk and needs; and
711          (iv) incentives for compliance, including earned discharge credits.
712          (9) The commission shall establish supervision length guidelines in accordance with
713     this section before October 1, 2018.
714          (10) (a) Before January 1, 2023, the commission shall study the offenses of sexual
715     exploitation of a minor and aggravated sexual exploitation of a minor under Sections
716     76-5b-201 and 76-5b-201.1.
717          (b) The commission shall update sentencing and release guidelines and juvenile
718     disposition guidelines to reflect appropriate sanctions for an offense listed in Subsection
719     (10)(a), including the application of aggravating and mitigating factors specific to the offense.
720          Section 5. Section 63M-7-502 is amended to read:
721          63M-7-502. Definitions.
722          As used in this part:
723          (1) "Accomplice" means an individual who has engaged in criminal conduct as
724     described in Section 76-2-202.
725          (2) "Board" means the Crime Victim Reparations and Assistance Board created under
726     Section 63M-7-504.
727          (3) "Bodily injury" means physical pain, illness, or any impairment of physical
728     condition.
729          (4) "Claimant" means any of the following claiming reparations under this part:
730          (a) a victim;
731          (b) a dependent of a deceased victim; or
732          (c) an individual or representative who files a reparations claim on behalf of a victim.
733          (5) "Child" means an unemancipated individual who is under 18 years old.
734          (6) "Collateral source" means any source of benefits or advantages for economic loss
735     otherwise reparable under this part that the victim or claimant has received, or that is readily
736     available to the victim from:
737          (a) the offender;
738          (b) the insurance of the offender or the victim;

739          (c) the United States government or any of its agencies, a state or any of its political
740     subdivisions, or an instrumentality of two or more states, except in the case on nonobligatory
741     state-funded programs;
742          (d) social security, Medicare, and Medicaid;
743          (e) state-required temporary nonoccupational income replacement insurance or
744     disability income insurance;
745          (f) workers' compensation;
746          (g) wage continuation programs of any employer;
747          (h) proceeds of a contract of insurance payable to the victim for the loss the victim
748     sustained because of the criminally injurious conduct;
749          (i) a contract providing prepaid hospital and other health care services or benefits for
750     disability; or
751          (j) veteran's benefits, including veteran's hospitalization benefits.
752          (7) (a) "Criminally injurious conduct" other than acts of war declared or not declared
753     means conduct that:
754          (i) is or would be subject to prosecution in this state under Section 76-1-201;
755          (ii) occurs or is attempted;
756          (iii) causes, or poses a substantial threat of causing, bodily injury or death;
757          (iv) is punishable by fine, imprisonment, or death if the individual engaging in the
758     conduct possessed the capacity to commit the conduct; and
759          (v) does not arise out of the ownership, maintenance, or use of a motor vehicle,
760     aircraft, or water craft, unless the conduct is intended to cause bodily injury or death, or is
761     conduct which is or would be punishable under Title 76, Chapter 5, Offenses Against the
762     Person, or as any offense chargeable as driving under the influence of alcohol or drugs.
763          (b) "Criminally injurious conduct" includes an act of terrorism, as defined in 18 U.S.C.
764     Sec. 2331 committed outside of the United States against a resident of this state. "Terrorism"
765     does not include an "act of war" as defined in 18 U.S.C. Sec. 2331.
766          (c) "Criminally injurious conduct" includes a felony violation of Section 76-7-101 and
767     other conduct leading to the psychological injury of an individual resulting from living in a
768     setting that involves a bigamous relationship.
769          (8) (a) "Dependent" means a natural person to whom the victim is wholly or partially

770     legally responsible for care or support.
771          (b) "Dependent" includes a child of the victim born after the victim's death.
772          (9) "Dependent's economic loss" means loss after the victim's death of contributions of
773     things of economic value to the victim's dependent, not including services the dependent would
774     have received from the victim if the victim had not suffered the fatal injury, less expenses of
775     the dependent avoided by reason of victim's death.
776          (10) "Dependent's replacement services loss" means loss reasonably and necessarily
777     incurred by the dependent after the victim's death in obtaining services in lieu of those the
778     decedent would have performed for the victim's benefit if the victim had not suffered the fatal
779     injury, less expenses of the dependent avoided by reason of the victim's death and not
780     subtracted in calculating the dependent's economic loss.
781          (11) "Director" means the director of the office.
782          (12) "Disposition" means the sentencing or determination of penalty or punishment to
783     be imposed upon an individual:
784          (a) convicted of a crime;
785          (b) found delinquent; or
786          (c) against whom a finding of sufficient facts for conviction or finding of delinquency
787     is made.
788          (13) (a) "Economic loss" means economic detriment consisting only of allowable
789     expense, work loss, replacement services loss, and if injury causes death, dependent's economic
790     loss and dependent's replacement service loss.
791          (b) "Economic loss" includes economic detriment even if caused by pain and suffering
792     or physical impairment.
793          (c) "Economic loss" does not include noneconomic detriment.
794          (14) "Elderly victim" means an individual 60 years old or older who is a victim.
795          (15) "Fraudulent claim" means a filed reparations based on material misrepresentation
796     of fact and intended to deceive the reparations staff for the purpose of obtaining reparation
797     funds for which the claimant is not eligible.
798          (16) "Fund" means the Crime Victim Reparations Fund created in Section 63M-7-526.
799          (17) "Law enforcement officer" means the same as that term is defined in Section
800     53-13-103.

801          (18) (a) "Medical examination" means a physical examination necessary to document
802     criminally injurious conduct.
803          (b) "Medical examination" does not include mental health evaluations for the
804     prosecution and investigation of a crime.
805          (19) "Mental health counseling" means outpatient and inpatient counseling necessitated
806     as a result of criminally injurious conduct, is subject to rules made by the board in accordance
807     with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
808          (20) "Misconduct" means conduct by the victim that was attributable to the injury or
809     death of the victim as provided by rules made by the board in accordance with Title 63G,
810     Chapter 3, Utah Administrative Rulemaking Act.
811          (21) "Noneconomic detriment" means pain, suffering, inconvenience, physical
812     impairment, and other nonpecuniary damage, except as provided in this part.
813          (22) "Pecuniary loss" does not include loss attributable to pain and suffering except as
814     otherwise provided in this part.
815          (23) "Offender" means an individual who has violated Title 76, Utah Criminal Code,
816     through criminally injurious conduct regardless of whether the individual is arrested,
817     prosecuted, or convicted.
818          (24) "Offense" means a violation of Title 76, Utah Criminal Code.
819          (25) "Office" means the director, the reparations and assistance officers, and any other
820     staff employed for the purpose of carrying out the provisions of this part.
821          (26) "Perpetrator" means the individual who actually participated in the criminally
822     injurious conduct.
823          (27) "Reparations award" means money or other benefits provided to a claimant or to
824     another on behalf of a claimant after the day on which a reparations claim is approved by the
825     office.
826          (28) "Reparations claim" means a claimant's request or application made to the office
827     for a reparations award.
828          (29) (a) "Reparations officer" means an individual employed by the office to
829     investigate claims of victims and award reparations under this part.
830          (b) "Reparations officer" includes the director when the director is acting as a
831     reparations officer.

832          (30) "Replacement service loss" means expenses reasonably and necessarily incurred in
833     obtaining ordinary and necessary services in lieu of those the injured individual would have
834     performed, not for income but the benefit of the injured individual or the injured individual's
835     dependents if the injured individual had not been injured.
836          (31) (a) "Representative" means the victim, immediate family member, legal guardian,
837     attorney, conservator, executor, or an heir of an individual.
838          (b) "Representative" does not include a service provider or collateral source.
839          (32) "Restitution" means the same as that term is defined in Section 77-38b-102.
840          (33) "Secondary victim" means an individual who is traumatically affected by the
841     criminally injurious conduct subject to rules made by the board in accordance with Title 63G,
842     Chapter 3, Utah Administrative Rulemaking Act.
843          (34) "Service provider" means an individual or agency who provides a service to a
844     victim for a monetary fee, except attorneys as provided in Section 63M-7-524.
845          (35) "Serious bodily injury" means the same as that term is defined in Section
846     76-1-601.
847          (36) "Substantial bodily injury" means the same as that term is defined in Section
848     76-1-601.
849          (37) (a) "Victim" means an individual who suffers bodily or psychological injury or
850     death as a direct result of:
851          (i) criminally injurious conduct; or
852          (ii) the production of pornography in violation of Section 76-5b-201 or 76-5b-201.1 if
853     the individual is a minor.
854          (b) "Victim" does not include an individual who participated in or observed the judicial
855     proceedings against an offender unless otherwise provided by statute or rule made in
856     accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
857          (c) "Victim" includes a resident of this state who is injured or killed by an act of
858     terrorism, as defined in 18 U.S.C. Sec. 2331, committed outside of the United States.
859          (38) "Work loss" means loss of income from work the injured victim would have
860     performed if the injured victim had not been injured and expenses reasonably incurred by the
861     injured victim in obtaining services in lieu of those the injured victim would have performed
862     for income, reduced by any income from substitute work the injured victim was capable of

863     performing but unreasonably failed to undertake.
864          Section 6. Section 76-1-302 is amended to read:
865          76-1-302. Time limitations for prosecution of offenses -- Provisions if DNA
866     evidence would identify the defendant -- Commencement of prosecution.
867          (1) Except as otherwise provided, a prosecution for:
868          (a) a felony or negligent homicide shall be commenced within four years after it is
869     committed, except that prosecution for:
870          (i) forcible sexual abuse shall be commenced within eight years after the offense is
871     committed, if within four years after its commission the offense is reported to a law
872     enforcement agency; and
873          (ii) incest shall be commenced within eight years after the offense is committed, if
874     within four years after its commission the offense is reported to a law enforcement agency;
875          (b) a misdemeanor other than negligent homicide shall be commenced within two years
876     after it is committed; and
877          (c) any infraction shall be commenced within one year after it is committed.
878          (2) (a) Notwithstanding Subsection (1), prosecution for the offenses listed in
879     Subsections 76-3-203.5(1)(c)(i)(A) through [(BB)] (CC) may be commenced at any time if the
880     identity of the person who committed the crime is unknown but DNA evidence is collected that
881     would identify the person at a later date.
882          (b) Subsection (2)(a) does not apply if the statute of limitations on a crime has run as of
883     May 5, 2003, and no charges have been filed.
884          (3) If the statute of limitations would have run but for the provisions of Subsection (2)
885     and identification of a perpetrator is made through DNA, a prosecution shall be commenced
886     within four years of confirmation of the identity of the perpetrator.
887          (4) A prosecution is commenced upon:
888          (a) the finding and filing of an indictment by a grand jury;
889          (b) the filing of a complaint or information; or
890          (c) the issuance of a citation.
891          Section 7. Section 76-3-203.1 is amended to read:
892          76-3-203.1. Offenses committed in concert with three or more persons or in
893     relation to a criminal street gang -- Notice -- Enhanced penalties.

894          (1) As used in this section:
895          (a) "Criminal street gang" means the same as that term is defined in Section 76-9-802.
896          (b) "In concert with three or more persons" means:
897          (i) the defendant was aided or encouraged by at least three other persons in committing
898     the offense and was aware of this aid or encouragement; and
899          (ii) each of the other persons:
900          (A) was physically present; and
901          (B) participated as a party to any offense listed in Subsection (4), (5), or (6).
902          (c) "In concert with three or more persons" means, regarding intent:
903          (i) other persons participating as parties need not have the intent to engage in the same
904     offense or degree of offense as the defendant; and
905          (ii) a minor is a party if the minor's actions would cause the minor to be a party if the
906     minor were an adult.
907          (2) A person who commits any offense in accordance with this section is subject to an
908     enhanced penalty as provided in Subsection (4), (5), or (6) if the trier of fact finds beyond a
909     reasonable doubt that the person acted:
910          (a) in concert with three or more persons;
911          (b) for the benefit of, at the direction of, or in association with any criminal street gang
912     as defined in Section 76-9-802; or
913          (c) to gain recognition, acceptance, membership, or increased status with a criminal
914     street gang as defined in Section 76-9-802.
915          (3) The prosecuting attorney, or grand jury if an indictment is returned, shall cause to
916     be subscribed upon the information or indictment notice that the defendant is subject to the
917     enhanced penalties provided under this section.
918          (4) (a) For an offense listed in Subsection (4)(b), a person may be charged as follows:
919          (i) for a class B misdemeanor, as a class A misdemeanor; and
920          (ii) for a class A misdemeanor, as a third degree felony.
921          (b) The following offenses are subject to Subsection (4)(a):
922          (i) criminal mischief as defined in Section 76-6-106; and
923          (ii) graffiti as defined in Section 76-6-107.
924          (5) (a) For an offense listed in Subsection (5)(b), a person may be charged as follows:

