This document includes House Floor Amendments incorporated into the bill on Tue, Feb 6, 2024 at 3:57 PM by housengrossing.
This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Feb 26, 2024 at 2:03 PM by lpoole.
1
2
3
4
5
6
7 LONG TITLE
8 General Description:
9 This bill amends provisions related to victims of sexual offenses.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ moves a statute regarding custody and parent-time for a child conceived as a result
14 of a sexual offense;
15 ▸ amends the requirements for retaining or disposing of a sexual assault kit;
16 ▸ requires agency to provide a victim with notice of intent when the agency intends to
17 destroy or dispose of a sexual assault kit;
18 ▸ addresses the rights for victims of sexual offenses, including rights related to sexual
19 assault kits;
20 ▸ allows for the termination of parental rights of a parent who Ŝ→ [
20a convicted of ←Ŝ a sexual
21 offense Ĥ→ [
22 interests of the child
22a and
23 ▸ makes technical and conforming changes.
24 Money Appropriated in this Bill:
25 None
26 Other Special Clauses:
27 This bill provides a coordination clause.
28 Utah Code Sections Affected:
29 AMENDS:
30 30-3-10, as last amended by Laws of Utah 2023, Chapters 44, 327
31 53-10-902, as renumbered and amended by Laws of Utah 2022, Chapter 430
32 77-11c-101, as renumbered and amended by Laws of Utah 2023, Chapter 448
33 77-11c-201, as enacted by Laws of Utah 2023, Chapter 448
34 77-11c-202, as enacted by Laws of Utah 2023, Chapter 448
35 77-11c-301, as renumbered and amended by Laws of Utah 2023, Chapter 448
36 77-11c-401, as renumbered and amended by Laws of Utah 2023, Chapter 448
37 77-37-2, as enacted by Laws of Utah 1987, Chapter 194
38 77-37-3, as last amended by Laws of Utah 2023, Chapter 448
39 80-4-301, as last amended by Laws of Utah 2022, Chapter 335
40 REPEALS AND REENACTS:
41 53-10-905, as renumbered and amended by Laws of Utah 2022, Chapter 430
42 REPEALS:
43 76-5-414, as enacted by Laws of Utah 2013, Chapter 193
44 Utah Code Sections Affected By Coordination Clause:
45 77-11c-301, as renumbered and amended by Laws of Utah 2023, Chapter 448
46 77-11c-401, as renumbered and amended by Laws of Utah 2023, Chapter 448
47
48 Be it enacted by the Legislature of the state of Utah:
49 Section 1. Section 30-3-10 is amended to read:
50 30-3-10. Custody and parent-time of a child -- Custody factors -- Child conceived
51 as a result of a sexual offense.
52 (1) If a married couple having one or more minor children are separated, or the married
53 couple's marriage is declared void or dissolved, the court shall enter, and has continuing
54 jurisdiction to modify, an order of custody and parent-time.
55 (2) In determining any form of custody and parent-time under Subsection (1), the court
56 shall consider the best interest of the child and may consider among other factors the court
57 finds relevant, the following for each parent:
58 (a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional
59 abuse, involving the child, the parent, or a household member of the parent;
60 (b) the parent's demonstrated understanding of, responsiveness to, and ability to meet
61 the developmental needs of the child, including the child's:
62 (i) physical needs;
63 (ii) emotional needs;
64 (iii) educational needs;
65 (iv) medical needs; and
66 (v) any special needs;
67 (c) the parent's capacity and willingness to function as a parent, including:
68 (i) parenting skills;
69 (ii) co-parenting skills, including:
70 (A) ability to appropriately communicate with the other parent;
71 (B) ability to encourage the sharing of love and affection; and
72 (C) willingness to allow frequent and continuous contact between the child and the
73 other parent, except that, if the court determines that the parent is acting to protect the child
74 from domestic violence, neglect, or abuse, the parent's protective actions may be taken into
75 consideration; and
76 (iii) ability to provide personal care rather than surrogate care;
77 (d) in accordance with Subsection (10), the past conduct and demonstrated moral
78 character of the parent;
79 (e) the emotional stability of the parent;
80 (f) the parent's inability to function as a parent because of drug abuse, excessive
81 drinking, or other causes;
82 (g) whether the parent has intentionally exposed the child to pornography or material
83 harmful to minors, as "material" and "harmful to minors" are defined in Section 76-10-1201;
84 (h) the parent's reasons for having relinquished custody or parent-time in the past;
85 (i) duration and depth of desire for custody or parent-time;
86 (j) the parent's religious compatibility with the child;
87 (k) the parent's financial responsibility;
88 (l) the child's interaction and relationship with step-parents, extended family members
89 of other individuals who may significantly affect the child's best interests;
90 (m) who has been the primary caretaker of the child;
91 (n) previous parenting arrangements in which the child has been happy and
92 well-adjusted in the home, school, and community;
93 (o) the relative benefit of keeping siblings together;
94 (p) the stated wishes and concerns of the child, taking into consideration the child's
95 cognitive ability and emotional maturity;
96 (q) the relative strength of the child's bond with the parent, meaning the depth, quality,
97 and nature of the relationship between the parent and the child; and
98 (r) any other factor the court finds relevant.
99 (3) There is a rebuttable presumption that joint legal custody, as defined in Section
100 30-3-10.1, is in the best interest of the child, except in cases when there is:
101 (a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional
102 abuse involving the child, a parent, or a household member of the parent;
103 (b) special physical or mental needs of a parent or child, making joint legal custody
104 unreasonable;
105 (c) physical distance between the residences of the parents, making joint decision
106 making impractical in certain circumstances; or
107 (d) any other factor the court considers relevant including those listed in this section
108 and Section 30-3-10.2.
109 (4) (a) The person who desires joint legal custody shall file a proposed parenting plan
110 in accordance with Sections 30-3-10.8 and 30-3-10.9.
111 (b) A presumption for joint legal custody may be rebutted by a showing by a
112 preponderance of the evidence that it is not in the best interest of the child.
113 (5) (a) A child may not be required by either party to testify unless the trier of fact
114 determines that extenuating circumstances exist that would necessitate the testimony of the
115 child be heard and there is no other reasonable method to present the child's testimony.
