Sexual Offenses Amendments

88
16-6a-1414
26B-2-120
26B-4-501
31A-21-501
34-52-201
34A-5-114
53-10-801
53G-8-201
57-22-5.1
59-27-105
63M-7-502
76-2-306
76-3-203.1
76-3-203.12
76-3-209
76-4-102
76-4-202
76-4-203
76-5-107
76-5-302
76-5b-201
76-7-101
77-2-9
77-7a-104
77-22-2.5
77-36-1
77-37-2
77-38-601
78B-7-502
78B-7-801
80-1-102
80-6-304
81-9-202
81-9-208
0
Sexual Offenses Amendments
2026 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Matthew H. Gwynn
Senate Sponsor: Calvin R. Musselman
LONG TITLE
General Description:
This bill clarifies what constitutes a sexual offense throughout the Utah Code.
Highlighted Provisions:
This bill:
clarifies what constitutes a sexual offense throughout the Utah Code; and
makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides a special effective date.
Utah Code Sections Affected:
AMENDS:
16-6a-1414
, as last amended by Laws of Utah 2025, Chapter 173
26B-2-120
, as last amended by Laws of Utah 2025, Chapter 63
26B-4-501
, as last amended by Laws of Utah 2025, Chapters 173, 340 and 470
31A-21-501
, as last amended by Laws of Utah 2025, Chapters 173, 208
34-52-201
, as last amended by Laws of Utah 2025, Chapter 173
34A-5-114
, as last amended by Laws of Utah 2025, Chapters 173, 425
53-10-801
, as last amended by Laws of Utah 2025, Chapter 173
53G-8-201
, as last amended by Laws of Utah 2025, Chapter 173
57-22-5.1
, as last amended by Laws of Utah 2025, Chapter 173
59-27-105
, as last amended by Laws of Utah 2025, Chapters 173, 214
63M-7-502
, as last amended by Laws of Utah 2025, First Special Session, Chapter 9
76-2-306
, as last amended by Laws of Utah 2025, Chapter 173
76-3-203.1
, as last amended by Laws of Utah 2025, Chapters 173, 174, 178, and 208
76-3-203.12
, as last amended by Laws of Utah 2025, Chapter 173
76-3-209
, as last amended by Laws of Utah 2025, Chapter 173
76-4-102
, as last amended by Laws of Utah 2025, Chapters 173, 204
76-4-202
, as last amended by Laws of Utah 2025, Chapter 173
76-4-203
, as last amended by Laws of Utah 2025, Chapter 173
76-5-107
, as last amended by Laws of Utah 2025, Chapter 173
76-5-302
, as last amended by Laws of Utah 2025, Chapter 173
76-5b-201
, as last amended by Laws of Utah 2025, Chapters 173, 223 and 320
76-7-101
, as last amended by Laws of Utah 2025, Chapters 173, 284
77-2-9
, as last amended by Laws of Utah 2025, Chapter 173
77-7a-104
, as last amended by Laws of Utah 2025, Chapters 173, 249
77-22-2.5
, as last amended by Laws of Utah 2025, Chapter 173
77-36-1
, as last amended by Laws of Utah 2025, Chapters 173, 208 and 277
77-37-2
, as last amended by Laws of Utah 2025, Chapter 173
77-38-601
, as last amended by Laws of Utah 2025, Chapter 173
78B-7-502
, as last amended by Laws of Utah 2025, Chapter 173
78B-7-801
, as last amended by Laws of Utah 2025, Chapters 173, 284
80-1-102
, as last amended by Laws of Utah 2025, Chapter 426
80-6-304
, as last amended by Laws of Utah 2025, Chapters 173, 324
81-9-202
, as last amended by Laws of Utah 2025, Chapter 426
81-9-208
, as last amended by Laws of Utah 2025, Chapter 426
Be it enacted by the Legislature of the state of Utah:
Section 1. Section
16-6a-1414
is amended to read:
16-6a-1414
. Grounds and procedure for judicial dissolution.
(1)
The attorney general or the division director may bring an action in a court with
jurisdiction under Title 78A, Judiciary and Judicial Administration, to dissolve a
nonprofit corporation if it is established that:
(a)
the nonprofit corporation obtained the nonprofit corporation's articles of
incorporation through fraud; or
(b)
the nonprofit corporation has continued to exceed or abuse the authority conferred
upon the nonprofit corporation by law.