925          (i) for a class B misdemeanor, as a class A misdemeanor;
926          (ii) for a class A misdemeanor, as a third degree felony; and
927          (iii) for a third degree felony, as a second degree felony.
928          (b) The following offenses are subject to Subsection (5)(a):
929          (i) burglary, if committed in a dwelling as defined in Subsection 76-6-202(2);
930          (ii) any offense of obstructing government operations under [Title 76,] Chapter 8, Part
931     3, Obstructing Governmental Operations, except Sections 76-8-302, 76-8-303, 76-8-307,
932     76-8-308, and 76-8-312;
933          (iii) tampering with a witness or other violation of Section 76-8-508;
934          (iv) retaliation against a witness, victim, informant, or other violation of Section
935     76-8-508.3;
936          (v) extortion or bribery to dismiss a criminal proceeding as defined in Section
937     76-8-509;
938          (vi) any weapons offense under[ Title 76,] Chapter 10, Part 5, Weapons; and
939          (vii) any violation of [Title 76,] Chapter 10, Part 16, Pattern of Unlawful Activity Act.
940          (6) (a) For an offense listed in Subsection (6)(b), a person may be charged as follows:
941          (i) for a class B misdemeanor, as a class A misdemeanor;
942          (ii) for a class A misdemeanor, as a third degree felony;
943          (iii) for a third degree felony, as a second degree felony; and
944          (iv) for a second degree felony, as a first degree felony.
945          (b) The following offenses are subject to Subsection (6)(a):
946          (i) assault and related offenses under [Title 76,] Chapter 5, Part 1, Assault and Related
947     Offenses;
948          (ii) any criminal homicide offense under [Title 76,] Chapter 5, Part 2, Criminal
949     Homicide;
950          (iii) kidnapping and related offenses under [Title 76,] Chapter 5, Part 3, Kidnapping,
951     Trafficking, and Smuggling;
952          (iv) any felony sexual offense under [Title 76,] Chapter 5, Part 4, Sexual Offenses;
953          (v) sexual exploitation of a minor as defined in Section 76-5b-201;
954          (vi) aggravated sexual exploitation of a minor as defined in Section 76-5b-201.1;
955          [(vi)] (vii) robbery and aggravated robbery under [Title 76,] Chapter 6, Part 3,

956     Robbery; and
957          [(vii)] (viii) aggravated exploitation of prostitution under Section 76-10-1306.
958          (7) The sentence imposed under Subsection (4), (5), or (6) may be suspended and the
959     individual placed on probation for the higher level of offense.
960          (8) It is not a bar to imposing the enhanced penalties under this section that the persons
961     with whom the actor is alleged to have acted in concert are not identified, apprehended,
962     charged, or convicted, or that any of those persons are charged with or convicted of a different
963     or lesser offense.
964          Section 8. Section 76-3-203.5 is amended to read:
965          76-3-203.5. Habitual violent offender -- Definition -- Procedure -- Penalty.
966          (1) As used in this section:
967          (a) "Felony" means any violation of a criminal statute of the state, any other state, the
968     United States, or any district, possession, or territory of the United States for which the
969     maximum punishment the offender may be subjected to exceeds one year in prison.
970          (b) "Habitual violent offender" means a person convicted within the state of any violent
971     felony and who on at least two previous occasions has been convicted of a violent felony and
972     committed to either prison in Utah or an equivalent correctional institution of another state or
973     of the United States either at initial sentencing or after revocation of probation.
974          (c) "Violent felony" means:
975          (i) any of the following offenses, or any attempt, solicitation, or conspiracy to commit
976     any of the following offenses punishable as a felony:
977          (A) aggravated arson, arson, knowingly causing a catastrophe, and criminal mischief,
978     [Title 76,] Chapter 6, Part 1, Property Destruction;
979          (B) assault by prisoner, Section 76-5-102.5;
980          (C) disarming a police officer, Section 76-5-102.8;
981          (D) aggravated assault, Section 76-5-103;
982          (E) aggravated assault by prisoner, Section 76-5-103.5;
983          (F) mayhem, Section 76-5-105;
984          (G) stalking, Subsection 76-5-106.5(2) or (3);
985          (H) threat of terrorism, Section 76-5-107.3;
986          (I) child abuse, Subsection 76-5-109(2)(a) or (b);

987          (J) commission of domestic violence in the presence of a child, Section 76-5-109.1;
988          (K) abuse or neglect of a child with a disability, Section 76-5-110;
989          (L) abuse, neglect, or exploitation of a vulnerable adult, Section 76-5-111;
990          (M) endangerment of a child or vulnerable adult, Section 76-5-112.5;
991          (N) criminal homicide offenses under [Title 76,] Chapter 5, Part 2, Criminal Homicide;
992          (O) kidnapping, child kidnapping, and aggravated kidnapping under [Title 76,] Chapter
993     5, Part 3, Kidnapping, Trafficking, and Smuggling;
994          (P) rape, Section 76-5-402;
995          (Q) rape of a child, Section 76-5-402.1;
996          (R) object rape, Section 76-5-402.2;
997          (S) object rape of a child, Section 76-5-402.3;
998          (T) forcible sodomy, Section 76-5-403;
999          (U) sodomy on a child, Section 76-5-403.1;
1000          (V) forcible sexual abuse, Section 76-5-404;
1001          (W) aggravated sexual abuse of a child or sexual abuse of a child, Section 76-5-404.1;
1002          (X) aggravated sexual assault, Section 76-5-405;
1003          (Y) sexual exploitation of a minor, Section 76-5b-201;
1004          (Z) aggravated sexual exploitation of a minor, Section 76-5b-201.1;
1005          [(Z)] (AA) sexual exploitation of a vulnerable adult, Section 76-5b-202;
1006          [(AA)] (BB) aggravated burglary and burglary of a dwelling under [Title 76,] Chapter
1007     6, Part 2, Burglary and Criminal Trespass;
1008          [(BB)] (CC) aggravated robbery and robbery under Title 76, Chapter 6, Part 3,
1009     Robbery;
1010          [(CC)] (DD) theft by extortion under Subsection 76-6-406(2)(a) or (b);
1011          [(DD)] (EE) tampering with a witness under Subsection 76-8-508(1);
1012          [(EE)] (FF) retaliation against a witness, victim, or informant under Section
1013     76-8-508.3;
1014          [(FF)] (GG) tampering with a juror under Subsection 76-8-508.5(2)(c);
1015          [(GG)] (HH) extortion to dismiss a criminal proceeding under Section 76-8-509 if by
1016     any threat or by use of force theft by extortion has been committed pursuant to Subsections
1017     76-6-406(2)(a), (b), and (i);

1018          [(HH)] (II) possession, use, or removal of explosive, chemical, or incendiary devices
1019     under Subsections 76-10-306(3) through (6);
1020          [(II)] (JJ) unlawful delivery of explosive, chemical, or incendiary devices under
1021     Section 76-10-307;
1022          [(JJ)] (KK) purchase or possession of a dangerous weapon or handgun by a restricted
1023     person under Section 76-10-503;
1024          [(KK)] (LL) unlawful discharge of a firearm under Section 76-10-508;
1025          [(LL)] (MM) aggravated exploitation of prostitution under Subsection
1026     76-10-1306(1)(a);
1027          [(MM)] (NN) bus hijacking under Section 76-10-1504; and
1028          [(NN)] (OO) discharging firearms and hurling missiles under Section 76-10-1505; or
1029          (ii) any felony violation of a criminal statute of any other state, the United States, or
1030     any district, possession, or territory of the United States which would constitute a violent
1031     felony as defined in this Subsection (1) if committed in this state.
1032          (2) If a person is convicted in this state of a violent felony by plea or by verdict and the
1033     trier of fact determines beyond a reasonable doubt that the person is a habitual violent offender
1034     under this section, the penalty for a:
1035          (a) third degree felony is as if the conviction were for a first degree felony;
1036          (b) second degree felony is as if the conviction were for a first degree felony; or
1037          (c) first degree felony remains the penalty for a first degree penalty except:
1038          (i) the convicted person is not eligible for probation; and
1039          (ii) the Board of Pardons and Parole shall consider that the convicted person is a
1040     habitual violent offender as an aggravating factor in determining the length of incarceration.
1041          (3) (a) The prosecuting attorney, or grand jury if an indictment is returned, shall
1042     provide notice in the information or indictment that the defendant is subject to punishment as a
1043     habitual violent offender under this section. Notice shall include the case number, court, and
1044     date of conviction or commitment of any case relied upon by the prosecution.
1045          (b) (i) The defendant shall serve notice in writing upon the prosecutor if the defendant
1046     intends to deny that:
1047          (A) the defendant is the person who was convicted or committed;
1048          (B) the defendant was represented by counsel or had waived counsel; or

1049          (C) the defendant's plea was understandingly or voluntarily entered.
1050          (ii) The notice of denial shall be served not later than five days prior to trial and shall
1051     state in detail the defendant's contention regarding the previous conviction and commitment.
1052          (4) (a) If the defendant enters a denial under Subsection (3)(b) and if the case is tried to
1053     a jury, the jury may not be told, until after it returns its verdict on the underlying felony charge,
1054     of the:
1055          (i) defendant's previous convictions for violent felonies, except as otherwise provided
1056     in the Utah Rules of Evidence; or
1057          (ii) allegation against the defendant of being a habitual violent offender.
1058          (b) If the jury's verdict is guilty, the defendant shall be tried regarding the allegation of
1059     being an habitual violent offender by the same jury, if practicable, unless the defendant waives
1060     the jury, in which case the allegation shall be tried immediately to the court.
1061          (c) (i) Before or at the time of sentencing the trier of fact shall determine if this section
1062     applies.
1063          (ii) The trier of fact shall consider any evidence presented at trial and the prosecution
1064     and the defendant shall be afforded an opportunity to present any necessary additional
1065     evidence.
1066          (iii) Before sentencing under this section, the trier of fact shall determine whether this
1067     section is applicable beyond a reasonable doubt.
1068          (d) If any previous conviction and commitment is based upon a plea of guilty or no
1069     contest, there is a rebuttable presumption that the conviction and commitment were regular and
1070     lawful in all respects if the conviction and commitment occurred after January 1, 1970. If the
1071     conviction and commitment occurred prior to January 1, 1970, the burden is on the prosecution
1072     to establish by a preponderance of the evidence that the defendant was then represented by
1073     counsel or had lawfully waived the right to have counsel present, and that the defendant's plea
1074     was understandingly and voluntarily entered.
1075          (e) If the trier of fact finds this section applicable, the court shall enter that specific
1076     finding on the record and shall indicate in the order of judgment and commitment that the
1077     defendant has been found by the trier of fact to be a habitual violent offender and is sentenced
1078     under this section.
1079          (5) (a) The sentencing enhancement provisions of Section 76-3-407 supersede the

1080     provisions of this section.
1081          (b) Notwithstanding Subsection (5)(a), the "violent felony" offense defined in
1082     Subsection (1)(c) shall include any felony sexual offense violation of [Title 76,] Chapter 5, Part
1083     4, Sexual Offenses, to determine if the convicted person is a habitual violent offender.
1084          (6) The sentencing enhancement described in this section does not apply if:
1085          (a) the offense for which the person is being sentenced is:
1086          (i) a grievous sexual offense;
1087          (ii) child kidnapping, Section 76-5-301.1;
1088          (iii) aggravated kidnapping, Section 76-5-302; or
1089          (iv) forcible sexual abuse, Section 76-5-404; and
1090          (b) applying the sentencing enhancement provided for in this section would result in a
1091     lower maximum penalty than the penalty provided for under the section that describes the
1092     offense for which the person is being sentenced.
1093          Section 9. Section 76-3-407 is amended to read:
1094          76-3-407. Repeat and habitual sex offenders -- Additional prison term for prior
1095     felony convictions.
1096          (1) As used in this section:
1097          (a) "Prior sexual offense" means:
1098          (i) a felony offense described in [Title 76,] Chapter 5, Part 4, Sexual Offenses;
1099          (ii) sexual exploitation of a minor, Section 76-5b-201;
1100          (iii) aggravated sexual exploitation of a minor, Section 76-5b-201.1;
1101          [(iii)] (iv) a felony offense of enticing a minor over the Internet, Section 76-4-401;
1102          [(iv)] (v) a felony attempt to commit an offense described in Subsections (1)(a)(i)
1103     through [(iii)] (iv); or
1104          [(v)] (vi) an offense in another state, territory, or district of the United States that, if
1105     committed in Utah, would constitute an offense described in Subsections (1)(a)(i) through
1106     [(iv)] (v).
1107          (b) "Sexual offense" means:
1108          (i) an offense that is a felony of the second or third degree, or an attempted offense,
1109     which attempt is a felony of the second or third degree, described in [Title 76,] Chapter 5, Part
1110     4, Sexual Offenses;

1111          (ii) sexual exploitation of a minor, Section 76-5b-201;
1112          (iii) aggravated sexual exploitation of a minor, Section 76-5b-201.1;
1113          [(iii)] (iv) a felony offense of enticing a minor over the Internet, Section 76-4-401;
1114          [(iv)] (v) a felony attempt to commit an offense described in [Subsection (1)(b)(ii) or
1115     (iii)] Subsections (1)(b)(ii) through (iv); or
1116          [(v)] (vi) an offense in another state, territory, or district of the United States that, if
1117     committed in Utah, would constitute an offense described in Subsections (1)(b)(i) through
1118     [(iv)] (v).
1119          (2) Notwithstanding any other provision of law, the maximum penalty for a sexual
1120     offense is increased by five years for each conviction of the defendant for a prior sexual offense
1121     that arose from a separate criminal episode, if the trier of fact finds that:
1122          (a) the defendant was convicted of a prior sexual offense; and
1123          (b) the defendant was convicted of the prior sexual offense described in Subsection
1124     (2)(a) before the defendant was convicted of the sexual offense for which the defendant is
1125     being sentenced.
1126          (3) The increased maximum term described in Subsection (2) shall be in addition to,
1127     and consecutive to, any other prison term served by the defendant.
1128          Section 10. Section 76-5b-201 is amended to read:
1129          76-5b-201. Sexual exploitation of a minor -- Offenses.
1130          [(1) A person is guilty of sexual exploitation of a minor:]
1131          [(a) when the person:]
1132          [(i) knowingly produces, possesses, or possesses with intent to distribute child
1133     pornography; or]
1134          [(ii) intentionally distributes or views child pornography; or]
1135          [(b) if the person is a minor's parent or legal guardian and knowingly consents to or
1136     permits the minor to be sexually exploited as described in Subsection (1)(a).]
1137          [(2) (a) Except as provided in Subsection (2)(b), sexual exploitation of a minor is a
1138     second degree felony.]
1139          [(b) A violation of Subsection (1) for knowingly producing child pornography is a first
1140     degree felony if the person produces original child pornography depicting a first degree felony
1141     that involves:]