116 (b) (i) The court may inquire of the child's and take into consideration the child's
117 desires regarding future custody or parent-time schedules, but the expressed desires are not
118 controlling and the court may determine the child's custody or parent-time otherwise.
119 (ii) The desires of a child 14 years old or older shall be given added weight, but is not
120 the single controlling factor.
121 (c) (i) If an interview with a child is conducted by the court pursuant to Subsection
122 (5)(b), the interview shall be conducted by the judge in camera.
123 (ii) The prior consent of the parties may be obtained but is not necessary if the court
124 finds that an interview with a child is the only method to ascertain the child's desires regarding
125 custody.
126 (6) (a) Except as provided in Subsection (6)(b), a court may not discriminate against a
127 parent due to a disability, as defined in Section 57-21-2, in awarding custody or determining
128 whether a substantial change has occurred for the purpose of modifying an award of custody.
129 (b) The court may not consider the disability of a parent as a factor in awarding custody
130 or modifying an award of custody based on a determination of a substantial change in
131 circumstances, unless the court makes specific findings that:
132 (i) the disability significantly or substantially inhibits the parent's ability to provide for
133 the physical and emotional needs of the child at issue; and
134 (ii) the parent with a disability lacks sufficient human, monetary, or other resources
135 available to supplement the parent's ability to provide for the physical and emotional needs of
136 the child at issue.
137 (c) Nothing in this section may be construed to apply to adoption proceedings under
138 Title 78B, Chapter 6, Part 1, Utah Adoption Act.
139 (7) This section does not establish a preference for either parent solely because of the
140 gender of the parent.
141 (8) This section establishes neither a preference nor a presumption for or against joint
142 physical custody or sole physical custody, but allows the court and the family the widest
143 discretion to choose a parenting plan that is in the best interest of the child.
144 (9) When an issue before the court involves custodial responsibility in the event of a
145 deployment of one or both parents who are service members and the service member has not
146 yet been notified of deployment, the court shall resolve the issue based on the standards in
147 Sections 78B-20-306 through 78B-20-309.
148 (10) In considering the past conduct and demonstrated moral standards of each party
149 under Subsection (2)(d) or any other factor a court finds relevant, the court may not:
150 (a) consider or treat a parent's lawful possession or use of cannabis in a medicinal
151 dosage form, a cannabis product in a medicinal dosage form, or a medical cannabis device, in
152 accordance with Title 4, Chapter 41a, Cannabis Production Establishments and Pharmacies,
153 Title 26B, Chapter 4, Part 2, Cannabinoid Research and Medical Cannabis, or Subsection
154 58-37-3.7(2) or (3) any differently than the court would consider or treat the lawful possession
155 or use of any prescribed controlled substance; or
156 (b) discriminate against a parent because of the parent's status as a:
157 (i) cannabis production establishment agent, as that term is defined in Section
158 4-41a-102;
159 (ii) medical cannabis pharmacy agent, as that term is defined in Section 26B-4-201;
160 (iii) medical cannabis courier agent, as that term is defined in Section 26B-4-201; or
161 (iv) medical cannabis cardholder in accordance with Title 26B, Chapter 4, Part 2,
162 Cannabinoid Research and Medical Cannabis.
163 (11) Notwithstanding any other provision of this chapter, the court may not grant
164 custody or parent-time of a child to a parent convicted of a sexual offense, as defined in
165 Section 77-37-2, that resulted in the conception of the child unless:
166 (a) the nonconvicted biological parent, or the legal guardian of the child, consents to
167 custody or parent-time and the court determines it is in the best interest of the child to award
168 custody or parent-time to the convicted parent; or
169 (b) after the date of the conviction, the convicted parent and the nonconvicted parent
170 cohabit and establish a mutual custodial environment for the child.
171 (12) A denial of custody or parent-time under Subsection (11) does not:
172 (a) terminate the parental rights of the parent denied parent-time or custody; or
173 (b) affect the obligation of the convicted parent to financially support the child.
174 Section 2. Section 53-10-902 is amended to read:
175 53-10-902. Definitions.
176 [
177 (1) "Collecting facility" means a hospital, health care facility, or other facility that
178 performs sexual assault examinations.
179 (2) "Department" means the Department of Public Safety.
180 (3) "Restricted kit" means a sexual assault kit:
181 (a) that is collected by a collecting facility; and
182 (b) for which a victim who is 18 years old or older at the time of the sexual assault kit
183 evidence collection declines:
184 (i) to have his or her sexual assault kit processed; and
185 (ii) to have the sexual assault examination form shared with any entity outside of the
186 collection facility.
187 (4) "Sexual assault kit" means a package of items that is used by medical personnel to
188 gather and preserve biological and physical evidence following an allegation of [
189 a sexual offense.
190 (5) "Sexual offense" means the same as that term is defined in Section 77-37-2.
191 [
192 and practices that:
193 (a) have demonstrated an ability to minimize retraumatization associated with the
194 criminal justice process by recognizing the presence of trauma symptoms and acknowledging
195 the role that trauma has played in the life of a victim [
196 (b) encourage law enforcement officers to interact with victims [
197
198 (7) "Victim" means an individual against whom a sexual offense has been committed
199 or allegedly been committed.
200 Section 3. Section 53-10-905 is repealed and reenacted to read:
201 53-10-905. Sexual assault kit retention and disposal -- Notification.
202 (1) As used in this section:
203 (a) "Agency" means the same as that term is defined in Section 77-11a-101.
204 (b) "Agency" includes an evidence collecting or retaining entity as defined in Section
205 77-11c-101.
206 (2) An agency with custody of a sexual assault kit shall preserve the sexual assault kit
207 in accordance with Title 77, Chapter 11c, Retention of Evidence.
208 (3) An agency shall send a notice to a victim that the agency intends to dispose of a
209 sexual assault kit if:
210 (a) the agency intends to dispose of the sexual assault kit before the applicable time
211 period described in Sections 77-11c-201, 77-11c-301, or 77-11c-401 expires; and
212 (b) the victim provided a written request to the agency investigating the sexual offense
213 that the victim receive notice of when the agency intends to dispose of the sexual assault kit.
214 (4) An agency shall send a notice of intent to dispose of a sexual assault kit to the
215 victim:
216 (a) at least 180 days before the day on which the agency intends to dispose of the
217 sexual assault kit; and
218 (b) by certified mail, return receipt requested, or a delivery service that provides proof
219 of delivery.
