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