(2)
A member or director of a nonprofit corporation may bring an action in a court with
jurisdiction under Title 78A, Judiciary and Judicial Administration, to dissolve the
nonprofit corporation if it is established that:
(a)
(i)
the directors are deadlocked in the management of the corporate affairs;
(ii)
the members, if any, are unable to break the deadlock; and
(iii)
irreparable injury to the nonprofit corporation is threatened or being suffered;
(b)
the directors or those in control of the nonprofit corporation have acted, are acting, or
will act in a manner that is illegal, oppressive, or fraudulent;
(c)
the members are deadlocked in voting power and have failed, for a period that
includes at least two consecutive annual meeting dates, to elect successors to
directors whose terms have expired or would have expired upon the election of their
successors; or
(d)
the corporate assets are being misapplied or wasted.
(3)
A creditor may bring an action in a court with jurisdiction under Title 78A, Judiciary
and Judicial Administration, to dissolve a nonprofit corporation if it is established that:
(a)
(i)
the creditor's claim has been reduced to judgment;
(ii)
the execution on the judgment has been returned unsatisfied; and
(iii)
the nonprofit corporation is insolvent; or
(b)
(i)
the nonprofit corporation is insolvent; and
(ii)
the nonprofit corporation has admitted in writing that the creditor's claim is due
and owing.
(4)
(a)
As used in this Subsection
(4)
:
(i)
(A)
"Misconduct claim" means:
(I)
(A)
a claim for wrongful death, fraud, breach of public trust, or an intentional
tort; or
(II)
(B)
a claim regarding criminal conduct by a director, member, or employee
of the nonprofit corporation that is a felony offense or an offense described in
Title 76, Chapter 5, Part 4, Sexual Offenses, Title 76, Chapter 5b, Sexual
Exploitation Act, or Section
76-7-102
.
(B)
"Misconduct claim" does not include a claim regarding criminal conduct by a
director, member, or employee of the nonprofit corporation that is an offense
described in Section
76-5-417
or
76-5-420
.
(ii)
"Nonprofit corporation" does not include a bona fide church or religious
organization.
(b)
If a person brings a misconduct claim in an action against a nonprofit corporation,
the person may also bring an action to dissolve the nonprofit corporation.
(c)
If a person brings a dissolution action under Subsection
(4)(b)
, the court may only
dissolve the nonprofit corporation if the court finds the nonprofit corporation is liable
for the misconduct claim.
(d)
Upon a motion by the plaintiff in a dissolution action described in Subsection
(4)(b)
,
the court may:
(i)
issue an injunction preventing the nonprofit corporation from selling or disposing
of any assets held by the nonprofit corporation; and
(ii)
require the nonprofit corporation to deposit funds, or post a bond, with the court
for the amount of damages pleaded in the complaint.
(e)
The court may void a transaction that is made by the nonprofit corporation within 12
months before the day on which the action was filed with the court if the court finds
that the transaction is voidable under Section
25-6-202
.
(5)
If an action is brought under this section, it is not necessary to make directors or
members parties to the action to dissolve the nonprofit corporation unless relief is sought
against the members individually.
(6)
In an action under this section, the court may:
(a)
issue injunctions;
(b)
appoint a receiver or a custodian pendente lite with all powers and duties the court
directs; or
(c)
take other action required to preserve the nonprofit corporation's assets wherever
located and carry on the business of the nonprofit corporation until a full hearing can
be held.
(7)
If a nonprofit corporation has been dissolved by voluntary or another action taken under
this part:
(a)
the nonprofit corporation may bring a proceeding to wind up and liquidate its
business and affairs under judicial supervision in accordance with Section
16-6a-1405
;
and
(b)
the attorney general, a director, a member, a creditor, or a plaintiff under Subsection
(4)
may bring a proceeding to wind up and liquidate the affairs of the nonprofit
corporation under judicial supervision in accordance with Section
16-6a-1405
, upon
establishing the grounds set forth in Subsections
(1)
through
(4)
.
Section 2. Section
26B-2-120
is amended to read:
26B-2-120
. Background check -- Direct access to children or vulnerable adults.
(1)
As used in this section:
(a)
(i)
"Applicant" means an individual who is associated with a certification,
contract, or licensee with the department under this part and has direct access,
including:
(A)
an adoptive parent or prospective adoptive parent, including an applicant for
an adoption in accordance with Section
78B-6-128
;
(B)
a foster parent or prospective foster parent;
(C)
an individual who provides respite care to a foster parent or an adoptive parent
on more than one occasion;
(D)
an individual who transports a child for a youth transportation company;
(E)
an individual who provides certified peer support, as defined in Section
26B-5-610
;
(F)
an individual who provides peer supports, has a disability or a family member
with a disability, or is in recovery from a mental illness or a substance use
disorder;
(G)
an individual who has lived experience with the services provided by the
department, and uses that lived experience to provide support, guidance, or
services to promote resiliency and recovery;
(H)
an individual who is identified as a mental health professional, licensed under
Title 58, Chapter 60, Mental Health Professional Practice Act, and engaged in
the practice of mental health therapy, as defined in Section
58-60-102
;
(I)
an individual, other than the child or vulnerable adult receiving the service,
who is 12 years old or older and resides in a home, that is licensed or certified
by the division;
(J)
an individual who is 12 years old or older and is associated with a certification,
contract, or licensee with the department under this part and has or will likely
have direct access;
(K)
a foster home licensee that submits an application for an annual background
screening as required by Subsection
26B-2-105(4)(d)(iii)
; or
(L)
a short-term relief care provider.