1142          [(i) the person or another person engaging in conduct with the minor that is a violation
1143     of:]
1144          [(A) Section 76-5-402.1, rape of a child;]
1145          [(B) Section 76-5-402.3, object rape of a child;]
1146          [(C) Section 76-5-403.1, sodomy on a child; or]
1147          [(D) Section 76-5-404.1, aggravated sexual abuse of a child; or]
1148          [(ii) the minor being physically abused, as defined in Section 80-1-102.]
1149          (1) An actor commits sexual exploitation of a minor when the actor knowingly
1150     possesses or intentionally views child pornography.
1151          (2) A violation of Subsection (1) is a second degree felony.
1152          (3) It is a separate offense under this section:
1153          (a) for each minor depicted in the child pornography; and
1154          (b) for each time the same minor is depicted in different child pornography.
1155          (4) (a) It is an affirmative defense to a charge of violating this section that no minor
1156     was actually depicted in the visual depiction or used in producing or advertising the visual
1157     depiction.
1158          (b) For a charge of violating this section [for knowingly possessing or intentionally
1159     viewing child pornography], it is an affirmative defense that:
1160          (i) the defendant:
1161          (A) did not solicit the child pornography from the minor depicted in the child
1162     pornography;
1163          (B) is not more than two years older than the minor depicted in the child pornography;
1164     and
1165          (C) upon request of a law enforcement agent or the minor depicted in the child
1166     pornography, removes from an electronic device or destroys the child pornography and all
1167     copies of the child pornography in the defendant's possession; and
1168          (ii) the child pornography does not depict an offense under [Title 76,] Chapter 5, Part
1169     4, Sexual Offenses.
1170          (5) In proving a violation of this section in relation to an identifiable minor, proof of
1171     the actual identity of the identifiable minor is not required.
1172          (6) This section may not be construed to impose criminal or civil liability on:

1173          (a) an entity or an employee, director, officer, or agent of an entity when acting within
1174     the scope of employment, for the good faith performance of:
1175          (i) reporting or data preservation duties required under federal or state law; or
1176          (ii) implementing a policy of attempting to prevent the presence of child pornography
1177     on tangible or intangible property, or of detecting and reporting the presence of child
1178     pornography on the property;
1179          (b) a law enforcement officer acting within the scope of a criminal investigation;
1180          (c) an employee of a court who may be required to view child pornography during the
1181     course of and within the scope of the employee's employment;
1182          (d) a juror who may be required to view child pornography during the course of the
1183     individual's service as a juror;
1184          (e) an attorney or employee of an attorney who is required to view child pornography
1185     during the course of a judicial process and while acting within the scope of employment;
1186          (f) an employee of the Department of Human Services who is required to view child
1187     pornography within the scope of the employee's employment; or
1188          (g) an attorney who is required to view child pornography within the scope of the
1189     attorney's responsibility to represent the Department of Human Services, including the
1190     divisions and offices within the Department of Human Services.
1191          Section 11. Section 76-5b-201.1 is enacted to read:
1192          76-5b-201.1. Aggravated sexual exploitation of a minor.
1193          (1) As used in this section, "physical abuse" or "physically abused" means the same as
1194     the term "physical abuse" is defined in Section 80-1-102.
1195          (2) An actor commits aggravated sexual exploitation of a minor if the actor:
1196          (a) intentionally distributes child pornography;
1197          (b) knowingly produces child pornography; or
1198          (c) is the minor's parent or legal guardian and knowingly consents to or permits the
1199     minor to be sexually exploited as described in Subsection (2)(a) or (b) or Section 76-5b-201.
1200          (3) (a) Except as provided in Subsection (3)(b) or (c), a violation of Subsection (2) is a
1201     first degree felony.
1202          (b) If an actor is under 18 years old at the time of the offense, a violation of Subsection
1203     (2) is a second degree felony.

1204          (c) A violation of Subsection (2)(a) is a second degree felony if the child pornography
1205     depicts an individual who is:
1206          (i) 14 years old or older; or
1207          (ii) pubescent.
1208          (4) It is a separate offense under this section:
1209          (a) for each minor depicted in the child pornography; and
1210          (b) for each time the same minor is depicted in different child pornography.
1211          (5) (a) It is an affirmative defense to a charge of violating this section that no minor
1212     was actually depicted in the visual depiction or used in producing or advertising the visual
1213     depiction.
1214          (b) In proving a violation of this section in relation to an identifiable minor, proof of
1215     the actual identity of the identifiable minor is not required.
1216          (6) This section may not be construed to impose criminal or civil liability on:
1217          (a) an entity or an employee, director, officer, or agent of an entity when acting within
1218     the scope of employment, for the good faith performance of:
1219          (i) reporting or data preservation duties required under federal or state law; or
1220          (ii) implementing a policy of attempting to prevent the presence of child pornography
1221     on tangible or intangible property, or of detecting and reporting the presence of child
1222     pornography on the property;
1223          (b) a law enforcement officer acting within the scope of a criminal investigation;
1224          (c) an employee of a court who may be required to view child pornography during the
1225     course of and within the scope of the employee's employment;
1226          (d) a juror who may be required to view child pornography during the course of the
1227     individual's service as a juror;
1228          (e) an attorney or employee of an attorney who is required to view child pornography
1229     during the course of a judicial process and while acting within the scope of employment;
1230          (f) an employee of the Department of Human Services who is required to view child
1231     pornography within the scope of the employee's employment; or
1232          (g) an attorney who is required to view child pornography within the scope of the
1233     attorney's responsibility to represent the Department of Human Services, including the
1234     divisions and offices within the Department of Human Services.

1235          Section 12. Section 76-5b-205 is amended to read:
1236          76-5b-205. Unlawful distribution of a counterfeit intimate image -- Penalty.
1237          (1) As used in this section:
1238          (a) "Child" means an individual under the age of 18.
1239          (b) "Counterfeit intimate image" means any visual depiction, photograph, film, video,
1240     recording, picture, or computer or computer-generated image or picture, whether made or
1241     produced by electronic, mechanical, or other means, that has been edited, manipulated, or
1242     altered to depict the likeness of an identifiable individual and purports to, or is made to appear
1243     to, depict that individual's:
1244          (i) exposed human male or female genitals or pubic area, with less than an opaque
1245     covering;
1246          (ii) a female breast with less than an opaque covering, or any portion of the female
1247     breast below the top of the areola; or
1248          (iii) the individual engaged in any sexually explicit conduct or simulated sexually
1249     explicit conduct.
1250          (c) "Distribute" means the same as that term is defined in Section 76-5b-203.
1251          (d) "Sexually explicit conduct" means the same as that term is defined in Section
1252     76-5b-203.
1253          (e) "Simulated sexually explicit conduct" means the same as that term is defined in
1254     Section 76-5b-203.
1255          (2) An actor commits the offense of unlawful distribution of a counterfeit intimate
1256     image if the actor knowingly or intentionally distributes a counterfeit intimate image that the
1257     actor knows or should reasonably know would cause a reasonable person to suffer emotional or
1258     physical distress or harm, if:
1259          (a) the actor has not received consent from the depicted individual to distribute the
1260     counterfeit intimate image; and
1261          (b) the counterfeit intimate image was created or provided by the actor without the
1262     knowledge and consent of the depicted individual.
1263          (3) An individual commits aggravated unlawful distribution of a counterfeit intimate
1264     image if, in committing the offense described in Subsection (2), the individual depicted in the
1265     counterfeit intimate image is a child.

1266          (4) This section does not apply to:
1267          (a) (i) lawful practices of law enforcement agencies;
1268          (ii) prosecutorial agency functions;
1269          (iii) the reporting of a criminal offense;
1270          (iv) court proceedings or any other judicial proceeding; or
1271          (v) lawful and generally accepted medical practices and procedures;
1272          (b) a counterfeit intimate image if the individual portrayed in the image voluntarily
1273     allows public exposure of the image;
1274          (c) a counterfeit intimate image that is portrayed in a lawful commercial setting; or
1275          (d) a counterfeit intimate image that is related to a matter of public concern or interest
1276     or protected by the First Amendment to the United States Constitution or Article I, Sections 1
1277     and 15 of the Utah Constitution.
1278          (5) (a) This section does not apply to an Internet service provider or interactive
1279     computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
1280     communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service,
1281     information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a
1282     commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined
1283     in 47 U.S.C. Sec. 522, if:
1284          (i) the distribution of a counterfeit intimate image by the Internet service provider
1285     occurs only incidentally through the provider's function of:
1286          (A) transmitting or routing data from one person to another person; or
1287          (B) providing a connection between one person and another person;
1288          (ii) the provider does not intentionally aid or abet in the distribution of the counterfeit
1289     intimate image; and
1290          (iii) the provider does not knowingly receive from or through a person who distributes
1291     the counterfeit intimate image a fee greater than the fee generally charged by the provider, as a
1292     specific condition for permitting the person to distribute the counterfeit intimate image.
1293          (b) This section does not apply to a hosting company, as defined in Section
1294     76-10-1230, if:
1295          (i) the distribution of a counterfeit intimate image by the hosting company occurs only
1296     incidentally through the hosting company's function of providing data storage space or data

1297     caching to a person;
1298          (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
1299     of the counterfeit intimate image;
1300          (iii) the hosting company does not knowingly receive from or through a person who
1301     distributes the counterfeit intimate image a fee greater than the fee generally charged by the
1302     provider, as a specific condition for permitting the person to distribute, store, or cache the
1303     counterfeit intimate image; and
1304          (iv) the hosting company immediately removes the counterfeit intimate image upon
1305     notice from a law enforcement agency, prosecutorial agency, or the individual purportedly
1306     depicted in the counterfeit intimate image.
1307          (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
1308     section if it complies with Section 76-10-1231.
1309          (6) This section does not apply to an actor who engages in conduct that constitutes a
1310     violation of this section to the extent that the actor is chargeable, for the same conduct, under
1311     Section 76-5b-201, sexual exploitation of a minor, or Section 76-5b-201.1, aggravated sexual
1312     exploitation of a minor.
1313          (7) (a) Except as provided in Subsection (7)(b), knowing or intentional unlawful
1314     distribution of a counterfeit intimate image is a class A misdemeanor.
1315          (b) Knowing or intentional unlawful distribution of a counterfeit intimate image is a
1316     third degree felony on a second or subsequent conviction for an offense under this section that
1317     arises from a separate criminal episode as defined in Section 76-1-401.
1318          (c) Except as provided in Subsection (7)(d), knowing or intentional aggravated
1319     unlawful distribution of a counterfeit intimate image is a third degree felony.
1320          (d) Knowing or intentional aggravated unlawful distribution of a counterfeit intimate
1321     image is a second degree felony on a second or subsequent conviction for an offense under this
1322     section that arises from a separate criminal episode as defined in Section 76-1-401.
1323          Section 13. Section 76-9-702.5 is amended to read:
1324          76-9-702.5. Lewdness involving a child.
1325          (1) As used in this section, "in the presence of" includes within visual contact through
1326     an electronic device.
1327          (2) A person is guilty of lewdness involving a child if the person under circumstances

1328     not amounting to rape of a child, object rape of a child, sodomy upon a child, sexual abuse of a
1329     child, aggravated sexual abuse of a child, or an attempt to commit any of those offenses,
1330     intentionally or knowingly:
1331          (a) does any of the following in the presence of a child who is under 14 years of age:
1332          (i) performs an act of sexual intercourse or sodomy;
1333          (ii) exposes his or her genitals, the female breast below the top of the areola, the
1334     buttocks, the anus, or the pubic area:
1335          (A) in a public place; or
1336          (B) in a private place under circumstances the person should know will likely cause
1337     affront or alarm or with the intent to arouse or gratify the sexual desire of the actor or the child;
1338          (iii) masturbates; or
1339          (iv) performs any other act of lewdness; or
1340          (b) under circumstances not amounting to sexual exploitation of a child under Section
1341     76-5b-201 or aggravated sexual exploitation of a child under Section 76-5b-201.1, causes a
1342     child under the age of 14 years to expose his or her genitals, anus, or breast, if female, to the
1343     actor, with the intent to arouse or gratify the sexual desire of the actor or the child.
1344          (3) (a) Lewdness involving a child is a class A misdemeanor, except under Subsection
1345     (3)(b).
1346          (b) Lewdness involving a child is a third degree felony if at the time of the violation:
1347          (i) the person is a sex offender as defined in Section 77-27-21.7; or
1348          (ii) the person has previously been convicted of a violation of this section.
1349          Section 14. Section 76-10-1302 is amended to read:
1350          76-10-1302. Prostitution.
1351          (1) An individual except for a child under Section 76-10-1315 is guilty of prostitution
1352     when the individual:
1353          (a) engages, offers, or agrees to engage in any sexual activity with another individual
1354     for a fee, or the functional equivalent of a fee;
1355          (b) takes steps in arranging a meeting through any form of advertising, agreeing to
1356     meet, and meeting at an arranged place for the purpose of sexual activity in exchange for a fee
1357     or the functional equivalent of a fee; or
1358          (c) loiters in or within view of any public place for the purpose of being hired to