220 (5) If a victim receives a notice of intent to dispose of a sexual assault kit, the victim
221 may submit a written request, within the 180-day period described in Subsection (4)(a), that the
222 agency retain the sexual assault kit.
223 (6) A notice of intent to dispose of a sexual assault kit shall provide the victim with
224 information on how to submit a written request described in Subsection (5).
225 (7) If an agency receives a written request to retain the sexual assault kit from the
226 victim within the 180-day period described in Subsection (4)(a), the agency shall retain the
227 sexual assault kit for the applicable time period described in Section 77-11c-201, 77-11c-301,
228 or 77-11c-401.
229 Section 4. Section 77-11c-101 is amended to read:
230 77-11c-101. Definitions.
231 As used in this chapter:
232 (1) "Acquitted" means the same as that term is defined in Section 77-11b-101.
233 (2) "Adjudicated" means that:
234 (a) (i) a judgment of conviction by plea or verdict of an offense has been entered by a
235 court; and
236 (ii) a sentence has been imposed by the court; or
237 (b) a judgment has been entered for an adjudication of an offense by a juvenile court
238 under Section 80-6-701.
239 (3) "Adjudication" means:
240 (a) a judgment of conviction by plea or verdict of an offense; or
241 (b) an adjudication for an offense by a juvenile court under Section 80-6-701.
242 (4) "Agency" means the same as that term is defined in Section 77-11a-101.
243 (5) "Appellate court" means the Utah Court of Appeals, the Utah Supreme Court, or
244 the United States Supreme Court.
245 (6) (a) "Biological evidence" means an item that contains blood, semen, hair, saliva,
246 epithelial cells, latent fingerprint evidence that may contain biological material suitable for
247 DNA testing, or other identifiable human biological material that:
248 (i) is collected as part of an investigation or prosecution of a violent felony offense;
249 and
250 (ii) may reasonably be used to incriminate or exculpate a person for the violent felony
251 offense.
252 (b) "Biological evidence" includes:
253 (i) material that is catalogued separately, including:
254 (A) on a slide or swab; or
255 (B) inside a test tube, if the evidentiary sample that previously was inside the test tube
256 has been consumed by testing;
257 (ii) material that is present on other evidence, including clothing, a ligature, bedding, a
258 drinking cup, a cigarette, or a weapon, from which a DNA profile may be obtained;
259 (iii) the contents of a sexual assault [
260 (iv) for a violent felony offense, material described in this Subsection (6) that is in the
261 custody of an evidence collecting or retaining entity on May 4, 2022.
262 (7) "Claimant" means the same as that term is defined in Section 77-11a-101.
263 (8) "Computer" means the same as that term is defined in Section 77-11a-101.
264 (9) "Continuous chain of custody" means:
265 (a) for a law enforcement agency or a court, that legal standards regarding a continuous
266 chain of custody are maintained; and
267 (b) for an entity that is not a law enforcement agency or a court, that the entity
268 maintains a record in accordance with legal standards required of the entity.
269 (10) "Contraband" means the same as that term is defined in Section 77-11a-101.
270 (11) "Controlled substance" means the same as that term is defined in Section 58-37-2.
271 (12) "Court" means a municipal, county, or state court.
272 (13) "DNA" means deoxyribonucleic acid.
273 (14) "DNA profile" means a unique identifier of an individual derived from DNA.
274 (15) "Drug paraphernalia" means the same as that term is defined in Section 58-37a-3.
275 (16) "Evidence" means property, contraband, or an item or substance that:
276 (a) is seized or collected as part of an investigation or prosecution of an offense; and
277 (b) may reasonably be used to incriminate or exculpate an individual for an offense.
278 (17) (a) "Evidence collecting or retaining entity" means an entity within the state that
279 collects, stores, or retrieves biological evidence.
280 (b) "Evidence collecting or retaining entity" includes:
281 (i) a medical or forensic entity;
282 (ii) a law enforcement agency;
283 (iii) a court; and
284 (iv) an official, employee, or agent of an entity or agency described in this Subsection
285 (17).
286 (c) "Evidence collecting or retaining entity" does not include a collecting facility as
287 defined in Section 53-10-902.
288 (18) "Exhibit" means property, contraband, or an item or substance that is admitted
289 into evidence for a court proceeding.
290 (19) "In custody" means an individual who:
291 (a) is incarcerated, civilly committed, on parole, or on probation; or
292 (b) is required to register under Title 77, Chapter 41, Sex and Kidnap Offender
293 Registry.
294 (20) "Law enforcement agency" means the same as that term is defined in Section
295 77-11a-101.
296 (21) "Medical or forensic entity" means a private or public hospital, medical facility, or
297 other entity that secures biological evidence or conducts forensic examinations related to
298 criminal investigations.
299 (22) "Physical evidence" includes evidence that:
300 (a) is related to:
301 (i) an investigation;
302 (ii) an arrest; or
303 (iii) a prosecution that resulted in a judgment of conviction; and
304 (b) is in the actual or constructive possession of a law enforcement agency or a court or
305 an agent of a law enforcement agency or a court.
306 (23) "Property" means the same as that term is defined in Section 77-11a-101.
307 (24) "Prosecuting attorney" means the same as that term is defined in Section
308 77-11a-101.
309 (25) "Sexual assault kit" means the same as that term is defined in Section 53-10-902.
310 (26) "Victim" means the same as that term is defined in Section 53-10-902.
311 [
312 defined in Section 76-3-203.5.
313 [
314 Section 5. Section 77-11c-201 is amended to read:
315 77-11c-201. Retention of evidence of misdemeanor offenses.
