Senator Stephanie Pitcher proposes the following substitute bill:


1     
SEX OFFENSE AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Andrew Stoddard

5     
Senate Sponsor: Stephanie Pitcher

6     Cosponsor:
Ryan D. Wilcox

7     

8     LONG TITLE
9     General Description:
10          This bill addresses sex offense management and treatment.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     creates the Sex Offense Management Board;
15          ▸     describes the duties of the Sex Offense Management Board;
16          ▸     clarifies the process the Department of Corrections follows to establish standards
17     for sex offender treatment;
18          ▸     includes a sunset date; and
19          ▸     makes technical changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          63I-1-263, as last amended by Laws of Utah 2022, Chapters 23, 34, 68, 153, 218, 236,
27     249, 274, 296, 313, 361, 362, 417, 419, and 472
28          64-13-25, as last amended by Laws of Utah 2015, Chapter 412
29          77-18-103, as last amended by Laws of Utah 2022, Chapter 115
30     ENACTS:
31          63M-7-801, Utah Code Annotated 1953
32          63M-7-802, Utah Code Annotated 1953
33          63M-7-803, Utah Code Annotated 1953
34     

35     Be it enacted by the Legislature of the state of Utah:
36          Section 1. Section 63I-1-263 is amended to read:
37          63I-1-263. Repeal dates: Titles 63A to 63N.
38          (1) Subsection 63A-5b-405(5), relating to prioritizing and allocating capital
39     improvement funding, is repealed July 1, 2024.
40          (2) Section 63A-5b-1003, State Facility Energy Efficiency Fund, is repealed July 1,
41     2023.
42          (3) Sections 63A-9-301 and 63A-9-302, related to the Motor Vehicle Review
43     Committee, are repealed July 1, 2023.
44          (4) In relation to the Utah Transparency Advisory Board, on January 1, 2025:
45          (a) Section 63A-18-102 is repealed;
46          (b) Section 63A-18-201 is repealed; and
47          (c) Section 63A-18-202 is repealed.
48          (5) Title 63C, Chapter 4a, Constitutional and Federalism Defense Act, is repealed July
49     1, 2028.
50          (6) Title 63C, Chapter 6, Utah Seismic Safety Commission, is repealed January 1,
51     2025.
52          (7) Title 63C, Chapter 12, Snake Valley Aquifer Advisory Council, is repealed July 1,
53     2024.
54          (8) Title 63C, Chapter 17, Point of the Mountain Development Commission Act, is
55     repealed July 1, 2023.
56          (9) Title 63C, Chapter 18, Behavioral Health Crisis Response Commission, is repealed
57     July 1, 2023.
58          (10) Title 63C, Chapter 23, Education and Mental Health Coordinating Council, is
59     repealed July 1, 2026.
60          (11) Title 63C, Chapter 27, Cybersecurity Commission, is repealed July 1, 2032.
61          (12) Title 63C, Chapter 28, Ethnic Studies Commission, is repealed July 1, 2026.
62          (13) Section 63G-6a-805, which creates the Purchasing from Persons with Disabilities
63     Advisory Board, is repealed July 1, 2026.
64          (14) Title 63G, Chapter 21, Agreements to Provide State Services, is repealed July 1,
65     2028.
66          (15) Title 63H, Chapter 4, Heber Valley Historic Railroad Authority, is repealed July 1,
67     2024.
68          (16) Title 63H, Chapter 8, Utah Housing Corporation Act, is repealed July 1, 2026.
69          (17) Subsection 63J-1-602.1(17), relating to the Nurse Home Visiting Restricted
70     Account, is repealed July 1, 2026.
71          (18) Subsection 63J-1-602.2(6), referring to dedicated credits to the Utah Marriage
72     Commission, is repealed July 1, 2023.
73          (19) Subsection 63J-1-602.2(7), referring to the Trip Reduction Program, is repealed
74     July 1, 2022.
75          (20) Subsection 63J-1-602.2(26), related to the Utah Seismic Safety Commission, is
76     repealed January 1, 2025.