1359     engage in sexual activity.
1360          (2) (a) Except as provided in Subsection (2)(b) and Section 76-10-1309, prostitution is
1361     a class B misdemeanor.
1362          (b) Except as provided in Section 76-10-1309, an individual who is convicted a second
1363     time, and on all subsequent convictions, of a subsequent offense of prostitution under this
1364     section or under a local ordinance adopted in compliance with Section 76-10-1307, is guilty of
1365     a class A misdemeanor.
1366          (3) A prosecutor may not prosecute an individual for a violation of Subsection (1) if
1367     the individual engages in a violation of Subsection (1) at or near the time the individual
1368     witnesses or is a victim of any of the following offenses, or an attempt to commit any of the
1369     following offenses, and the individual reports the offense or attempt to law enforcement in
1370     good faith:
1371          (a) assault, Section 76-5-102;
1372          (b) aggravated assault, Section 76-5-103;
1373          (c) mayhem, Section 76-5-105;
1374          (d) aggravated murder, murder, manslaughter, negligent homicide, child abuse
1375     homicide, or homicide by assault under [Title 76,] Chapter 5, Part 2, Criminal Homicide;
1376          (e) kidnapping, child kidnapping, aggravated kidnapping, human trafficking or
1377     aggravated human trafficking, human smuggling or aggravated human smuggling, or human
1378     trafficking of a child under [Title 76,] Chapter 5, Part 3, Kidnapping, Trafficking, and
1379     Smuggling;
1380          (f) rape, Section 76-5-402;
1381          (g) rape of a child, Section 76-5-402.1;
1382          (h) object rape, Section 76-5-402.2;
1383          (i) object rape of a child, Section 76-5-402.3;
1384          (j) forcible sodomy, Section 76-5-403;
1385          (k) sodomy on a child, Section 76-5-403.1;
1386          (l) forcible sexual abuse, Section 76-5-404;
1387          (m) aggravated sexual abuse of a child or sexual abuse of a child, Section 76-5-404.1;
1388          (n) aggravated sexual assault, Section 76-5-405;
1389          (o) sexual exploitation of a minor, Section 76-5b-201;

1390          (p) aggravated sexual exploitation of a minor, Section 76-5b-201.1;
1391          [(p)] (q) sexual exploitation of a vulnerable adult, Section 76-5b-202;
1392          [(q)] (r) aggravated burglary or burglary of a dwelling under [Title 76,] Chapter 6, Part
1393     2, Burglary and Criminal Trespass;
1394          [(r)] (s) aggravated robbery or robbery under [Title 76,] Chapter 6, Part 3, Robbery; or
1395          [(s)] (t) theft by extortion under Subsection 76-6-406(2)(a) or (b).
1396          Section 15. Section 76-10-1602 is amended to read:
1397          76-10-1602. Definitions.
1398          As used in this part:
1399          (1) "Enterprise" means any individual, sole proprietorship, partnership, corporation,
1400     business trust, association, or other legal entity, and any union or group of individuals
1401     associated in fact although not a legal entity, and includes illicit as well as licit entities.
1402          (2) "Pattern of unlawful activity" means engaging in conduct which constitutes the
1403     commission of at least three episodes of unlawful activity, which episodes are not isolated, but
1404     have the same or similar purposes, results, participants, victims, or methods of commission, or
1405     otherwise are interrelated by distinguishing characteristics. Taken together, the episodes shall
1406     demonstrate continuing unlawful conduct and be related either to each other or to the
1407     enterprise. At least one of the episodes comprising a pattern of unlawful activity shall have
1408     occurred after July 31, 1981. The most recent act constituting part of a pattern of unlawful
1409     activity as defined by this part shall have occurred within five years of the commission of the
1410     next preceding act alleged as part of the pattern.
1411          (3) "Person" includes any individual or entity capable of holding a legal or beneficial
1412     interest in property, including state, county, and local governmental entities.
1413          (4) "Unlawful activity" means to directly engage in conduct or to solicit, request,
1414     command, encourage, or intentionally aid another person to engage in conduct which would
1415     constitute any offense described by the following crimes or categories of crimes, or to attempt
1416     or conspire to engage in an act which would constitute any of those offenses, regardless of
1417     whether the act is in fact charged or indicted by any authority or is classified as a misdemeanor
1418     or a felony:
1419          (a) any act prohibited by the criminal provisions of Title 13, Chapter 10, Unauthorized
1420     Recording Practices Act;

1421          (b) any act prohibited by the criminal provisions of Title 19, Environmental Quality
1422     Code, Sections 19-1-101 through 19-7-109;
1423          (c) taking, destroying, or possessing wildlife or parts of wildlife for the primary
1424     purpose of sale, trade, or other pecuniary gain, in violation of Title 23, Wildlife Resources
1425     Code of Utah, or Section 23-20-4;
1426          (d) false claims for medical benefits, kickbacks, and any other act prohibited by Title
1427     26, Chapter 20, Utah False Claims Act, Sections 26-20-1 through 26-20-12;
1428          (e) any act prohibited by the criminal provisions of Title 32B, Chapter 4, Criminal
1429     Offenses and Procedure Act;
1430          (f) any act prohibited by the criminal provisions of Title 57, Chapter 11, Utah Uniform
1431     Land Sales Practices Act;
1432          (g) any act prohibited by the criminal provisions of Title 58, Chapter 37, Utah
1433     Controlled Substances Act, or Title 58, Chapter 37b, Imitation Controlled Substances Act,
1434     Title 58, Chapter 37c, Utah Controlled Substance Precursor Act, or Title 58, Chapter 37d,
1435     Clandestine Drug Lab Act;
1436          (h) any act prohibited by the criminal provisions of Title 61, Chapter 1, Utah Uniform
1437     Securities Act;
1438          (i) any act prohibited by the criminal provisions of Title 63G, Chapter 6a, Utah
1439     Procurement Code;
1440          (j) assault or aggravated assault, Sections 76-5-102 and 76-5-103;
1441          (k) a threat of terrorism, Section 76-5-107.3;
1442          (l) criminal homicide, Sections 76-5-201, 76-5-202, and 76-5-203;
1443          (m) kidnapping or aggravated kidnapping, Sections 76-5-301 and 76-5-302;
1444          (n) human trafficking, human trafficking of a child, human smuggling, or aggravated
1445     human trafficking, Sections 76-5-308, 76-5-308.5, 76-5-309, and 76-5-310;
1446          (o) sexual exploitation of a minor or aggravated sexual exploitation of a minor,
1447     [Section] Sections 76-5b-201 and 76-5b-201.1;
1448          (p) arson or aggravated arson, Sections 76-6-102 and 76-6-103;
1449          (q) causing a catastrophe, Section 76-6-105;
1450          (r) burglary or aggravated burglary, Sections 76-6-202 and 76-6-203;
1451          (s) burglary of a vehicle, Section 76-6-204;

1452          (t) manufacture or possession of an instrument for burglary or theft, Section 76-6-205;
1453          (u) robbery or aggravated robbery, Sections 76-6-301 and 76-6-302;
1454          (v) theft, Section 76-6-404;
1455          (w) theft by deception, Section 76-6-405;
1456          (x) theft by extortion, Section 76-6-406;
1457          (y) receiving stolen property, Section 76-6-408;
1458          (z) theft of services, Section 76-6-409;
1459          (aa) forgery, Section 76-6-501;
1460          (bb) fraudulent use of a credit card, Sections 76-6-506.2, 76-6-506.3, 76-6-506.5, and
1461     76-6-506.6;
1462          (cc) deceptive business practices, Section 76-6-507;
1463          (dd) bribery or receiving bribe by person in the business of selection, appraisal, or
1464     criticism of goods, Section 76-6-508;
1465          (ee) bribery of a labor official, Section 76-6-509;
1466          (ff) defrauding creditors, Section 76-6-511;
1467          (gg) acceptance of deposit by insolvent financial institution, Section 76-6-512;
1468          (hh) unlawful dealing with property by fiduciary, Section 76-6-513;
1469          (ii) bribery or threat to influence contest, Section 76-6-514;
1470          (jj) making a false credit report, Section 76-6-517;
1471          (kk) criminal simulation, Section 76-6-518;
1472          (ll) criminal usury, Section 76-6-520;
1473          (mm) fraudulent insurance act, Section 76-6-521;
1474          (nn) retail theft, Section 76-6-602;
1475          (oo) computer crimes, Section 76-6-703;
1476          (pp) identity fraud, Section 76-6-1102;
1477          (qq) mortgage fraud, Section 76-6-1203;
1478          (rr) sale of a child, Section 76-7-203;
1479          (ss) bribery to influence official or political actions, Section 76-8-103;
1480          (tt) threats to influence official or political action, Section 76-8-104;
1481          (uu) receiving bribe or bribery by public servant, Section 76-8-105;
1482          (vv) receiving bribe or bribery for endorsement of person as public servant, Section

1483     76-8-106;
1484          (ww) official misconduct, Sections 76-8-201 and 76-8-202;
1485          (xx) obstruction of justice, Section 76-8-306;
1486          (yy) acceptance of bribe or bribery to prevent criminal prosecution, Section 76-8-308;
1487          (zz) false or inconsistent material statements, Section 76-8-502;
1488          (aaa) false or inconsistent statements, Section 76-8-503;
1489          (bbb) written false statements, Section 76-8-504;
1490          (ccc) tampering with a witness or soliciting or receiving a bribe, Section 76-8-508;
1491          (ddd) retaliation against a witness, victim, or informant, Section 76-8-508.3;
1492          (eee) extortion or bribery to dismiss criminal proceeding, Section 76-8-509;
1493          (fff) tampering with evidence, Section 76-8-510.5;
1494          (ggg) falsification or alteration of government record, Section 76-8-511, if the record is
1495     a record described in Title 20A, Election Code, Title 36, Chapter 11, Lobbyist Disclosure and
1496     Regulation Act, or Title 36, Chapter 11a, Local Government and Board of Education Lobbyist
1497     Disclosure and Regulation Act;
1498          (hhh) public assistance fraud in violation of Section 76-8-1203, 76-8-1204, or
1499     76-8-1205;
1500          (iii) unemployment insurance fraud, Section 76-8-1301;
1501          (jjj) intentionally or knowingly causing one animal to fight with another, Subsection
1502     76-9-301(2)(d) or (e), or Section 76-9-301.1;
1503          (kkk) possession, use, or removal of explosives, chemical, or incendiary devices or
1504     parts, Section 76-10-306;
1505          (lll) delivery to common carrier, mailing, or placement on premises of an incendiary
1506     device, Section 76-10-307;
1507          (mmm) possession of a deadly weapon with intent to assault, Section 76-10-507;
1508          (nnn) unlawful marking of pistol or revolver, Section 76-10-521;
1509          (ooo) alteration of number or mark on pistol or revolver, Section 76-10-522;
1510          (ppp) forging or counterfeiting trademarks, trade name, or trade device, Section
1511     76-10-1002;
1512          (qqq) selling goods under counterfeited trademark, trade name, or trade devices,
1513     Section 76-10-1003;

1514          (rrr) sales in containers bearing registered trademark of substituted articles, Section
1515     76-10-1004;
1516          (sss) selling or dealing with article bearing registered trademark or service mark with
1517     intent to defraud, Section 76-10-1006;
1518          (ttt) gambling, Section 76-10-1102;
1519          (uuu) gambling fraud, Section 76-10-1103;
1520          (vvv) gambling promotion, Section 76-10-1104;
1521          (www) possessing a gambling device or record, Section 76-10-1105;
1522          (xxx) confidence game, Section 76-10-1109;
1523          (yyy) distributing pornographic material, Section 76-10-1204;
1524          (zzz) inducing acceptance of pornographic material, Section 76-10-1205;
1525          (aaaa) dealing in harmful material to a minor, Section 76-10-1206;
1526          (bbbb) distribution of pornographic films, Section 76-10-1222;
1527          (cccc) indecent public displays, Section 76-10-1228;
1528          (dddd) prostitution, Section 76-10-1302;
1529          (eeee) aiding prostitution, Section 76-10-1304;
1530          (ffff) exploiting prostitution, Section 76-10-1305;
1531          (gggg) aggravated exploitation of prostitution, Section 76-10-1306;
1532          (hhhh) communications fraud, Section 76-10-1801;
1533          (iiii) any act prohibited by the criminal provisions of Part 19, Money Laundering and
1534     Currency Transaction Reporting Act;
1535          (jjjj) vehicle compartment for contraband, Section 76-10-2801;
1536          (kkkk) any act prohibited by the criminal provisions of the laws governing taxation in
1537     this state; and
1538          (llll) any act illegal under the laws of the United States and enumerated in 18 U.S.C.
1539     Sec. 1961(1)(B), (C), and (D).
1540          Section 16. Section 77-22-2.5 is amended to read:
1541          77-22-2.5. Court orders for criminal investigations for records concerning an
1542     electronic communications system or service or remote computing service -- Content --
1543     Fee for providing information.
1544          (1) As used in this section:

1545          (a) (i) "Electronic communication" means any transfer of signs, signals, writing,
1546     images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire,
1547     radio, electromagnetic, photoelectronic, or photooptical system.
1548          (ii) "Electronic communication" does not include:
1549          (A) a wire or oral communication;
1550          (B) a communication made through a tone-only paging device;
1551          (C) a communication from a tracking device; or
1552          (D) electronic funds transfer information stored by a financial institution in a
1553     communications system used for the electronic storage and transfer of funds.
1554          (b) "Electronic communications service" means a service which provides for users the
1555     ability to send or receive wire or electronic communications.
1556          (c) "Electronic communications system" means a wire, radio, electromagnetic,
1557     photooptical, or photoelectronic facilities for the transmission of wire or electronic
1558     communications, and a computer facilities or related electronic equipment for the electronic
1559     storage of the communication.
1560          (d) "Internet service provider" means the same as that term is defined in Section
1561     76-10-1230.
1562          (e) "Prosecutor" means the same as that term is defined in Section 77-22-4.5.
1563          (f) "Remote computing service" means the provision to the public of computer storage
1564     or processing services by means of an electronic communications system.
1565          (g) "Sexual offense against a minor" means:
1566          (i) sexual exploitation of a minor or attempted sexual exploitation of a minor in
1567     violation of Section 76-5b-201;
1568          (ii) aggravated sexual exploitation of a minor or attempted aggravated sexual
1569     exploitation of a minor in violation of Section 76-5b-201.1;
1570          [(ii)] (iii) a sexual offense or attempted sexual offense committed against a minor in
1571     violation of Title 76, Chapter 5, Part 4, Sexual Offenses;
1572          [(iii)] (iv) dealing in or attempting to deal in material harmful to a minor in violation of
1573     Section 76-10-1206;
1574          [(iv)] (v) enticement of a minor or attempted enticement of a minor in violation of
1575     Section 76-4-401;

1576          [(v)] (vi) human trafficking of a child in violation of Section 76-5-308.5; or
1577          [(vi)] (vii) aggravated sexual extortion of a child in violation of Section 76-5b-204.
1578          (2) When a law enforcement agency is investigating a sexual offense against a minor,
1579     an offense of stalking under Section 76-5-106.5, or an offense of child kidnapping under
1580     Section 76-5-301.1, and has reasonable suspicion that an electronic communications system or
1581     service or remote computing service has been used in the commission of a criminal offense, a
1582     law enforcement agent shall:
1583          (a) articulate specific facts showing reasonable grounds to believe that the records or
1584     other information sought, as designated in Subsections (2)(c)(i) through (v), are relevant and
1585     material to an ongoing investigation;
1586          (b) present the request to a prosecutor for review and authorization to proceed; and
1587          (c) submit the request to a magistrate for a court order, consistent with 18 U.S.C. Sec.
1588     2703 and 18 U.S.C. Sec. 2702, to the electronic communications system or service or remote
1589     computing service provider that owns or controls the Internet protocol address, websites, email
1590     address, or service to a specific telephone number, requiring the production of the following
1591     information, if available, upon providing in the court order the Internet protocol address, email
1592     address, telephone number, or other identifier, and the dates and times the address, telephone
1593     number, or other identifier is suspected of being used in the commission of the offense:
1594          (i) names of subscribers, service customers, and users;
1595          (ii) addresses of subscribers, service customers, and users;
1596          (iii) records of session times and durations;
1597          (iv) length of service, including the start date and types of service utilized; and
1598          (v) telephone or other instrument subscriber numbers or other subscriber identifiers,
1599     including a temporarily assigned network address.
1600          (3) A court order issued under this section shall state that the electronic
1601     communications system or service or remote computing service provider shall produce a record
1602     under Subsections (2)(c)(i) through (v) that is reasonably relevant to the investigation of the
1603     suspected criminal activity or offense as described in the court order.
1604          (4) (a) An electronic communications system or service or remote computing service
1605     provider that provides information in response to a court order issued under this section may
1606     charge a fee, not to exceed the actual cost, for providing the information.

1607          (b) The law enforcement agency conducting the investigation shall pay the fee.
1608          (5) The electronic communications system or service or remote computing service
1609     provider served with or responding to the court order may not disclose the court order to the
1610     account holder identified pursuant to the court order for a period of 90 days.
1611          (6) If the electronic communications system or service or remote computing service
1612     provider served with the court order does not own or control the Internet protocol address,
1613     websites, or email address, or provide service for the telephone number that is the subject of
1614     the court order, the provider shall notify the investigating law enforcement agency that the
1615     provider does not have the information.
1616          (7) There is no cause of action against a provider or wire or electronic communication
1617     service, or the provider or service's officers, employees, agents, or other specified persons, for
1618     providing information, facilities, or assistance in accordance with the terms of the court order
1619     issued under this section or statutory authorization.
1620          (8) (a) A court order issued under this section is subject to the provisions of Title 77,
1621     Chapter 23b, Access to Electronic Communications.
1622          (b) Rights and remedies for providers and subscribers under Title 77, Chapter 23b,
1623     Access to Electronic Communications, apply to providers and subscribers subject to a court
1624     order issued under this section.
1625          (9) A prosecutorial agency shall annually on or before February 15 report to the
1626     Commission on Criminal and Juvenile Justice:
1627          (a) the number of requests for court orders authorized by the prosecutorial agency;
1628          (b) the number of orders issued by the court and the criminal offense, pursuant to
1629     Subsection (2), each order was used to investigate; and
1630          (c) if the court order led to criminal charges being filed, the type and number of
1631     offenses charged.
1632          Section 17. Section 77-36-1 is amended to read:
1633          77-36-1. Definitions.
1634          As used in this chapter:
1635          (1) "Cohabitant" means the same as that term is defined in Section 78B-7-102.
1636          (2) "Department" means the Department of Public Safety.
1637          (3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter

1638     3, Divorce.
1639          (4) "Domestic violence" or "domestic violence offense" means any criminal offense
1640     involving violence or physical harm or threat of violence or physical harm, or any attempt,
1641     conspiracy, or solicitation to commit a criminal offense involving violence or physical harm,
1642     when committed by one cohabitant against another. "Domestic violence" or "domestic
1643     violence offense" includes commission or attempt to commit, any of the following offenses by
1644     one cohabitant against another:
1645          (a) aggravated assault, as described in Section 76-5-103;
1646          (b) aggravated cruelty to an animal, as described in Subsection 76-9-301(4), with the
1647     intent to harass or threaten the other cohabitant;
1648          (c) assault, as described in Section 76-5-102;
1649          (d) criminal homicide, as described in Section 76-5-201;
1650          (e) harassment, as described in Section 76-5-106;
1651          (f) electronic communication harassment, as described in Section 76-9-201;
1652          (g) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
1653     76-5-301, 76-5-301.1, and 76-5-302;
1654          (h) mayhem, as described in Section 76-5-105;
1655          (i) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
1656     [Section 76-5b-201, Sexual exploitation of a minor -- Offenses;] sexual exploitation of a minor
1657     and aggravated sexual exploitation of a minor, as described in Sections 76-5b-201 and
1658     76-5b-201.1;
1659          (j) stalking, as described in Section 76-5-106.5;
1660          (k) unlawful detention or unlawful detention of a minor, as described in Section
1661     76-5-304;
1662          (l) violation of a protective order or ex parte protective order, as described in Section
1663     76-5-108;
1664          (m) any offense against property described in Title 76, Chapter 6, Part 1, Property
1665     Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6,
1666     Part 3, Robbery;
1667          (n) possession of a deadly weapon with criminal intent, as described in Section
1668     76-10-507;

1669          (o) discharge of a firearm from a vehicle, near a highway, or in the direction of any
1670     person, building, or vehicle, as described in Section 76-10-508;
1671          (p) disorderly conduct, as defined in Section 76-9-102, if a conviction or adjudication
1672     of disorderly conduct is the result of a plea agreement in which the perpetrator was originally
1673     charged with a domestic violence offense otherwise described in this Subsection (4), except
1674     that a conviction or adjudication of disorderly conduct as a domestic violence offense, in the
1675     manner described in this Subsection (4)(p), does not constitute a misdemeanor crime of
1676     domestic violence under 18 U.S.C. Sec. 921, and is exempt from the federal Firearms Act, 18
1677     U.S.C. Sec. 921 et seq.;
1678          (q) child abuse, as described in Section 76-5-109.1;
1679          (r) threatening use of a dangerous weapon, as described in Section 76-10-506;
1680          (s) threatening violence, as described in Section 76-5-107;
1681          (t) tampering with a witness, as described in Section 76-8-508;
1682          (u) retaliation against a witness or victim, as described in Section 76-8-508.3;
1683          (v) unlawful distribution of an intimate image, as described in Section 76-5b-203, or
1684     unlawful distribution of a counterfeit intimate image, as described in Section 76-5b-205;
1685          (w) sexual battery, as described in Section 76-9-702.1;
1686          (x) voyeurism, as described in Section 76-9-702.7;
1687          (y) damage to or interruption of a communication device, as described in Section
1688     76-6-108; or
1689          (z) an offense described in Subsection 78B-7-806(1).
1690          (5) "Jail release agreement" means the same as that term is defined in Section
1691     78B-7-801.
1692          (6) "Jail release court order" means the same as that term is defined in Section
1693     78B-7-801.
1694          (7) "Marital status" means married and living together, divorced, separated, or not
1695     married.
1696          (8) "Married and living together" means a couple whose marriage was solemnized
1697     under Section 30-1-4 or 30-1-6 and who are living in the same residence.
1698          (9) "Not married" means any living arrangement other than married and living together,
1699     divorced, or separated.

1700          (10) "Protective order" includes an order issued under Subsection 78B-7-804(3).
1701          (11) "Pretrial protective order" means a written order:
1702          (a) specifying and limiting the contact a person who has been charged with a domestic
1703     violence offense may have with an alleged victim or other specified individuals; and
1704          (b) specifying other conditions of release under [Sections] Section 78B-7-802 or
1705     78B-7-803, pending trial in the criminal case.
1706          (12) "Sentencing protective order" means a written order of the court as part of
1707     sentencing in a domestic violence case that limits the contact an individual who is convicted or
1708     adjudicated of a domestic violence offense may have with a victim or other specified
1709     individuals under Section 78B-7-804.
1710          (13) "Separated" means a couple who have had their marriage solemnized under
1711     Section 30-1-4 or 30-1-6 and who are not living in the same residence.
1712          (14) "Victim" means a cohabitant who has been subjected to domestic violence.
1713          Section 18. Section 77-41-102 is amended to read:
1714          77-41-102. Definitions.
1715          As used in this chapter:
1716          (1) "Bureau" means the Bureau of Criminal Identification of the Department of Public
1717     Safety established in section 53-10-201.
1718          (2) "Business day" means a day on which state offices are open for regular business.
1719          (3) "Certificate of eligibility" means a document issued by the Bureau of Criminal
1720     Identification showing that the offender has met the requirements of Section 77-41-112.
1721          (4) "Department" means the Department of Corrections.
1722          (5) "Division" means the Division of Juvenile Justice Services.
1723          (6) "Employed" or "carries on a vocation" includes employment that is full time or part
1724     time, whether financially compensated, volunteered, or for the purpose of government or
1725     educational benefit.
1726          (7) "Indian Country" means:
1727          (a) all land within the limits of any Indian reservation under the jurisdiction of the
1728     United States government, regardless of the issuance of any patent, and includes rights-of-way
1729     running through the reservation;
1730          (b) all dependent Indian communities within the borders of the United States whether

1731     within the original or subsequently acquired territory, and whether or not within the limits of a
1732     state; and
1733          (c) all Indian allotments, including the Indian allotments to which the Indian titles have
1734     not been extinguished, including rights-of-way running through the allotments.
1735          (8) "Jurisdiction" means any state, Indian Country, United States Territory, or any
1736     property under the jurisdiction of the United States military, Canada, the United Kingdom,
1737     Australia, or New Zealand.
1738          (9) "Kidnap offender" means any individual, other than a natural parent of the victim:
1739          (a) who has been convicted in this state of a violation of:
1740          (i) Subsection 76-5-301(1)(c) or (d), kidnapping;
1741          (ii) Section 76-5-301.1, child kidnapping;
1742          (iii) Section 76-5-302, aggravated kidnapping;
1743          (iv) Section 76-5-308, human trafficking for labor and human smuggling;
1744          (v) Section 76-5-308, human smuggling, when the individual smuggled is under 18
1745     years old;
1746          (vi) Section 76-5-308.5, human trafficking of a child for labor;
1747          (vii) Section 76-5-310, aggravated human trafficking and aggravated human
1748     smuggling, on or after May 10, 2011;
1749          (viii) Section 76-5-311, human trafficking of a vulnerable adult for labor; or
1750          (ix) attempting, soliciting, or conspiring to commit any felony offense listed in
1751     Subsections (9)(a)(i) through (iii);
1752          (b) (i) who has been convicted of any crime, or an attempt, solicitation, or conspiracy
1753     to commit a crime in another jurisdiction, including any state, federal, or military court that is
1754     substantially equivalent to the offenses listed in Subsection (9)(a); and
1755          (ii) who is:
1756          (A) a Utah resident; or
1757          (B) not a Utah resident, but who, in any 12-month period, is in this state for a total of
1758     10 or more days, regardless of whether or not the offender intends to permanently reside in this
1759     state;
1760          (c) (i) (A) who is required to register as a kidnap offender in any other jurisdiction of
1761     original conviction;