316 (1) An agency shall retain evidence of a misdemeanor offense for the longer of:
317 (a) the length of the statute of limitations for the offense if:
318 (i) no charges are filed for the offense; or
319 (ii) the offense remains unsolved;
320 (b) 60 days after the day on which any individual charged with the offense is acquitted
321 if each individual charged with the offense is acquitted;
322 (c) 90 days after the day on which any individual is adjudicated for the offense if:
323 (i) each individual charged with the offense has been adjudicated;
324 (ii) there is no appeal pending in:
325 (A) an appellate court for any individual adjudicated for the offense; or
326 (B) the district court for a trial de novo for any individual adjudicated by a justice court
327 for the offense; and
328 (iii) there is no post-trial motion pending in the court:
329 (A) for a new trial under Rule 24 of the Utah Rules of Criminal Procedure;
330 (B) to amend or make additional findings of fact under Rule 52(b) of the Utah Rules of
331 Civil Procedure; or
332 (C) for relief under Rule 60(b) of the Utah Rules of Civil Procedure;
333 (d) 30 days after the day on which any individual is adjudicated by a district court for
334 the offense on a trial de novo from the justice court if:
335 (i) each individual charged with the offense has been adjudicated by a justice court or a
336 district court on a trial de novo from the justice court; and
337 (ii) there is no appeal pending in:
338 (A) an appellate court for any individual adjudicated for the offense; or
339 (B) the district court for a trial de novo for any individual adjudicated by a justice court
340 for the offense; [
341 (e) 30 days after the day on which an appellate court issues a remittitur for an appeal of
342 any individual adjudicated for the offense if:
343 (i) the appellate court's final decision upholds the individual's adjudication;
344 (ii) each individual charged with the offense has been adjudicated; and
345 (iii) there is no appeal pending in:
346 (A) an appellate court for any individual adjudicated for the offense; or
347 (B) the district court for a trial de novo for any individual adjudicated by a justice court
348 for the offense[
349 (f) 20 years from the day on which the evidence is collected if the evidence is a sexual
350 assault kit.
351 (2) Subsection (1) does not require an agency to return or dispose of evidence of a
352 misdemeanor offense.
353 (3) An agency shall ensure that evidence of a misdemeanor offense is subject to a
354 continuous chain of custody.
355 Section 6. Section 77-11c-202 is amended to read:
356 77-11c-202. Requirements for not retaining evidence -- Preservation of sufficient
357 evidence.
358 (1) An agency is not required to retain evidence of a misdemeanor offense under
359 Section 77-11c-201 if:
360 (a) (i) the agency determines that:
361 (A) the size, bulk, or physical character of the evidence renders retention
362 impracticable; or
363 (B) the evidence poses a security or safety problem for the agency;
364 (ii) the agency preserves sufficient evidence of the property, contraband, item, or
365 substance for use as evidence in a prosecution of the offense in accordance with this section;
366 (iii) the agency sends a written request under Subsection 77-11c-203(1) to the
367 prosecuting attorney for permission to release or dispose of the evidence; and
368 (iv) the prosecuting attorney grants the agency's written request in accordance with
369 Section 77-11c-203;
370 (b) a court orders the agency to return evidence that is property to a claimant under
371 Section 77-11a-305; or
372 (c) the evidence is wildlife or parts of wildlife.
373 (2) Notwithstanding Subsection (1), the agency may not dispose of evidence of a
374 misdemeanor offense that is a sexual assault kit before the day on which the time period
375 described in Section 77-11c-201 expires if:
376 (a) the agency sends a notice to the victim as described in Section 53-10-905; and
377 (b) the victim submits a written request for retention of the evidence within the
378 180-day period described in Section 53-10-905.
379 [
380 of a misdemeanor offense.
381 (b) Subsection (1)(a) does not apply when the release or disposal of evidence of a
382 misdemeanor offense is in compliance with a memorandum of understanding between the
383 agency and the prosecuting attorney.
384 [
385 evidence under Subsection (1)(a)(ii) of the controlled substance by:
386 (a) collecting and preserving a sample of the controlled substance and a sample of
387 biological evidence from the controlled substance for independent testing and use as evidence;
388 (b) taking a photographic or video record of the controlled substance with identifying
389 case numbers;
390 (c) maintaining a written report of a chemical analysis of the controlled substance if a
391 chemical analysis was performed by the agency; and
392 (d) if the controlled substance exceeds 10 pounds, retain at least one pound of the
393 controlled substance that is randomly selected from the controlled substance.
394 [
395 under Subsection (1)(a)(ii) of the drug paraphernalia by:
396 (a) collecting and preserving a sample of the controlled substance from the drug
397 paraphernalia for independent testing and use as evidence;
398 (b) maintaining a written report of a chemical analysis of the drug paraphernalia if a
399 chemical analysis was performed by the agency; and
400 (c) taking a photographic or video record of the drug paraphernalia with identifying
401 case numbers.
402 [
403 Subsection (1)(a)(ii) of the computer by:
404 (a) extracting all data from the computer that would be evidence in a prosecution of an
405 individual for the offense;
406 (b) collecting a sample of biological evidence from the computer for independent
407 testing and use as evidence; and
408 (c) taking a photographic or video record of the computer with identifying case
409 numbers.
410 [
411 under Subsection (1)(a)(ii) of the property, contraband, item, or substance by:
412 (a) collecting and preserving a sample of biological evidence from the property,
413 contraband, item, or substance for independent testing and use as evidence; and
414 (b) taking a photographic or video record of the property, contraband, item, or
415 substance with identifying case numbers.
416 The following section is affected by a coordination clause at the end of this bill.
417 Section 7. Section 77-11c-301 is amended to read:
418 77-11c-301. Retention of evidence for felony offenses.
419 (1) Except as provided in Subsection (4) and Subsection 23A-5-201(3), an agency shall
420 retain evidence of a felony offense:
421 (a) at the discretion of the prosecuting attorney; or
422 (b) until all direct appeals and retrials are final.
423 (2) If the prosecuting attorney decides to retain control over the evidence of the felony
424 offense in anticipation of possible collateral attacks upon the judgment or for use in a potential
425 prosecution, the prosecuting attorney may decline to authorize the disposal of the evidence.
426 (3) An agency shall ensure that evidence of a felony offense is subject to a continuous
427 chain of custody.
428 (4) An agency shall retain and preserve biological evidence of a violent felony offense
429 in accordance with Part 4, Preservation of Biological Evidence for Violent Felony Offenses.
430 (5) (a) Notwithstanding Subsection (1), an agency shall retain evidence of a felony
431 offense that is a sexual assault kit for at least 20 years from the day on which the evidence is
432 collected.
433 (b) An agency may not dispose of evidence of a felony offense that is a sexual assault
434 kit before the day on which the time period described in Subsection (5)(a) expires if:
435 (i) the agency sends a notice to the victim in accordance with Section 53-10-905; and
436 (ii) the victim submits a written request for retention of the evidence within the
437 180-day period described in Section 53-10-905.