77          (21) Title 63L, Chapter 11, Part 4, Resource Development Coordinating Committee, is
78     repealed July 1, 2027.
79          (22) In relation to the Utah Substance Use and Mental Health Advisory Council, on
80     January 1, 2033:
81          (a) Sections 63M-7-301, 63M-7-302, 63M-7-303, 63M-7-304, and 63M-7-306 are
82     repealed;
83          (b) Section 63M-7-305, the language that states "council" is replaced with
84     "commission";
85          (c) Subsection 63M-7-305(1)(a) is repealed and replaced with:
86          "(1) "Commission" means the Commission on Criminal and Juvenile Justice."; and
87          (d) Subsection 63M-7-305(2) is repealed and replaced with:
88          "(2) The commission shall:
89          (a) provide ongoing oversight of the implementation, functions, and evaluation of the
90     Drug-Related Offenses Reform Act; and
91          (b) coordinate the implementation of Section 77-18-104 and related provisions in
92     Subsections 77-18-103(2)(c) and (d).".
93          (23) Title 63M, Chapter 7, Part 8, Sex Offense Management Board, is repealed July 1,
94     2026.
95          [(23)] (24) The Crime Victim Reparations and Assistance Board, created in Section
96     63M-7-504, is repealed July 1, 2027.
97          [(24)] (25) Title 63M, Chapter 11, Utah Commission on Aging, is repealed July 1,
98     2026.
99          [(25)] (26) Title 63N, Chapter 1b, Part 4, Women in the Economy Subcommittee, is
100     repealed January 1, 2025.
101          [(26)] (27) Title 63N, Chapter 2, Part 2, Enterprise Zone Act, is repealed July 1, 2028.
102          [(27)] (28) Section 63N-2-512, related to the Hotel Impact Mitigation Fund, is repealed
103     July 1, 2028.
104          [(28)] (29) Title 63N, Chapter 3, Part 9, Strategic Innovation Grant Pilot Program, is
105     repealed July 1, 2027.
106          [(29)] (30) Title 63N, Chapter 3, Part 11, Manufacturing Modernization Grant
107     Program, is repealed July 1, 2025.
108          [(30)] (31) In relation to the Rural Employment Expansion Program, on July 1, 2023:
109          (a) Title 63N, Chapter 4, Part 4, Rural Employment Expansion Program, is repealed;
110     and
111          (b) Subsection 63N-4-805(5)(b), referring to the Rural Employment Expansion
112     Program, is repealed.
113          [(31)] (32) In relation to the Board of Tourism Development, on July 1, 2025:
114          (a) Subsection 63N-2-511(1)(b), which defines "tourism board," is repealed;
115          (b) Subsections 63N-2-511(3)(a) and (5), the language that states "tourism board" is
116     repealed and replaced with "Utah Office of Tourism";
117          (c) Subsection 63N-7-101(1), which defines "board," is repealed;
118          (d) Subsection 63N-7-102(3)(c), which requires the Utah Office of Tourism to receive
119     approval from the Board of Tourism Development, is repealed; and
120          (e) Title 63N, Chapter 7, Part 2, Board of Tourism Development, is repealed.
121          [(32)] (33) Subsection 63N-8-103(3)(c), which allows the Governor's Office of
122     Economic Opportunity to issue an amount of tax credit certificates only for rural productions,
123     is repealed on July 1, 2024.
124          Section 2. Section 63M-7-801 is enacted to read:
125     
Part 8. Sex Offense Management Board

126          63M-7-801. Definitions.
127          As used in this part:
128          (1) "Board" means the Sex Offense Management Board created in Section 63M-7-802.
129          (2) "Commission" means the State Commission on Criminal and Juvenile Justice
130     created in Section 63M-7-201.