1762          (B) who is required to register as a kidnap offender by any state, federal, or military
1763     court; or
1764          (C) who would be required to register as a kidnap offender if residing in the
1765     jurisdiction of the conviction regardless of the date of the conviction or any previous
1766     registration requirements; and
1767          (ii) in any 12-month period, who is in this state for a total of 10 or more days,
1768     regardless of whether or not the offender intends to permanently reside in this state;
1769          (d) (i) (A) who is a nonresident regularly employed or working in this state; or
1770          (B) who is a student in this state; and
1771          (ii) (A) who was convicted of one or more offenses listed in Subsection (9), or any
1772     substantially equivalent offense in another jurisdiction; or
1773          (B) as a result of the conviction, who is required to register in the individual's state of
1774     residence;
1775          (e) who is found not guilty by reason of insanity in this state or in any other jurisdiction
1776     of one or more offenses listed in Subsection (9); or
1777          (f) (i) who is adjudicated under Section 80-6-701 for one or more offenses listed in
1778     Subsection (9)(a); and
1779          (ii) who has been committed to the division for secure care, as defined in Section
1780     80-1-102, for that offense and:
1781          (A) the individual remains in the division's custody until 30 days before the individual's
1782     21st birthday; or
1783          (B) if the juvenile court extended the juvenile court's jurisdiction over the individual
1784     under Section 80-6-605, the individual remains in the division's custody until 30 days before
1785     the individual's 25th birthday.
1786          (10) "Natural parent" means a minor's biological or adoptive parent, and includes the
1787     minor's noncustodial parent.
1788          (11) "Offender" means a kidnap offender as defined in Subsection (9) or a sex offender
1789     as defined in Subsection (17).
1790          (12) "Online identifier" or "Internet identifier":
1791          (a) means any electronic mail, chat, instant messenger, social networking, or similar
1792     name used for Internet communication; and

1793          (b) does not include date of birth, social security number, PIN number, or Internet
1794     passwords.
1795          (13) "Primary residence" means the location where the offender regularly resides, even
1796     if the offender intends to move to another location or return to another location at any future
1797     date.
1798          (14) "Register" means to comply with the requirements of this chapter and
1799     administrative rules of the department made under this chapter.
1800          (15) "Registration website" means the Sex and Kidnap Offender Notification and
1801     Registration website described in Section 77-41-110 and the information on the website.
1802          (16) "Secondary residence" means any real property that the offender owns or has a
1803     financial interest in, or any location where, in any 12-month period, the offender stays
1804     overnight a total of 10 or more nights when not staying at the offender's primary residence.
1805          (17) "Sex offender" means any individual:
1806          (a) convicted in this state of:
1807          (i) a felony or class A misdemeanor violation of Section 76-4-401, enticing a minor;
1808          (ii) Section 76-5b-202, sexual exploitation of a vulnerable adult, on or after May 10,
1809     2011;
1810          (iii) Section 76-5-308, human trafficking for sexual exploitation;
1811          (iv) Section 76-5-308.5, human trafficking of a child for sexual exploitation;
1812          (v) Section 76-5-310, aggravated human trafficking for sexual exploitation;
1813          (vi) Section 76-5-311, human trafficking of a vulnerable adult for sexual exploitation;
1814          (vii) Section 76-5-401, unlawful sexual activity with a minor, except as provided in
1815     Subsection 76-5-401(3)(b) or (c);
1816          (viii) Section 76-5-401.1, sexual abuse of a minor, except as provided in Subsection
1817     76-5-401.1(3);
1818          (ix) Section 76-5-401.2, unlawful sexual conduct with a 16 or 17 year old;
1819          (x) Section 76-5-402, rape;
1820          (xi) Section 76-5-402.1, rape of a child;
1821          (xii) Section 76-5-402.2, object rape;
1822          (xiii) Section 76-5-402.3, object rape of a child;
1823          (xiv) a felony violation of Section 76-5-403, forcible sodomy;

1824          (xv) Section 76-5-403.1, sodomy on a child;
1825          (xvi) Section 76-5-404, forcible sexual abuse;
1826          (xvii) Section 76-5-404.1, sexual abuse of a child or aggravated sexual abuse of a
1827     child;
1828          (xviii) Section 76-5-405, aggravated sexual assault;
1829          (xix) Section 76-5-412, custodial sexual relations, when the individual in custody is
1830     younger than 18 years old, if the offense is committed on or after May 10, 2011;
1831          (xx) Section 76-5b-201, sexual exploitation of a minor;
1832          (xxi) Section 76-5b-201.1, aggravated sexual exploitation of a minor;
1833          [(xxi)] (xxii) Section 76-5b-204, sexual extortion or aggravated sexual extortion;
1834          [(xxii)] (xxiii) Section 76-7-102, incest;
1835          [(xxiii)] (xxiv) Section 76-9-702, lewdness, if the individual has been convicted of the
1836     offense four or more times;
1837          [(xxiv)] (xxv) Section 76-9-702.1, sexual battery, if the individual has been convicted
1838     of the offense four or more times;
1839          [(xxv)] (xxvi) any combination of convictions of Section 76-9-702, lewdness, and of
1840     Section 76-9-702.1, sexual battery, that total four or more convictions;
1841          [(xxvi)] (xxvii) Section 76-9-702.5, lewdness involving a child;
1842          [(xxvii)] (xxviii) a felony or class A misdemeanor violation of Section 76-9-702.7,
1843     voyeurism;
1844          [(xxviii)] (xxix) Section 76-10-1306, aggravated exploitation of prostitution; or
1845          [(xxix)] (xxx) attempting, soliciting, or conspiring to commit any felony offense listed
1846     in this Subsection (17)(a);
1847          (b) (i) who has been convicted of any crime, or an attempt, solicitation, or conspiracy
1848     to commit a crime in another jurisdiction, including any state, federal, or military court that is
1849     substantially equivalent to the offenses listed in Subsection (17)(a); and
1850          (ii) who is:
1851          (A) a Utah resident; or
1852          (B) not a Utah resident, but who, in any 12-month period, is in this state for a total of
1853     10 or more days, regardless of whether the offender intends to permanently reside in this state;
1854          (c) (i) (A) who is required to register as a sex offender in any other jurisdiction of

1855     original conviction;
1856          (B) who is required to register as a sex offender by any state, federal, or military court;
1857     or
1858          (C) who would be required to register as a sex offender if residing in the jurisdiction of
1859     the original conviction regardless of the date of the conviction or any previous registration
1860     requirements; and
1861          (ii) who, in any 12-month period, is in the state for a total of 10 or more days,
1862     regardless of whether or not the offender intends to permanently reside in this state;
1863          (d) (i) (A) who is a nonresident regularly employed or working in this state; or
1864          (B) who is a student in this state; and
1865          (ii) (A) who was convicted of one or more offenses listed in Subsection (17)(a), or any
1866     substantially equivalent offense in any jurisdiction; or
1867          (B) who is, as a result of the conviction, required to register in the individual's
1868     jurisdiction of residence;
1869          (e) who is found not guilty by reason of insanity in this state, or in any other
1870     jurisdiction of one or more offenses listed in Subsection (17)(a); or
1871          (f) (i) who is adjudicated under Section 80-6-701 for one or more offenses listed in
1872     Subsection (17)(a); and
1873          (ii) who has been committed to the division for secure care, as defined in Section
1874     80-1-102, for that offense and:
1875          (A) the individual remains in the division's custody until 30 days before the individual's
1876     21st birthday; or
1877          (B) if the juvenile court extended the juvenile court's jurisdiction over the individual
1878     under Section 80-6-605, the individual remains in the division's custody until 30 days before
1879     the individual's 25th birthday.
1880          (18) "Traffic offense" does not include a violation of Title 41, Chapter 6a, Part 5,
1881     Driving Under the Influence and Reckless Driving.
1882          (19) "Vehicle" means any motor vehicle, aircraft, or watercraft subject to registration in
1883     any jurisdiction.
1884          Section 19. Section 77-41-106 is amended to read:
1885          77-41-106. Registerable offenses.

1886          Offenses referred to in Subsection 77-41-105(3)(c)(i) are:
1887          (1) any offense listed in Subsection 77-41-102(9) or (17) if, at the time of the
1888     conviction, the offender has previously been convicted of an offense listed in Subsection
1889     77-41-102(9) or (17) or has previously been required to register as a sex offender for an offense
1890     committed as a juvenile;
1891          (2) a conviction for any of the following offenses, including attempting, soliciting, or
1892     conspiring to commit any felony of:
1893          (a) Section 76-5-301.1, child kidnapping, except if the offender is a natural parent of
1894     the victim;
1895          (b) Section 76-5-402, rape;
1896          (c) Section 76-5-402.1, rape of a child;
1897          (d) Section 76-5-402.2, object rape;
1898          (e) Section 76-5-402.3, object rape of a child;
1899          (f) Section 76-5-403.1, sodomy on a child;
1900          (g) Subsection 76-5-404.1(4), aggravated sexual abuse of a child; or
1901          (h) Section 76-5-405, aggravated sexual assault;
1902          (3) Section 76-5-308, human trafficking for sexual exploitation;
1903          (4) Section 76-5-308.5, human trafficking of a child for sexual exploitation;
1904          (5) Section 76-5-310, aggravated human trafficking for sexual exploitation;
1905          (6) Section 76-5-311, human trafficking of a vulnerable adult for sexual exploitation;
1906          (7) Section 76-4-401, a felony violation of enticing a minor over the Internet;
1907          (8) Section 76-5-302, aggravated kidnapping, except if the offender is a natural parent
1908     of the victim;
1909          (9) Section 76-5-403, forcible sodomy;
1910          (10) Section 76-5-404.1, sexual abuse of a child;
1911          (11) Section 76-5b-201, sexual exploitation of a minor;
1912          (12) Section 76-5b-201.1, aggravated sexual exploitation of a minor;
1913          [(12)] (13) Subsection 76-5b-204(4), aggravated sexual extortion; or
1914          [(13)] (14) Section 76-10-1306, aggravated exploitation of prostitution, on or after May
1915     10, 2011.
1916          Section 20. Section 78B-6-117 is amended to read:

1917          78B-6-117. Who may adopt -- Adoption of minor.
1918          (1) A minor child may be adopted by an adult individual, in accordance with this
1919     section and this part.
1920          (2) A child may be adopted by:
1921          (a) adults who are legally married to each other in accordance with the laws of this
1922     state, including adoption by a stepparent; or
1923          (b) subject to Subsections (3) and (4), a single adult.
1924          (3) A child may not be adopted by an individual who is cohabiting in a relationship that
1925     is not a legally valid and binding marriage under the laws of this state unless the individual is a
1926     relative of the child or a recognized placement under the Indian Child Welfare Act, 25 U.S.C.
1927     Sec. 1901 et seq.
1928          (4) To provide a child who is in the custody of the division with the most beneficial
1929     family structure, when a child in the custody of the division is placed for adoption, the division
1930     or child-placing agency shall place the child with a married couple, unless:
1931          (a) there are no qualified married couples who:
1932          (i) have applied to adopt a child;
1933          (ii) are willing to adopt the child; and
1934          (iii) are an appropriate placement for the child;
1935          (b) the child is placed with a relative of the child;
1936          (c) the child is placed with an individual who has already developed a substantial
1937     relationship with the child;
1938          (d) the child is placed with an individual who:
1939          (i) is selected by a parent or former parent of the child, if the parent or former parent
1940     consented to the adoption of the child; and
1941          (ii) the parent or former parent described in Subsection (4)(d)(i):
1942          (A) knew the individual with whom the child is placed before the parent consented to
1943     the adoption; or
1944          (B) became aware of the individual with whom the child is placed through a source
1945     other than the division or the child-placing agency that assists with the adoption of the child; or
1946          (e) it is in the best interests of the child to place the child with a single adult.
1947          (5) Except as provided in Subsection (6), an adult may not adopt a child if, before