438 The following section is affected by a coordination clause at the end of this bill.
439 Section 8. Section 77-11c-401 is amended to read:
440 77-11c-401. Preservation of biological evidence -- Procedures -- Inventory
441 request.
442 (1) Except as provided in Section 77-11c-402, an evidence collecting or retaining
443 entity shall preserve biological evidence of a violent felony offense in accordance with this
444 part.
445 (2) An evidence collecting or retaining entity shall preserve biological evidence of a
446 violent felony offense[
447 [
448 [
449 [
450 [
451 [
452 any lesser included violent offense remains in custody; [
453 [
454 (d) 20 years from the day on which the biological evidence is collected if the biological
455 evidence is the contents of a sexual assault kit.
456 [
457 under Subsection (2) is:
458 (a) preserved in an amount and manner sufficient to:
459 (i) develop a DNA profile; and
460 (ii) if practicable, allow for independent testing of the biological evidence by a
461 defendant; and
462 [
463 [
464 Records Access and Management Act, the evidence collecting or retaining entity shall prepare
465 an inventory of the biological evidence preserved in connection with the defendant's criminal
466 case.
467 (b) If the evidence collecting or retaining entity cannot locate biological evidence
468 requested under Subsection [
469 affidavit to the defendant that:
470 (i) describes the efforts taken to locate the biological evidence; and
471 (ii) affirms that the biological evidence could not be located.
472 [
473
474 [
475
476 [
477
478 [
479
480
481 [
482 [
483 (5) (a) If the evidence collecting or retaining entity intends to dispose of [
484 biological evidence of a violent felony offense before the day on which the period described in
485 Subsection [
486 intent to dispose of the biological evidence that:
487 [
488 provides proof of delivery, to:
489 [
490 to the biological evidence;
491 [
492 in Subsection [
493 [
494 individual described in Subsection [
495 [
496 [
497 [
498 party is the individual convicted of the violent felony offense; or
499 [
500 the biological evidence.
501 (b) An individual must file a motion, or submit a written request, described in
502 Subsection (5)(a)(ii) within 180 days after the day on which the evidence collection or retaining
503 entity receives proof of delivery under Subsection (5).
504 (c) An evidence collection or retaining entity shall send a notice of intent to dispose of
505 biological evidence that is the contents of a sexual assault kit to a victim in accordance with
506 Section 53-10-905.
507 (6) The evidence collecting or retaining entity may not dispose of biological evidence
508 of a violent felony offense before the day on which the time period described in Subsection (2)
509 expires if:
510 (a) the evidence collecting or retaining entity is required by federal or state law to
511 preserve the biological evidence; or
512 (b) (i) the evidence collecting or retaining entity sends notice in accordance with:
513 (A) Subsection (5); and
514 (B) Section 53-10-905 if the biological evidence is the contents of a sexual assault kit;
515 and
516 (ii) an individual notified under Subsection (5)(a) or Section 53-10-905:
517 (A) files a motion for testing of the biological evidence under Section 78B-9-301
518 within the 180-day period described in Subsection (5)(b); or
519 (B) submits a written request for retention of the biological evidence within the
520 180-day period described in Subsection (5)(b) or Section 53-10-905.
521 [
522 retaining entity receives a written request to retain the biological evidence [
523
524
525 (b) Subject to Subsection [
526 not required to preserve physical evidence that may contain biological evidence if the physical
527 evidence's size, bulk, or physical character renders retention impracticable.
528 (c) If the evidence collecting or retaining entity determines that retention is
529 impracticable, before returning or disposing of the physical evidence, the evidence collecting or
530 retaining entity shall:
531 (i) remove the portions of the physical evidence likely to contain biological evidence
532 related to the violent felony offense; and
533 (ii) preserve the removed biological evidence in a quantity sufficient to permit future
534 DNA testing.
535 [
536 enforcement agency or a court may:
537 (a) retain the biological evidence; or
538 (b) if a continuous chain of custody can be maintained, return the biological evidence
539 to the custody of the other law enforcement agency that originally provided the biological
540 evidence to the law enforcement agency.
541 Section 9. Section 77-37-2 is amended to read:
542 77-37-2. Definitions.
543 [
544 (1) "Alleged sexual offender" means the same as that term is defined in Section
545 53-10-801.
546 [
547 otherwise specified in statute. The rights to information as extended in this chapter also apply
548 to the parents, custodian, or legal guardians of children.
549 [
550 guardian.
551 (4) "HIV infection" means the same as that term is defined in Section 53-10-801.
552 (5) "Sexual assault kit" means the same as that term is defined in Section 53-10-902.
553 (6) "Sexual offense" means any conduct described in:
554 (a) Title 76, Chapter 5, Part, 4, Sexual Offenses;
555 (b) Title 76, Chapter 5b, Sexual Exploitation Act;
556 (c) Section 76-7-102, incest;
557 (d) Section 76-9-702, lewdness; or
558 (e) Section 76-9-702.1, sexual battery.
559 (7) "Victim" means an individual, including a minor, against whom an offense has
560 been allegedly committed.
561 [
562
563
564 [
565 summoned to testify for the prosecution or who by reason of having relevant information is
566 subject to call or likely to be called as a witness for the prosecution, whether any action or
567 proceeding has commenced.
568 Section 10. Section 77-37-3 is amended to read:
569 77-37-3. Bill of rights.
570 (1) The bill of rights for victims and witnesses is:
571 (a) Victims and witnesses have a right to be informed as to the level of protection from
572 intimidation and harm available to them, and from what sources, as they participate in criminal
573 justice proceedings as designated by Section 76-8-508, regarding witness tampering, and
574 Section 76-8-509, regarding threats against a victim. Law enforcement, prosecution, and
575 corrections personnel have the duty to timely provide this information in a form which is useful
576 to the victim.
577 (b) Victims and witnesses, including children and their guardians, have a right to be
578 informed and assisted as to their role in the criminal justice process. All criminal justice
579 agencies have the duty to provide this information and assistance.
580 (c) Victims and witnesses have a right to clear explanations regarding relevant legal
581 proceedings; these explanations shall be appropriate to the age of child victims and witnesses.