131          (3) "Registry" means the registry established in Title 77, Chapter 41, Sex and Kidnap
132     Offender Registry.
133          Section 3. Section 63M-7-802 is enacted to read:
134          63M-7-802. Sex Offense Management Board - Creation - Members appointment -
135     Qualifications - Terms.
136          (1) There is created within the commission the Sex Offense Management Board
137     consisting of the following members:
138          (a) the executive director of the Department of Corrections, or the executive director's
139     designee;
140          (b) the commissioner of the Department of Public Safety, or the commissioner's
141     designee;
142          (c) the attorney general, or the attorney general's designee;
143          (d) an officer with the adult probation and parole section of the Department of
144     Corrections with experience supervising adults convicted of sex offenses, appointed by the
145     executive director of the Department of Corrections;
146          (e) the executive director of the Department of Health and Human Services, or the
147     executive director's designee;
148          (f) an individual who represents the Administrative Office of the Courts appointed by
149     the state court administrator;
150          (g) the director of the Utah Office for Victims of Crime, or the director's designee;
151          (h) the director of the Division of Juvenile Justice Services, or the director's designee;
152          (i) the chair of the Board of Pardons and Parole, or the chair's designee; and
153          (j) nine individuals appointed by the executive director of the commission, including:
154          (i) the following two individuals licensed under Title 58, Chapter 60, Mental Health
155     Professional Practices Act:
156          (A) an individual with experience in the treatment of adults convicted of sex offenses
157     in the community;
158          (B) an individual with experience in the treatment of juveniles adjudicated of sex
159     offenses in the community;
160          (ii) an individual who represents an association of criminal defense attorneys;
161          (iii) an individual who is a criminal defense attorney experienced in indigent criminal
162     defense;
163          (iv) an individual who represents an association of prosecuting attorneys;
164          (v) an individual who represents law enforcement;
165          (vi) an individual who represents an association of criminal justice victim advocates;
166          (vii) an individual who is a clinical polygraph examiner experienced in providing
167     polygraph examinations to individuals convicted of sex offenses; and
168          (viii) an individual who has been previously convicted of a sex offense and has
169     successfully completed treatment and supervision for the offense.
170          (2) (a) A member described in Subsection (1)(j) shall serve a four-year term.
171          (b) If a vacancy occurs among a member described in Subsection (1)(j), the executive
172     director of the commission may appoint a new individual to fill the remainder of the term.
173          (c) When a term of a member described in Subsection (1)(j) expires, the executive
174     director of the commission shall appoint a new member or reappoint the member whose term
175     has expired to a new four-year term.
176          (3) The members of the board shall vote on a chair and co-chair of the board from
177     among the members described in Subsection (1) to serve a two-year term.
178          (4) A majority of the board constitutes a quorum.
179          (5) A board member may not receive compensation or benefits for the member's
180     service on the board, but may receive per diem and reimbursement for travel expenses incurred
181     as a board member at rates established by the Division of Finance under:
182          (a) Sections 63A-3-106 and 63A-3-107; and
183          (b) rules made by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
184          (6) The commission shall provide staff support to the board.
185          (7) The board shall meet at least six times per year on dates the board sets.
186          Section 4. Section 63M-7-803 is enacted to read:
187          63M-7-803. Board duties.
188          The board shall:
189          (1) review research regarding treatment, risk assessment, and supervision practices for
190     individuals on the registry or individuals ordered to complete sex offense treatment;
191          (2) advise and make recommendations to other councils, boards, and offices within the
192     commission regarding evidence-based:
193          (a) sentencing and treatment practices for individuals on the registry or individuals
194     ordered to complete sex offense treatment to reduce recidivism and promote public safety;
195          (b) policies to promote public safety and protect victims of sex offenses; and
196          (c) practices related to the registry that promote public safety, account for risk, and
197     protect the rights of individuals on the registry or individuals ordered to complete sex offense
198     treatment; and
199          (3) advise and make recommendations to the Department of Corrections and the
200     Department of Health and Human Services regarding:
201          (a) evidence-based standards for supervision of individuals on the registry or
202     individuals ordered to complete sex offense treatment;
203          (b) evidence-based standards for training, certification, and evaluation of community
204     treatment providers, polygraph examiners, evaluators, and other professionals who provide
205     treatment and related services to individuals on the registry or individuals ordered to complete
206     sex offense treatment; and
207          (c) implementation of the treatment standards and other duties described in Section
208     64-13-25 related to sex offenses.