1948     adoption is finalized, the adult has been convicted of, pleaded guilty to, or pleaded no contest
1949     to a felony or attempted felony involving conduct that constitutes any of the following:
1950          (a) child abuse, as described in Section 76-5-109;
1951          (b) child abuse homicide, as described in Section 76-5-208;
1952          (c) child kidnapping, as described in Section 76-5-301.1;
1953          (d) human trafficking of a child, as described in Section 76-5-308.5;
1954          (e) sexual abuse of a minor, as described in Section 76-5-401.1;
1955          (f) rape of a child, as described in Section 76-5-402.1;
1956          (g) object rape of a child, as described in Section 76-5-402.3;
1957          (h) sodomy on a child, as described in Section 76-5-403.1;
1958          (i) sexual abuse of a child or aggravated sexual abuse of a child, as described in
1959     Section 76-5-404.1;
1960          (j) sexual exploitation of a minor, as described in Section 76-5b-201; [or]
1961          (k) aggravated sexual exploitation of a minor, as described in Section 76-5b-201.1; or
1962          [(k)] (l) an offense in another state that, if committed in this state, would constitute an
1963     offense described in this Subsection (5).
1964          (6) (a) For purpose of this Subsection (6), "disqualifying offense" means an offense
1965     listed in Subsection (5) that prevents a court from considering an individual for adoption of a
1966     child except as provided in this Subsection (6).
1967          (b) An individual described in Subsection (5) may only be considered for adoption of a
1968     child if the following criteria are met by clear and convincing evidence:
1969          (i) at least 10 years have elapsed from the day on which the individual is successfully
1970     released from prison, jail, parole, or probation related to a disqualifying offense;
1971          (ii) during the 10 years before the day on which the individual files a petition with the
1972     court seeking adoption, the individual has not been convicted, pleaded guilty, or pleaded no
1973     contest to an offense greater than an infraction or traffic violation that would likely impact the
1974     health, safety, or well-being of the child;
1975          (iii) the individual can provide evidence of successful treatment or rehabilitation
1976     directly related to the disqualifying offense;
1977          (iv) the court determines that the risk related to the disqualifying offense is unlikely to
1978     cause harm, as defined in Section 80-1-102, or potential harm to the child currently or at any

1979     time in the future when considering all of the following:
1980          (A) the child's age;
1981          (B) the child's gender;
1982          (C) the child's development;
1983          (D) the nature and seriousness of the disqualifying offense;
1984          (E) the preferences of a child 12 years old or older;
1985          (F) any available assessments, including custody evaluations, home studies,
1986     pre-placement adoptive evaluations, parenting assessments, psychological or mental health
1987     assessments, and bonding assessments; and
1988          (G) any other relevant information;
1989          (v) the individual can provide evidence of all of the following:
1990          (A) the relationship with the child is of long duration;
1991          (B) that an emotional bond exists with the child; and
1992          (C) that adoption by the individual who has committed the disqualifying offense
1993     ensures the best interests of the child are met; and
1994          (vi) the adoption is by:
1995          (A) a stepparent whose spouse is the adoptee's parent and consents to the adoption; or
1996          (B) subject to Subsection (6)(d), a relative of the child as defined in Section 80-3-102
1997     and there is not another relative without a disqualifying offense filing an adoption petition.
1998          (c) The individual with the disqualifying offense bears the burden of proof regarding
1999     why adoption with that individual is in the best interest of the child over another responsible
2000     relative or equally situated individual who does not have a disqualifying offense.
2001          (d) If there is an alternative responsible relative who does not have a disqualifying
2002     offense filing an adoption petition, the following applies:
2003          (i) preference for adoption shall be given to a relative who does not have a
2004     disqualifying offense; and
2005          (ii) before the court may grant adoption to the individual who has the disqualifying
2006     offense over another responsible, willing, and able relative:
2007          (A) an impartial custody evaluation shall be completed; and
2008          (B) a guardian ad litem shall be assigned.
2009          (7) Subsections (5) and (6) apply to a case pending on March 25, 2017, for which a

2010     final decision on adoption has not been made and to a case filed on or after March 25, 2017.
2011          Section 21. Section 80-1-102 is amended to read:
2012          80-1-102. Juvenile code definitions.
2013          As used in this title:
2014          (1) (a) "Abuse" means:
2015          (i) (A) nonaccidental harm of a child;
2016          (B) threatened harm of a child;
2017          (C) sexual exploitation;
2018          (D) sexual abuse; or
2019          (E) human trafficking of a child in violation of Section 76-5-308.5; or
2020          (ii) that a child's natural parent:
2021          (A) intentionally, knowingly, or recklessly causes the death of another parent of the
2022     child;
2023          (B) is identified by a law enforcement agency as the primary suspect in an investigation
2024     for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
2025          (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
2026     recklessly causing the death of another parent of the child.
2027          (b) "Abuse" does not include:
2028          (i) reasonable discipline or management of a child, including withholding privileges;
2029          (ii) conduct described in Section 76-2-401; or
2030          (iii) the use of reasonable and necessary physical restraint or force on a child:
2031          (A) in self-defense;
2032          (B) in defense of others;
2033          (C) to protect the child; or
2034          (D) to remove a weapon in the possession of a child for any of the reasons described in
2035     Subsections (1)(b)(iii)(A) through (C).
2036          (2) "Abused child" means a child who has been subjected to abuse.
2037          (3) (a) "Adjudication" means a finding by the court, incorporated in a decree, that the
2038     facts alleged in the petition have been proved.
2039          (b) "Adjudication" does not mean a finding of not competent to proceed in accordance
2040     with Section 80-6-402.

2041          (4) (a) "Adult" means an individual who is 18 years old or older.
2042          (b) "Adult" does not include an individual:
2043          (i) who is 18 years old or older; and
2044          (ii) who is a minor.
2045          (5) "Attorney guardian ad litem" means the same as that term is defined in Section
2046     78A-2-801.
2047          (6) "Board" means the Board of Juvenile Court Judges.
2048          (7) "Child" means an individual who is under 18 years old.
2049          (8) "Child and family plan" means a written agreement between a child's parents or
2050     guardian and the Division of Child and Family Services as described in Section 62A-4a-205.
2051          (9) "Child placement agency" means:
2052          (a) a private agency licensed to receive a child for placement or adoption under this
2053     code; or
2054          (b) a private agency that receives a child for placement or adoption in another state,
2055     which is licensed or approved where such license or approval is required by law.
2056          (10) "Clandestine laboratory operation" means the same as that term is defined in
2057     Section 58-37d-3.
2058          (11) "Commit" or "committed" means, unless specified otherwise:
2059          (a) with respect to a child, to transfer legal custody; and
2060          (b) with respect to a minor who is at least 18 years old, to transfer custody.
2061          (12) "Community-based program" means a nonsecure residential or nonresidential
2062     program, designated to supervise and rehabilitate juvenile offenders, that prioritizes the least
2063     restrictive setting, consistent with public safety, and operated by or under contract with the
2064     Division of Juvenile Justice Services.
2065          (13) "Community placement" means placement of a minor in a community-based
2066     program described in Section 80-5-402.
2067          (14) "Correctional facility" means:
2068          (a) a county jail; or
2069          (b) a secure correctional facility as defined in Section 64-13-1.
2070          (15) "Criminogenic risk factors" means evidence-based factors that are associated with
2071     a minor's likelihood of reoffending.

2072          (16) "Department" means the Department of Human Services created in Section
2073     62A-1-102.
2074          (17) "Dependent child" or "dependency" means a child who is without proper care
2075     through no fault of the child's parent, guardian, or custodian.
2076          (18) "Deprivation of custody" means transfer of legal custody by the juvenile court
2077     from a parent or a previous custodian to another person, agency, or institution.
2078          (19) "Detention" means home detention or secure detention.
2079          (20) "Detention risk assessment tool" means an evidence-based tool established under
2080     Section 80-5-203 that:
2081          (a) assesses a minor's risk of failing to appear in court or reoffending before
2082     adjudication; and
2083          (b) is designed to assist in making a determination of whether a minor shall be held in
2084     detention.
2085          (21) "Developmental immaturity" means incomplete development in one or more
2086     domains that manifests as a functional limitation in the minor's present ability to:
2087          (a) consult with counsel with a reasonable degree of rational understanding; and
2088          (b) have a rational as well as factual understanding of the proceedings.
2089          (22) "Disposition" means an order by a juvenile court, after the adjudication of a
2090     minor, under Section 80-3-405 or 80-4-305 or Chapter 6, Part 7, Adjudication and Disposition.
2091          (23) "Educational neglect" means that, after receiving a notice of compulsory education
2092     violation under Section 53G-6-202, the parent or guardian fails to make a good faith effort to
2093     ensure that the child receives an appropriate education.
2094          (24) "Educational series" means an evidence-based instructional series:
2095          (a) obtained at a substance abuse program that is approved by the Division of
2096     Substance Abuse and Mental Health in accordance with Section 62A-15-105; and
2097          (b) designed to prevent substance use or the onset of a mental health disorder.
2098          (25) "Emancipated" means the same as that term is defined in Section 80-7-102.
2099          (26) "Evidence-based" means a program or practice that has had multiple randomized
2100     control studies or a meta-analysis demonstrating that the program or practice is effective for a
2101     specific population or has been rated as effective by a standardized program evaluation tool.
2102          (27) "Forensic evaluator" means the same as that term is defined in Section 77-15-2.

2103          (28) "Formal probation" means a minor is:
2104          (a) supervised in the community by, and reports to, a juvenile probation officer or an
2105     agency designated by the juvenile court; and
2106          (b) subject to return to the juvenile court in accordance with Section 80-6-607.
2107          (29) "Group rehabilitation therapy" means psychological and social counseling of one
2108     or more individuals in the group, depending upon the recommendation of the therapist.
2109          (30) "Guardian" means a person appointed by a court to make decisions regarding a
2110     minor, including the authority to consent to:
2111          (a) marriage;
2112          (b) enlistment in the armed forces;
2113          (c) major medical, surgical, or psychiatric treatment; or
2114          (d) legal custody, if legal custody is not vested in another individual, agency, or
2115     institution.
2116          (31) "Guardian ad litem" means the same as that term is defined in Section 78A-2-801.
2117          (32) "Harm" means:
2118          (a) physical or developmental injury or damage;
2119          (b) emotional damage that results in a serious impairment in the child's growth,
2120     development, behavior, or psychological functioning;
2121          (c) sexual abuse; or
2122          (d) sexual exploitation.
2123          (33) "Home detention" means placement of a minor:
2124          (a) if prior to a disposition, in the minor's home, or in a surrogate home with the
2125     consent of the minor's parent, guardian, or custodian, under terms and conditions established by
2126     the Division of Juvenile Justice Services or the juvenile court; or
2127          (b) if after a disposition, and in accordance with Section 78A-6-353 or 80-6-704, in the
2128     minor's home, or in a surrogate home with the consent of the minor's parent, guardian, or
2129     custodian, under terms and conditions established by the Division of Juvenile Justice Services
2130     or the juvenile court.
2131          (34) (a) "Incest" means engaging in sexual intercourse with an individual whom the
2132     perpetrator knows to be the perpetrator's ancestor, descendant, brother, sister, uncle, aunt,
2133     nephew, niece, or first cousin.

2134          (b) "Incest" includes:
2135          (i) blood relationships of the whole or half blood, without regard to legitimacy;
2136          (ii) relationships of parent and child by adoption; and
2137          (iii) relationships of stepparent and stepchild while the marriage creating the
2138     relationship of a stepparent and stepchild exists.
2139          (35) "Indian child" means the same as that term is defined in 25 U.S.C. Sec. 1903.
2140          (36) "Indian tribe" means the same as that term is defined in 25 U.S.C. Sec. 1903.
2141          (37) "Indigent defense service provider" means the same as that term is defined in
2142     Section 78B-22-102.
2143          (38) "Indigent defense services" means the same as that term is defined in Section
2144     78B-22-102.
2145          (39) "Indigent individual" means the same as that term is defined in Section
2146     78B-22-102.
2147          (40) (a) "Intake probation" means a minor is:
2148          (i) monitored by a juvenile probation officer; and
2149          (ii) subject to return to the juvenile court in accordance with Section 80-6-607.
2150          (b) "Intake probation" does not include formal probation.
2151          (41) "Intellectual disability" means a significant subaverage general intellectual
2152     functioning existing concurrently with deficits in adaptive behavior that constitutes a
2153     substantial limitation to the individual's ability to function in society.
2154          (42) "Juvenile offender" means:
2155          (a) a serious youth offender; or
2156          (b) a youth offender.
2157          (43) "Juvenile probation officer" means a probation officer appointed under Section
2158     78A-6-205.
2159          (44) "Juvenile receiving center" means a nonsecure, nonresidential program established
2160     by the Division of Juvenile Justice Services, or under contract with the Division of Juvenile
2161     Justice Services, that is responsible for minors taken into temporary custody under Section
2162     80-6-201.
2163          (45) "Legal custody" means a relationship embodying:
2164          (a) the right to physical custody of the minor;

2165          (b) the right and duty to protect, train, and discipline the minor;
2166          (c) the duty to provide the minor with food, clothing, shelter, education, and ordinary
2167     medical care;
2168          (d) the right to determine where and with whom the minor shall live; and
2169          (e) the right, in an emergency, to authorize surgery or other extraordinary care.
2170          (46) "Mental illness" means:
2171          (a) a psychiatric disorder that substantially impairs an individual's mental, emotional,
2172     behavioral, or related functioning; or
2173          (b) the same as that term is defined in:
2174          (i) the current edition of the Diagnostic and Statistical Manual of Mental Disorders
2175     published by the American Psychiatric Association; or
2176          (ii) the current edition of the International Statistical Classification of Diseases and
2177     Related Health Problems.
2178          (47) "Minor" means, except as provided in Sections 80-6-501, 80-6-901, and 80-7-102:
2179          (a) a child; or
2180          (b) an individual:
2181          (i) (A) who is at least 18 years old and younger than 21 years old; and
2182          (B) for whom the Division of Child and Family Services has been specifically ordered
2183     by the juvenile court to provide services because the individual was an abused, neglected, or
2184     dependent child or because the individual was adjudicated for an offense; or
2185          (ii) (A) who is at least 18 years old and younger than 25 years old; and
2186          (B) whose case is under the continuing jurisdiction of the juvenile court under Chapter
2187     6, Juvenile Justice.
2188          (48) "Mobile crisis outreach team" means the same as that term is defined in Section
2189     62A-15-102.
2190          (49) "Molestation" means that an individual, with the intent to arouse or gratify the
2191     sexual desire of any individual, touches the anus, buttocks, pubic area, or genitalia of any child,
2192     or the breast of a female child, or takes indecent liberties with a child as defined in Section
2193     76-5-416.
2194          (50) (a) "Natural parent" means a minor's biological or adoptive parent.
2195          (b) "Natural parent" includes the minor's noncustodial parent.