582 All criminal justice agencies have the duty to provide these explanations.
583 (d) Victims and witnesses should have a secure waiting area that does not require them
584 to be in close proximity to defendants or the family and friends of defendants. Agencies
585 controlling facilities shall, whenever possible, provide this area.
586 (e) Victims may seek restitution or reparations, including medical costs, as provided in
587 Title 63M, Chapter 7, Criminal Justice and Substance Abuse, Title 77, Chapter 38b, Crime
588 Victims Restitution Act, and Section 80-6-710. State and local government agencies that serve
589 victims have the duty to have a functional knowledge of the procedures established by the
590 Crime Victim Reparations Board and to inform victims of these procedures.
591 (f) Victims and witnesses have a right to have any personal property returned as
592 provided in Chapter 11a, Seizure of Property and Contraband, and Chapter 11d, Lost or
593 Mislaid Property. Criminal justice agencies shall expeditiously return the property when it is no
594 longer needed for court law enforcement or prosecution purposes.
595 (g) Victims and witnesses have the right to reasonable employer intercession services,
596 including pursuing employer cooperation in minimizing employees' loss of pay and other
597 benefits resulting from their participation in the criminal justice process. Officers of the court
598 shall provide these services and shall consider victims' and witnesses' schedules so that
599 activities which conflict can be avoided. Where conflicts cannot be avoided, the victim may
600 request that the responsible agency intercede with employers or other parties.
601 (h) Victims and witnesses, particularly children, should have a speedy disposition of
602 the entire criminal justice process. All involved public agencies shall establish policies and
603 procedures to encourage speedy disposition of criminal cases.
604 (i) Victims and witnesses have the right to timely notice of judicial proceedings they
605 are to attend and timely notice of cancellation of any proceedings. Criminal justice agencies
606 have the duty to provide these notifications. Defense counsel and others have the duty to
607 provide timely notice to prosecution of any continuances or other changes that may be required.
608 [
609 [
610
611
612 [
613
614 [
615
616
617 [
618
619
620
621 [
622
623 [
624
625
626 [
627 [
628
629
630 [
631 [
632
633 [
634
635 [
636
637
638 [
639
640
641
642 [
643
644 [
645
646
647
648 [
649
650
651 (2) In addition to the rights of a victim described in Subsection (1), a victim of a sexual
652 offense has the right to:
653 (a) request voluntary testing for themselves for HIV infection as described in Section
654 53-10-803;
655 (b) request mandatory testing of the alleged sexual offender for HIV infection as
656 described in Section 53-10-802;
657 (c) not to be prevented from, or charged for, a medical forensic examination;
658 (d) have the evidence from a sexual assault kit, or the contents of the sexual assault kit,
659 preserved for the time periods described in Title 77, Chapter 11c, Retention of Evidence,
660 without any charge to the victim;
661 (e) be informed whether a DNA profile was obtained from the testing of the evidence
662 in a sexual assault kit or from other crime scene evidence;
663 (f) be informed whether a DNA profile developed from the evidence in a sexual assault
664 kit, or from other crime scene evidence, has been entered into the Utah Combined DNA Index
665 System;
666 (g) be informed of any result from a sexual assault kit or from other crime scene
667 evidence if that disclosure would not impede or compromise an ongoing investigation,
668 including:
669 (i) whether there is a match between a DNA profile developed from the evidence in a
670 sexual assault kit, or from other crime scene evidence, and a DNA profile contained in the Utah
671 Combined DNA Index System; and
672 (ii) a toxicology result or other information that is collected from a sexual assault kit as
673 part of a medical forensic examination of the victim;
674 (h) be informed in writing of policies governing the collection and preservation of a
675 sexual assault kit;
676 (i) be informed of the status and location of a sexual assault kit;
677 (j) upon written request by the victim, receive a notice of intent from an agency, as
678 defined in Section 53-10-905, if the agency intends to destroy or dispose of evidence from a
679 sexual assault kit;
680 (k) be granted further preservation of the sexual assault kit if the agency, as defined in
681 Section 53-10-905, intends to destroy or dispose of evidence from a sexual assault kit and the
682 victim submits a written request as described in Section 53-10-905;
683 (l) designate a person of the victim's choosing to act as a recipient of the information
684 provided under this Subsection (2) or Subsections (3) and (4); and
685 (m) be informed of all the enumerated rights in this Subsection (2).
686 (3) Subsections (2)(e) through (g) do not require that the law enforcement agency
687 communicate with the victim or the victim's designee regarding the status of DNA testing,
688 absent a specific request received from the victim or the victim's designee.
689 (4) A law enforcement agency investigating a sexual offense may:
690 (a) release the information indicated in Subsections (2)(e) through (g) upon the request
691 of the victim of the sexual offense, or the victim's designee and is the designated agency to
692 provide that information to the victim or the victim's designee;
693 (b) require that the victim's request be in writing; and
694 (c) respond to the victim's request with verbal communication, written communication,
695 or by email if an email address is available.
696 (5) A law enforcement agency investigating a sexual offense shall:
697 (a) notify the victim of the sexual offense, or the victim's designee, if the law
698 enforcement agency determines that DNA evidence will not be analyzed in a case where the
699 identity of the perpetrator has not be confirmed;
700 (b) provide the information described in this section in a timely manner; and
701 (c) upon request of the victim or the victim's designee, advise the victim or the victim's
702 designee of any significant changes in the information of which the law enforcement agency is
703 aware.
704 (6) The law enforcement agency investigating the sexual offense is responsible for
705 informing the victim of the sexual offense, or the victim's designee, of the rights established
706 under this section.
707 [
708 providing the current name, address, telephone number, and email address, if an email address
709 is available, of the person to whom the information should be provided to the criminal justice
710 agencies involved in the case.
711 Section 11. Section 80-4-301 is amended to read:
712 80-4-301. Grounds for termination of parental rights -- Findings regarding
713 reasonable efforts by division.