209          Section 5. Section 64-13-25 is amended to read:
210          64-13-25. Standards for programs -- Audits.
211          (1) (a) To promote accountability and to ensure safe and professional operation of
212     correctional programs, the department shall establish minimum standards for the organization
213     and operation of [its] the department's programs, including collaborating with the Department
214     of Health and Human Services to establish minimum standards for programs providing
215     assistance for individuals involved in the criminal justice system.
216          [(a)] (b) (i) The department shall promulgate the standards [shall be promulgated]
217     according to state rulemaking provisions.
218          (ii) Those standards that apply to offenders are exempt from the provisions of Title
219     63G, Chapter 3, Utah Administrative Rulemaking Act.
220          (iii) Offenders are not a class of persons under [that act.] Title 63G, Chapter 3, Utah
221     Administrative Rulemaking Act.
222          [(b)] (c) [Standards] The standards shall provide for inquiring into and processing
223     offender complaints.
224          [(c) (i)] (d) (i) The department shall establish minimum standards and qualifications for
225     treatment programs provided in county jails to which persons committed to the state prison are
226     placed by jail contract under Section 64-13e-103.
227          (ii) In establishing the standards and qualifications for the treatment programs, the
228     department shall:
229          (A) consult and collaborate with the county sheriffs and the [Division of Substance
230     Abuse] Office of Substance Use and Mental Health; and
231          (B) include programs demonstrated by recognized scientific research to reduce
232     recidivism by addressing an offender's criminal risk factors as determined by a risk and needs
233     assessment.
234          (iii) All jails contracting to house offenders committed to the state prison shall meet the
235     minimum standards for treatment programs as established under this Subsection [(1)(c)] (1)(d).
236          [(d)]
237          [(i)] (e) (i) The department shall establish minimum standards [of treatment for sex
238     offenders] for sex offense treatment, which shall include the requirements under Subsection
239     64-13-7.5(3) regarding licensure and competency.
240          (ii) The standards shall require the use of [the most current best practices demonstrated
241     by recognized scientific research to address an offender's] evidence-based practices to address
242     criminal risk factors as determined by validated assessments.
243          (iii) The department shall collaborate with the [Division of Substance Abuse] Office of
244     Substance Use and Mental Health to develop and effectively distribute the standards to jails
245     and to mental health professionals who desire to provide mental health treatment for sex
246     offenders.
247          (iv) The department shall establish the standards by administrative rule [pursuant to] in
248     accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
249          [(2) The department shall establish an audit for compliance with standards established
250     under this section according to policies and procedures established by the department, for
251     continued operation of correctional and treatment programs provided to offenders committed to
252     the department's custody, including inmates housed in county jails by contract with the
253     Department of Corrections.]
254          [(a) At least every three years, the department shall internally audit all programs for
255     compliance with established standards.]
256          [(b) All financial statements and accounts of the department shall be reviewed during
257     the audit. Written review shall be provided to the managers of the programs and the executive
258     director of the department.]
259          [(c) The reports shall be classified as confidential internal working papers and access is
260     available at the discretion of the executive director or the governor, or upon court order.]
261          [(3)] (2) (a) The department shall establish a certification [program] process for public
262     and private providers of treatment for sex offenders on probation or parole that requires the
263     providers' sex [offender] offense treatment practices meet the standards and practices
264     established under Subsection [(1)(d) to reduce] (1)(e)(i) with the goal of reducing sex offender
265     recidivism.