2196          (51) (a) "Neglect" means action or inaction causing:
2197          (i) abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe
2198     Relinquishment of a Newborn Child;
2199          (ii) lack of proper parental care of a child by reason of the fault or habits of the parent,
2200     guardian, or custodian;
2201          (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
2202     subsistence or medical care, or any other care necessary for the child's health, safety, morals, or
2203     well-being;
2204          (iv) a child to be at risk of being neglected or abused because another child in the same
2205     home is neglected or abused;
2206          (v) abandonment of a child through an unregulated custody transfer; or
2207          (vi) educational neglect.
2208          (b) "Neglect" does not include:
2209          (i) a parent or guardian legitimately practicing religious beliefs and who, for that
2210     reason, does not provide specified medical treatment for a child;
2211          (ii) a health care decision made for a child by the child's parent or guardian, unless the
2212     state or other party to a proceeding shows, by clear and convincing evidence, that the health
2213     care decision is not reasonable and informed;
2214          (iii) a parent or guardian exercising the right described in Section 80-3-304; or
2215          (iv) permitting a child, whose basic needs are met and who is of sufficient age and
2216     maturity to avoid harm or unreasonable risk of harm, to engage in independent activities,
2217     including:
2218          (A) traveling to and from school, including by walking, running, or bicycling;
2219          (B) traveling to and from nearby commercial or recreational facilities;
2220          (C) engaging in outdoor play;
2221          (D) remaining in a vehicle unattended, except under the conditions described in
2222     Subsection 76-10-2202(2);
2223          (E) remaining at home unattended; or
2224          (F) engaging in a similar independent activity.
2225          (52) "Neglected child" means a child who has been subjected to neglect.
2226          (53) "Nonjudicial adjustment" means closure of the case by the assigned juvenile

2227     probation officer, without an adjudication of the minor's case under Section 80-6-701, upon the
2228     consent in writing of:
2229          (a) the assigned juvenile probation officer; and
2230          (b) (i) the minor; or
2231          (ii) the minor and the minor's parent, legal guardian, or custodian.
2232          (54) "Not competent to proceed" means that a minor, due to a mental illness,
2233     intellectual disability or related condition, or developmental immaturity, lacks the ability to:
2234          (a) understand the nature of the proceedings against the minor or of the potential
2235     disposition for the offense charged; or
2236          (b) consult with counsel and participate in the proceedings against the minor with a
2237     reasonable degree of rational understanding.
2238          (55) "Parole" means a conditional release of a juvenile offender from residency in
2239     secure care to live outside of secure care under the supervision of the Division of Juvenile
2240     Justice Services, or another person designated by the Division of Juvenile Justice Services.
2241          (56) "Physical abuse" means abuse that results in physical injury or damage to a child.
2242          (57) (a) "Probation" means a legal status created by court order, following an
2243     adjudication under Section 80-6-701, whereby the minor is permitted to remain in the minor's
2244     home under prescribed conditions.
2245          (b) "Probation" includes intake probation or formal probation.
2246          (58) "Prosecuting attorney" means:
2247          (a) the attorney general and any assistant attorney general;
2248          (b) any district attorney or deputy district attorney;
2249          (c) any county attorney or assistant county attorney; and
2250          (d) any other attorney authorized to commence an action on behalf of the state.
2251          (59) "Protective custody" means the shelter of a child by the Division of Child and
2252     Family Services from the time the child is removed from the home until the earlier of:
2253          (a) the day on which the shelter hearing is held under Section 80-3-301; or
2254          (b) the day on which the child is returned home.
2255          (60) "Protective supervision" means a legal status created by court order, following an
2256     adjudication on the ground of abuse, neglect, or dependency, whereby:
2257          (a) the minor is permitted to remain in the minor's home; and

2258          (b) supervision and assistance to correct the abuse, neglect, or dependency is provided
2259     by an agency designated by the juvenile court.
2260          (61) (a) "Related condition" means a condition that:
2261          (i) is found to be closely related to intellectual disability;
2262          (ii) results in impairment of general intellectual functioning or adaptive behavior
2263     similar to that of an intellectually disabled individual;
2264          (iii) is likely to continue indefinitely; and
2265          (iv) constitutes a substantial limitation to the individual's ability to function in society.
2266          (b) "Related condition" does not include mental illness, psychiatric impairment, or
2267     serious emotional or behavioral disturbance.
2268          (62) (a) "Residual parental rights and duties" means the rights and duties remaining
2269     with a parent after legal custody or guardianship, or both, have been vested in another person or
2270     agency, including:
2271          (i) the responsibility for support;
2272          (ii) the right to consent to adoption;
2273          (iii) the right to determine the child's religious affiliation; and
2274          (iv) the right to reasonable parent-time unless restricted by the court.
2275          (b) If no guardian has been appointed, "residual parental rights and duties" includes the
2276     right to consent to:
2277          (i) marriage;
2278          (ii) enlistment; and
2279          (iii) major medical, surgical, or psychiatric treatment.
2280          (63) "Runaway" means a child, other than an emancipated child, who willfully leaves
2281     the home of the child's parent or guardian, or the lawfully prescribed residence of the child,
2282     without permission.
2283          (64) "Secure care" means placement of a minor, who is committed to the Division of
2284     Juvenile Justice Services for rehabilitation, in a facility operated by, or under contract with, the
2285     Division of Juvenile Justice Services, that provides 24-hour supervision and confinement of the
2286     minor.
2287          (65) "Secure care facility" means a facility, established in accordance with Section
2288     80-5-503, for juvenile offenders in secure care.

2289          (66) "Secure detention" means temporary care of a minor who requires secure custody
2290     in a physically restricting facility operated by, or under contract with, the Division of Juvenile
2291     Justice Services:
2292          (a) before disposition of an offense that is alleged to have been committed by the
2293     minor; or
2294          (b) under Section 80-6-704.
2295          (67) "Serious youth offender" means an individual who:
2296          (a) is at least 14 years old, but under 25 years old;
2297          (b) committed a felony listed in Subsection 80-6-503(1) and the continuing jurisdiction
2298     of the juvenile court was extended over the individual's case until the individual was 25 years
2299     old in accordance with Section 80-6-605; and
2300          (c) is committed by the juvenile court to the Division of Juvenile Justice Services for
2301     secure care under Sections 80-6-703 and 80-6-705.
2302          (68) "Severe abuse" means abuse that causes or threatens to cause serious harm to a
2303     child.
2304          (69) "Severe neglect" means neglect that causes or threatens to cause serious harm to a
2305     child.
2306          (70) "Sexual abuse" means:
2307          (a) an act or attempted act of sexual intercourse, sodomy, incest, or molestation by an
2308     adult directed towards a child;
2309          (b) an act or attempted act of sexual intercourse, sodomy, incest, or molestation
2310     committed by a child towards another child if:
2311          (i) there is an indication of force or coercion;
2312          (ii) the children are related, as described in Subsection (34), including siblings by
2313     marriage while the marriage exists or by adoption;
2314          (iii) there have been repeated incidents of sexual contact between the two children,
2315     unless the children are 14 years old or older; or
2316          (iv) there is a disparity in chronological age of four or more years between the two
2317     children;
2318          (c) engaging in any conduct with a child that would constitute an offense under any of
2319     the following, regardless of whether the individual who engages in the conduct is actually

2320     charged with, or convicted of, the offense:
2321          (i) Title 76, Chapter 5, Part 4, Sexual Offenses, except for Section 76-5-401, if the
2322     alleged perpetrator of an offense described in Section 76-5-401 is a minor;
2323          (ii) child bigamy, Section 76-7-101.5;
2324          (iii) incest, Section 76-7-102;
2325          (iv) lewdness, Section 76-9-702;
2326          (v) sexual battery, Section 76-9-702.1;
2327          (vi) lewdness involving a child, Section 76-9-702.5; or
2328          (vii) voyeurism, Section 76-9-702.7; or
2329          (d) subjecting a child to participate in or threatening to subject a child to participate in
2330     a sexual relationship, regardless of whether that sexual relationship is part of a legal or cultural
2331     marriage.
2332          (71) "Sexual exploitation" means knowingly:
2333          (a) employing, using, persuading, inducing, enticing, or coercing any child to:
2334          (i) pose in the nude for the purpose of sexual arousal of any individual; or
2335          (ii) engage in any sexual or simulated sexual conduct for the purpose of photographing,
2336     filming, recording, or displaying in any way the sexual or simulated sexual conduct;
2337          (b) displaying, distributing, possessing for the purpose of distribution, or selling
2338     material depicting a child:
2339          (i) in the nude, for the purpose of sexual arousal of any individual; or
2340          (ii) engaging in sexual or simulated sexual conduct; or
2341          (c) engaging in any conduct that would constitute an offense under Section 76-5b-201,
2342     sexual exploitation of a minor, or Section 76-5b-201.1, aggravated sexual exploitation of a
2343     minor, regardless of whether the individual who engages in the conduct is actually charged
2344     with, or convicted of, the offense.
2345          (72) "Shelter" means the temporary care of a child in a physically unrestricted facility
2346     pending a disposition or transfer to another jurisdiction.
2347          (73) "Shelter facility" means the same as that term is defined in Section 62A-4a-101.
2348          (74) "Single criminal episode" means the same as that term is defined in Section
2349     76-1-401.
2350          (75) "Status offense" means an offense that would not be an offense but for the age of

2351     the offender.
2352          (76) "Substance abuse" means the misuse or excessive use of alcohol or other drugs or
2353     substances.
2354          (77) "Substantiated" means the same as that term is defined in Section 62A-4a-101.
2355          (78) "Supported" means the same as that term is defined in Section 62A-4a-101.
2356          (79) "Termination of parental rights" means the permanent elimination of all parental
2357     rights and duties, including residual parental rights and duties, by court order.
2358          (80) "Therapist" means:
2359          (a) an individual employed by a state division or agency for the purpose of conducting
2360     psychological treatment and counseling of a minor in the division's or agency's custody; or
2361          (b) any other individual licensed or approved by the state for the purpose of conducting
2362     psychological treatment and counseling.
2363          (81) "Threatened harm" means actions, inactions, or credible verbal threats, indicating
2364     that the child is at an unreasonable risk of harm or neglect.
2365          (82) "Ungovernable" means a child in conflict with a parent or guardian, and the
2366     conflict:
2367          (a) results in behavior that is beyond the control or ability of the child, or the parent or
2368     guardian, to manage effectively;
2369          (b) poses a threat to the safety or well-being of the child, the child's family, or others;
2370     or
2371          (c) results in the situations described in Subsections (82)(a) and (b).
2372          (83) "Unregulated custody transfer" means the placement of a child:
2373          (a) with an individual who is not the child's parent, step-parent, grandparent, adult
2374     sibling, adult uncle or aunt, or legal guardian, or a friend of the family who is an adult and with
2375     whom the child is familiar, or a member of the child's federally recognized tribe;
2376          (b) with the intent of severing the child's existing parent-child or guardian-child
2377     relationship; and
2378          (c) without taking:
2379          (i) reasonable steps to ensure the safety of the child and permanency of the placement;
2380     and
2381          (ii) the necessary steps to transfer the legal rights and responsibilities of parenthood or

2382     guardianship to the individual taking custody of the child.
2383          (84) "Unsupported" means the same as that term is defined in Section 62A-4a-101.
2384          (85) "Unsubstantiated" means the same as that term is defined in Section 62A-4a-101.
2385          (86) "Validated risk and needs assessment" means an evidence-based tool that assesses
2386     a minor's risk of reoffending and a minor's criminogenic needs.
2387          (87) "Without merit" means the same as that term is defined in Section 62A-4a-101.
2388          (88) "Youth offender" means an individual who is:
2389          (a) at least 12 years old, but under 21 years old; and
2390          (b) committed by the juvenile court to the Division of Juvenile Justice Services for
2391     secure care under Sections 80-6-703 and 80-6-705.
2392          Section 22. Coordinating S.B. 167 with S.B. 123 -- Substantive and technical
2393     amendments.
2394          If this S.B. 167 and S.B. 123, Criminal Code Recodification, both pass and become
2395     law, it is the intent of the Legislature that the Office of Legislative Research and General
2396     Counsel prepare the Utah Code database for publication by amending:
2397          (1) Subsection 76-5b-201.1(1) to read:
2398          "(1) As used in this section:
2399          (a) "Physical abuse" or "physically abused" means the same as the term "physical
2400     abuse" is defined in Section 80-1-102.
2401          (b) The terms defined in Section 76-1-101.5 apply to this section."; and
2402          (2) Subsection 76-5b-205(3)(c) to read:
2403          "(c) This section does not apply to an actor who engages in conduct that constitutes a
2404     violation of this section to the extent that the actor is chargeable, for the same conduct, under
2405     Section 76-5b-201, sexual exploitation of a minor, or Section 76-5b-201.1, aggravated sexual
2406     exploitation of a minor.".