714 (1) Subject to the protections and requirements of Section 80-4-104, and if the juvenile
715 court finds termination of parental rights, from the child's point of view, is strictly necessary,
716 the juvenile court may terminate all parental rights with respect to the parent if the juvenile
717 court finds [
718 (a) [
719 (b) [
720 (c) [
721 (d) Ĥ→ [
721a1 sexual offense, as defined in
721a Section
722 77-37-2, or a comparable offense under the laws of the state where the Ŝ→ [
722a1 occurred Ĥ→ , against
722a Ŝ→ [
723 Ĥ→ [
724 (iii) termination is in the best interest of the child;
725 [
726 supervision of the juvenile court or the division;
727 (ii) [
728 unwilling to remedy the circumstances that cause the child to be in an out-of-home placement;
729 and
730 (iii) [
731 exercising proper and effective parental care in the near future;
732 [
733 [
734 (i) to support or communicate with the child;
735 (ii) to prevent neglect of the child;
736 (iii) to eliminate the risk of serious harm to the child; or
737 (iv) to avoid being an unfit parent;
738 [
739 the child; and
740 (ii) [
741 [
742 child's own home, the parent substantially and continuously or repeatedly refused or failed to
743 give the child proper parental care and protection; or
744 [
745 complied with[
746 Child.
747 (2) The juvenile court may not terminate the parental rights of a parent because the
748 parent has failed to complete the requirements of a child and family plan.
749 (3) (a) Except as provided in Subsection (3)(b), in any case in which the juvenile court
750 has directed the division to provide reunification services to a parent, the juvenile court must
751 find that the division made reasonable efforts to provide those services before the juvenile
752 court may terminate the parent's rights under Subsection (1)(b), (c), [
753 (g), or (i).
754 (b) Notwithstanding Subsection (3)(a), the juvenile court is not required to make the
755 finding under Subsection (3)(a) before terminating a parent's rights:
756 (i) under Subsection (1)(b), if the juvenile court finds that the abuse or neglect occurred
757 subsequent to adjudication; or
758 (ii) if reasonable efforts to provide the services described in Subsection (3)(a) are not
759 required under federal law, and federal law is not inconsistent with Utah law.
760 Section 12. Repealer.
761 This bill repeals:
762 Section 76-5-414, Child conceived as a result of sexual offense -- Custody and
763 parent-time.
764 Section 13. Effective date.
765 This bill takes effect on May 1, 2024.
766 Section 14. Coordinating H.B. 328 with S.B. 76.
767 If H.B. 328, Victims of Sexual Offenses Amendments, and S.B. 76, Evidence Retention
768 Amendments, both pass and become law, the Legislature intends that, on May 1, 2024:
769 (1) Section 77-11c-301 be amended to read:
770 "77-11c-301. Retention of evidence for felony offenses.
771 [
772
773 [
774 [
775 [
776
777
778 (1) Except as provided in Subsection (4), an agency shall retain evidence of a felony
779 offense:
780 (a) for the longer of:
781 (i) the length of the statute of limitations for the felony offense if:
782 (A) charges are not filed for the felony offense; or
783 (B) the felony offense remains unsolved;
784 (ii) the length of time that any individual convicted of the felony offense, or a lesser
785 included offense, remains in custody;
786 (iii) one year after the day on which all direct appeals of the final judgment for any
787 individual convicted of the felony offense, or a lesser included offense, are exhausted;
788 (iv) the length of time that a petition for postconviction relief, and any appeal of the
789 petition, is pending if an individual convicted of the felony offense files the petition within the
790 one-year time period described in Subsection (1)(a)(iii); or
791 (v) 20 years from the day on which the evidence is collected if the evidence is the
792 contents of a sexual assault kit; or
793 (b) at the discretion of the prosecuting attorney or federal prosecutor if the prosecution
794 of the felony offense resulted in an acquittal or dismissal.
795 [
796 continuous chain of custody.
797 (3) Subsection (1) does not require an agency to return or dispose of evidence of a
798 felony offense.
799 (4) An agency shall retain and preserve biological evidence of a violent felony offense
800 in accordance with Part 4, Preservation of Biological Evidence for Violent Felony Offenses.";
801 (2) Section 77-11c-302 that is enacted by S.B. 76 be amended to read:
802 "77-11c-302. Requirements for not retaining evidence of felony offense --
803 Preservation of sufficient evidence.
804 (1) An agency is not required to retain evidence of a felony offense under Section
805 77-11c-301 if:
806 (a) (i) the agency determines that:
807 (A) the size, bulk, or physical character of the evidence renders retention impracticable
808 or the evidence poses a security or safety problem for the agency; and
809 (B) the evidence no longer has any significant evidentiary value;
810 (ii) the agency preserves sufficient evidence from the property, contraband, item, or
811 substance for use as evidence in a prosecution of the offense; and
812 (iii) a prosecuting attorney or a court authorizes the agency to return or dispose of the
813 evidence as described in Section 77-11c-303;
814 (b) a court orders the agency to return evidence that is property to a claimant under
815 Section 77-11a-305; or
816 (c) the evidence is wildlife or parts of wildlife.
817 (2) Notwithstanding Subsection (1), the agency may not dispose of evidence of a
818 felony offense that is a sexual assault kit before the day on which the time period described in
819 Section 77-11c-301 expires if:
820 (a) the agency sends a notice to the victim in accordance with Section 53-10-905; and
821 (b) the victim submits a written request for retention of the evidence within the
822 180-day period described in Section 53-10-905.
823 (3) Subsection (1) does not require an agency to return or dispose of evidence of a
824 felony offense.
825 (4) Subsection (1) does not apply to biological evidence of a violent felony offense
826 because an agency is required to retain biological evidence of a violent felony offense as
827 described in Part 4, Preservation of Biological Evidence for Violent Felony Offenses.
828 (5) If the evidence described in Subsection (1) is a controlled substance, an agency
829 shall preserve sufficient evidence under Subsection (1)(a)(ii) of the controlled substance by:
830 (a) collecting and preserving a sample of the controlled substance for independent
831 testing and use as evidence;
832 (b) taking a photographic or video record of the controlled substance with identifying
833 case numbers;
834 (c) maintaining a written report of a chemical analysis of the controlled substance if a
835 chemical analysis was performed by the agency;
836 (d) if the controlled substance exceeds 10 pounds, retaining at least one pound of the
837 controlled substance that is randomly selected from the controlled substance; and
838 (e) for a violent felony offense, collecting and preserving biological evidence from the
839 controlled substance as described in Section 77-11c-401.