266          [(a)] (b) The department shall collaborate with the [Division of Substance Abuse]
267     Office of Substance Use and Mental Health to develop, coordinate, and implement the
268     certification [program] process.
269          [(b)] (c) The department shall base the certification [program shall be based] process
270     on the standards under Subsection [(1)(d) and shall] (1)(e)(i) and require renewal of
271     certification every two years.
272          [(c)] (d) All public and private providers of sex [offender] offense treatment, including
273     those providing treatment to offenders housed in county jails by contract under Section
274     64-13e-103, shall comply with [these] the standards [on and after July 1, 2016,] in order to
275     begin receiving or continue receiving payment from the department to provide sex [offender
276     treatment on or after July 1, 2016] offense treatment.
277          [(d)] (e) The department shall establish the certification program by administrative rule
278     [pursuant to] in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
279          (3) (a) The department shall establish an audit process to ensure compliance with sex
280     offense and substance use treatment standards established under this section in accordance with
281     the department's policies and procedures.
282          (b) At least every three years, the department shall internally audit sex offense and
283     substance use treatment programs for compliance with standards established under this section.
284          (c) The individuals undertaking the audit shall provide a written report to the managers
285     of the programs audited and to the executive director of the department.
286          (d) The department's internal audit reports shall:
287          (i) be classified as confidential internal working papers; and
288          (ii) be accessible at the discretion of the executive director or the governor, or upon
289     court order.
290          (4) The department:
291          (a) shall establish performance goals and outcome measurements for all programs that
292     are subject to the minimum standards established under this section and [shall] collect data to
293     analyze and evaluate whether the goals and measurements are attained[.];
294          [(a)] (b) [The department] shall collaborate with the [Division of Substance Abuse]
295     Office of Substance Use and Mental Health to develop and coordinate the performance goals
296     and outcome measurements, including recidivism rates and treatment success and failure
297     rates[.];
298          [(b)] (c) [The department] may use [these] the data collected under Subsection (4)(b) to
299     make decisions on the use of funds to provide treatment for which standards are established
300     under this section[.];
301          [(c)] (d) [The department] shall collaborate with the [Division of Substance Abuse]
302     Office of Substance Use and Mental Health to track a subgroup of participants to determine if
303     there is a net positive result from the use of treatment as an alternative to incarceration[.];
304          [(d)] (e) [The department] shall collaborate with the [Division of Substance Abuse]
305     Office of Substance Use and Mental Health to evaluate the costs, including any additional
306     costs, and the resources needed to attain the performance goals established for the use of
307     treatment as an alternative to incarceration[.]; and
308          [(e)] (f) [The department] shall annually provide data collected under this Subsection
309     (4) to the State Commission on Criminal and Juvenile Justice on or before August 31.
310          (5) The [commission] State Commission on Criminal and Juvenile Justice shall
311     compile a written report of the findings based on the data collected under Subsection (4) and
312     [shall] provide the report to the legislative Judiciary Interim Committee, the Health and Human
313     Services Interim Committee, the Law Enforcement and Criminal Justice Interim Committee,
314     and the related appropriations subcommittees.
315          Section 6. Section 77-18-103 is amended to read:
316          77-18-103. Presentence investigation report -- Classification of presentence
317     investigation report -- Evidence or other information at sentencing.
318          (1) Before the imposition of a sentence, the court may:
319          (a) upon agreement of the defendant, continue the date for the imposition of the
320     sentence for a reasonable period of time for the purpose of obtaining a presentence
321     investigation report from the department or a law enforcement agency, or information from any
322     other source about the defendant; and
323          (b) if the defendant is convicted of a felony or a class A misdemeanor, request that the
324     department or a law enforcement agency prepare a presentence investigation report for the
325     defendant.