(ii)
"Applicant" does not include:
(A)
an individual who is in the custody of the Division of Child and Family
Services or the Division of Juvenile Justice and Youth Services;
(B)
an individual who applies for employment with, or is employed by, the
Department of Health and Human Services;
(C)
a parent of a person receiving services from the Division of Services for
People with Disabilities, if the parent provides direct care to and resides with
the person, including if the parent provides direct care to and resides with the
person pursuant to a court order; or
(D)
an individual or a department contractor who provides services in an adults
only substance use disorder program, as defined by rule adopted by the
Department of Health and Human Services in accordance with Title 63G,
Chapter 3, Utah Administrative Rulemaking Act, and who is not a program
director or a member, as defined by Section
26B-2-105
, of the program.
(b)
"Application" means a background check application to the office.
(c)
"Bureau" means the Bureau of Criminal Identification within the Department of
Public Safety, created in Section
53-10-201
.
(d)
"Criminal finding" means a record of:
(i)
an arrest for a criminal offense;
(ii)
a warrant for a criminal arrest;
(iii)
charges for a criminal offense; or
(iv)
a criminal conviction.
(e)
"Direct access" means that an individual has, or likely will have:
(i)
contact with or access to a child or vulnerable adult by which the individual will
have the opportunity for personal communication or touch with the child or
vulnerable adult; or
(ii)
an opportunity to view medical, financial, or other confidential personal
identifying information of the child, the child's parent or legal guardian, or the
vulnerable adult.
(f)
(i)
"Direct access qualified" means that the applicant has an eligible determination
by the office within the license and renewal time period; and
(ii)
no more than 180 days have passed since the date on which the applicant's
association with a certification, contract, or licensee with the department expires.
(g)
"Incidental care" means occasional care, not in excess of five hours per week and
never overnight, for a foster child.
(h)
"Licensee" means an individual or a human services program licensed by the
division.
(i)
"Non-criminal finding" means a record maintained in:
(i)
the Division of Child and Family Services' Management Information System
described in Section
80-2-1001
;
(ii)
the Division of Child and Family Services' Licensing Information System
described in Section
80-2-1002
;
(iii)
the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or
exploitation database described in Section
26B-6-210
;
(iv)
juvenile court arrest, adjudication, and disposition records;
(v)
the Sex, Kidnap, and Child Abuse Offender Registry described in Title 53,
Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex
offender registry; or
(vi)
a state child abuse or neglect registry.
(j)
"Office" means the Office of Background Processing within the department.
(k)
"Personal identifying information" means:
(i)
current name, former names, nicknames, and aliases;
(ii)
date of birth;
(iii)
physical address and email address;
(iv)
telephone number;
(v)
driver license or other government-issued identification;
(vi)
social security number;
(vii)
only for applicants who are 18 years old or older, fingerprints, in a form
specified by the office; and
(viii)
other information specified by the office by rule made in accordance with Title
63G, Chapter 3, Utah Administrative Rulemaking Act.
(2)
Except as provided in Subsection
(12)
, an applicant or a representative shall submit the
following to the office:
(a)
personal identifying information;
(b)
a fee established by the office under Section
63J-1-504
;
(c)
a disclosure form, specified by the office, for consent for:
(i)
an initial background check upon association with a certification, contract, or
licensee with the department;
(ii)
ongoing monitoring of fingerprints and registries until no longer associated with a
certification, contract, or licensee with the department for 180 days;
(iii)
a background check when the office determines that reasonable cause exists; and
(iv)
retention of personal identifying information, including fingerprints, for
monitoring and notification as described in Subsections
(3)(c)
and
(4)
;
(d)
if an applicant resided outside of the United States and its territories during the five
years immediately preceding the day on which the information described in
Subsections
(2)(a)
through
(c)
is submitted to the office, documentation establishing
whether the applicant was convicted of a crime during the time that the applicant
resided outside of the United States or its territories; and
(e)
an application showing an applicant's association with a certification, contract, or a
licensee with the department, for the purpose of the office tracking the direct access
qualified status of the applicant, which expires 180 days after the date on which the
applicant is no longer associated with a certification, contract, or a licensee with the
department.