840 (6) If the evidence described in Subsection (1) is drug paraphernalia, an agency shall
841 preserve sufficient evidence under Subsection (1)(a)(ii) of the drug paraphernalia by:
842 (a) collecting and preserving a sample of the controlled substance from the drug
843 paraphernalia for independent testing and use as evidence;
844 (b) maintaining a written report of a chemical analysis of the drug paraphernalia if a
845 chemical analysis was performed by the agency;
846 (c) taking a photographic or video record of the drug paraphernalia with identifying
847 case numbers; and
848 (d) for a violent felony offense, collecting and preserving biological evidence from the
849 drug paraphernalia as described in Section 77-11c-401.
850 (7) If the evidence described in Subsection (1) is a computer, the agency shall preserve
851 sufficient evidence under Subsection (1)(a)(ii) of the computer by:
852 (a) extracting all data from the computer that would be evidence in a prosecution of an
853 individual for the offense;
854 (b) taking a photographic or video record of the computer with identifying case
855 numbers; and
856 (c) for a violent felony offense, collecting and preserving biological evidence from the
857 computer as described in Section 77-11c-401.
858 (8) For any other type of evidence, the agency shall preserve sufficient evidence under
859 Subsection (1)(a)(ii) of the property, contraband, item, or substance by:
860 (a) taking a photographic or video record of the property, contraband, item, or
861 substance with identifying case numbers; and
862 (b) for a violent felony offense, collecting and preserving biological evidence as
863 described in Section 77-11c-401."; and
864 (3) Section 77-11c-401 be amended to read:
865 "77-11c-401. Preservation of biological evidence -- Procedures -- Inventory
866 request.
867 (1) Except as provided in Section 77-11c-402, an evidence collecting or retaining
868 entity shall preserve biological evidence of a violent felony offense in accordance with this
869 part.
870 (2) An evidence collecting or retaining entity shall preserve biological evidence of a
871 violent felony offense:
872 (a) for the longer of:
873 (i) the length of the statute of limitations for the violent felony offense if:
874 (A) no charges are filed for the violent felony offense; or
875 (B) the violent felony offense remains unsolved;
876 [
877
878 [
879 (ii) the length of time that any individual convicted of the violent felony offense, or a
880 lesser included offense, remains in custody;
881 (iii) one year after the day on which all direct appeals of the judgment for any
882 individual convicted of the violent felony offense, or a lesser included offense, are exhausted;
883 (iv) the length of time that a petition for postconviction relief, and any appeal of the
884 petition, is pending if an individual convicted of the violent felony offense files the petition
885 within the one-year time period described in Subsection (2)(a)(iii); or
886 (v) 20 years from the day on which the biological evidence is collected if the biological
887 evidence is the contents of a sexual assault kit; or
888 (b) at the discretion of the prosecuting attorney or federal prosecutor if the prosecution
889 of the violent felony offense resulted in an acquittal or dismissal.
890 [
891 under Subsection (2) is:
892 (a) preserved in an amount and manner sufficient to:
893 (i) develop a DNA profile; and
894 (ii) if practicable, allow for independent testing of the biological evidence by a
895 defendant; and
896 [
897 [
898 Records Access and Management Act, the evidence collecting or retaining entity shall prepare
899 an inventory of the biological evidence preserved in connection with the defendant's criminal
900 case.
901 (b) If the evidence collecting or retaining entity cannot locate biological evidence
902 requested under Subsection [
903 affidavit to the defendant that:
904 (i) describes the efforts taken to locate the biological evidence; and
905 (ii) affirms that the biological evidence could not be located.
906 [
907
908 [
909
910 [
911
912 [
913
914
915 [
916 [
917 (5) (a) If the evidence collecting or retaining entity intends to dispose of [
918 biological evidence of a violent felony offense before the day on which the period described in
919 Subsection [
920 intent to dispose of the biological evidence that:
921 [
922 provides proof of delivery, to:
923 [
924 to the biological evidence;
925 [
926 in Subsection [
927 (C) the entity that employed the private attorney or public defender at the time of the
928 criminal conviction;
929 [
930 individual described in Subsection [
931 [
932 [
933 [
934 party is the individual convicted of the violent felony offense; or
935 [
936 the biological evidence.
937 (b) An individual must file a motion, or submit a written request, described in
938 Subsection (5)(a)(ii) within 180 days after the day on which the evidence collection or retaining
939 entity receives proof of delivery under Subsection (5)(a).
940 (c) An evidence collection or retaining entity shall send a notice of intent to dispose of
941 biological evidence that is the contents of a sexual assault kit to a victim in accordance with
942 Section 53-10-905.
943 (6) The evidence collecting or retaining entity may not dispose of biological evidence
944 of a violent felony offense before the day on which the time period described in Subsection (2)
945 expires if:
946 (a) the evidence collecting or retaining entity is required by federal or state law to
947 preserve the biological evidence; or
948 (b) (i) the evidence collecting or retaining entity sends notice in accordance with:
949 (A) Subsection (5); and
950 (B) Section 53-10-905 if the biological evidence is the contents of a sexual assault kit;
951 and
952 (ii) an individual notified under Subsection (5)(a) or Section 53-10-905:
953 (A) files a motion for testing of the biological evidence under Section 78B-9-301
954 within the 180-day period described in Subsection (5)(b); or
955 (B) submits a written request for retention of the biological evidence within the
956 180-day period described in Subsection (5)(b) or Section 53-10-905.
957 [
958 retaining entity receives a written request to retain the biological evidence [
959
960
961 [
962
963
964 (b) Subject to Subsection (7)(c), the evidence collecting or retaining entity may only
965 return or dispose of physical evidence of a violent felony offense as described in Part 3,
966 Retention of Evidence for Felony Offenses.
967 (c) If the evidence collecting or retaining entity [
968
969 Part 3, Retention of Evidence for Felony Offenses, before returning or disposing of the physical
970 evidence, the evidence collecting or retaining entity shall:
971 (i) remove the portions of the physical evidence likely to contain biological evidence
972 related to the violent felony offense; and
973 (ii) preserve the removed biological evidence in a quantity sufficient to permit future
974 DNA testing.
975 [
976 enforcement agency or a court may:
977 (a) retain the biological evidence; or
978 (b) if a continuous chain of custody can be maintained, return the biological evidence
979 to the custody of the other law enforcement agency that originally provided the biological
980 evidence to the law enforcement agency.".