326          (2) If a presentence investigation report is required under the standards established by
327     the department described in Section 77-18-109, the presentence investigation report under
328     Subsection (1) shall include:
329          (a) any impact statement provided by a victim as described in Subsection
330     77-38b-203(3)(c);
331          (b) information on restitution as described in Subsections 77-38b-203(3)(a) and (b);
332          (c) findings from any screening and any assessment of the defendant conducted under
333     Section 77-18-104;
334          (d) recommendations for treatment for the defendant; and
335          (e) the number of days since the commission of the offense that the defendant has spent
336     in the custody of the jail and the number of days, if any, the defendant was released to a
337     supervised release program or an alternative incarceration program under Section 17-22-5.5.
338          (3) The department or law enforcement agency shall provide the presentence
339     investigation report to the defendant's attorney, or the defendant if the defendant is not
340     represented by counsel, the prosecuting attorney, and the court for review within three working
341     days before the day on which the defendant is sentenced.
342          (4) (a) (i) If there is an alleged inaccuracy in the presentence investigation report that is
343     not resolved by the parties and the department or law enforcement agency before sentencing:
344          (A) the alleged inaccuracy shall be brought to the attention of the court at sentencing;
345     and
346          (B) the court may grant an additional 10 working days after the day on which the
347     alleged inaccuracy is brought to the court's attention to allow the parties and the department to
348     resolve the alleged inaccuracy in the presentence investigation report.
349          (ii) If the court does not grant additional time under Subsection (4)(a)(i)(B), or the
350     alleged inaccuracy cannot be resolved after 10 working days, and if the court finds that there is
351     an inaccuracy in the presentence investigation report, the court shall:
352          (A) enter a written finding as to the relevance and accuracy of the challenged portion of
353     the presentence investigation report; and
354          (B) provide the written finding to the Division of Adult Probation and Parole or the
355     law enforcement agency.
356          (b) The Division of Adult Probation and Parole shall attach the written finding to the
357     presentence investigation report as an addendum.
358          (c) If a party fails to challenge the accuracy of the presentence investigation report at
359     the time of sentencing, the matter shall be considered waived.
360          (5) The contents of the presentence investigation report are protected and not available
361     except by court order for purposes of sentencing as provided by rule of the Judicial Council or
362     for use by the department or law enforcement agency.
363          (6) (a) A presentence investigation report is classified as protected in accordance with
364     Title 63G, Chapter 2, Government Records Access and Management Act.
365          (b) Notwithstanding Sections 63G-2-403 and 63G-2-404, the State Records Committee
366     may not order the disclosure of a presentence investigation report.
367          (7) Except for disclosure at the time of sentencing in accordance with this section, the
368     department or law enforcement agency may disclose a presentence investigation only when:
369          (a) ordered by the court in accordance with Subsection 63G-2-202(7);
370          (b) requested by a law enforcement agency or other agency approved by the department
371     for purposes of supervision, confinement, and treatment of a defendant;
372          (c) requested by the board;
373          (d) requested by the subject of the presentence investigation report or the subject's
374     authorized representative;
375          (e) requested by the victim of the offense discussed in the presentence investigation
376     report, or the victim's authorized representative, if the disclosure is only information relating
377     to:
378          (i) statements or materials provided by the victim;
379          (ii) the circumstances of the offense, including statements by the defendant; or
380          (iii) the impact of the offense on the victim or the victim's household; or
381          (f) requested by a sex offender treatment provider:
382          (i) who is certified to provide treatment under the certification program established in
383     Subsection [64-13-25(3)] 64-13-25(2);
384          (ii) who is providing, at the time of the request, sex offender treatment to the offender
385     who is the subject of the presentence investigation report; and
386          (iii) who provides written assurance to the department that the report:
387          (A) is necessary for the treatment of the defendant;
388          (B) will be used solely for the treatment of the defendant; and
389          (C) will not be disclosed to an individual or entity other than the defendant.
390          (8) (a) At the time of sentence, the court shall receive any testimony, evidence, or
391     information that the defendant or the prosecuting attorney desires to present concerning the
392     appropriate sentence.
393          (b) Testimony, evidence, or information under Subsection (8)(a) shall be presented in
394     open court on record and in the presence of the defendant.