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