(3)
The office:
(a)
shall perform the following duties as part of a background check of an applicant
before the office grants or denies direct access qualified status to an applicant:
(i)
check state and regional criminal background databases for the applicant's
criminal history by:
(A)
submitting personal identifying information to the bureau for a search; or
(B)
using the applicant's personal identifying information to search state and
regional criminal background databases as authorized under Section
53-10-108
;
(ii)
submit the applicant's personal identifying information and fingerprints to the
bureau for a criminal history search of applicable national criminal background
databases;
(iii)
search the Division of Child and Family Services' Licensing Information System
described in Section
80-2-1002
;
(iv)
search the Sex, Kidnap, and Child Abuse Offender Registry described in Title
53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, or a national
sex offender registry for an applicant 18 years old or older;
(v)
search the Division of Child and Family Services' Management Information
System in Section
80-2-1001
, if the applicant is:
(A)
a prospective foster or adoptive parent;
(B)
an employee of a congregate care program; or
(C)
an adult who lives in a foster home.
(vi)
search the Division of Aging and Adult Services' vulnerable adult abuse, neglect,
or exploitation database described in Section
26B-6-210
;
(vii)
search the juvenile court records for substantiated findings of severe child abuse
or neglect described in Section
80-3-404
or
80-3-504
; and
(viii)
search the juvenile court arrest, adjudication, and disposition records, as
provided under Section
78A-6-209
;
(b)
may conduct all or portions of a background check in connection with determining
whether an applicant is direct access qualified, as provided by rule, made by the
office in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(i)
for an annual renewal; or
(ii)
when the office determines that reasonable cause exists;
(c)
may submit an applicant's personal identifying information, including fingerprints, to
the bureau for checking, retaining, and monitoring of state and national criminal
background databases and for notifying the office of new criminal activity associated
with the applicant;
(d)
shall track the status of an applicant under this section to ensure that the applicant is
not required to duplicate the submission of the applicant's fingerprints if the applicant
is associated with more than one certification, contract, or licensee with the
department;
(e)
shall notify the bureau when a direct access qualified individual has not been
associated with a certification, contract, or licensee with the department for a period
of 180 days;
(f)
shall adopt measures to strictly limit access to personal identifying information solely
to the individuals responsible for processing and entering the applications for
background checks and to protect the security of the personal identifying information
the office reviews under this Subsection
(3)
;
(g)
as necessary to comply with the federal requirement to check a state's child abuse
and neglect registry regarding any applicant working in a congregate care program,
shall:
(i)
search the Division of Child and Family Services' Licensing Information System
described in Section
80-2-1002
; and
(ii)
require the child abuse and neglect registry be checked in each state where an
applicant resided at any time during the five years immediately preceding the day
on which the application is submitted to the office; and
(h)
shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, to implement the provisions of this Subsection
(3)
relating to
background checks.
(4)
(a)
With the personal identifying information the office submits to the bureau under
Subsection
(3)
, the bureau shall check against state and regional criminal background
databases for the applicant's criminal history.
(b)
With the personal identifying information and fingerprints the office submits to the
bureau under Subsection
(3)
, the bureau shall check against national criminal
background databases for the applicant's criminal history.
(c)
Upon direction from the office, and with the personal identifying information and
fingerprints the office submits to the bureau under Subsection
(3)(c)
, the bureau shall:
(i)
maintain a separate file of the fingerprints for search by future submissions to the
local and regional criminal records databases, including latent prints; and
(ii)
monitor state and regional criminal background databases and identify criminal
activity associated with the applicant.
(d)
The bureau is authorized to submit the fingerprints to the Federal Bureau of
Investigation Next Generation Identification System, to be retained in the Federal
Bureau of Investigation Next Generation Identification System for the purpose of:
(i)
being searched by future submissions to the national criminal records databases,
including the Federal Bureau of Investigation Next Generation Identification
System and latent prints; and
(ii)
monitoring national criminal background databases and identifying criminal
activity associated with the applicant.
(e)
The bureau shall notify and release to the office all information of criminal activity
associated with the applicant.
(f)
Upon notice that an individual who has direct access qualified status will no longer
be associated with a certification, contract, or licensee with the department, the
bureau shall:
(i)
discard and destroy any retained fingerprints; and
(ii)
notify the Federal Bureau of Investigation when the license has expired or an
individual's direct access to a child or a vulnerable adult has ceased, so that the
Federal Bureau of Investigation will discard and destroy the retained fingerprints
from the Federal Bureau of Investigation Next Generation Identification System.
(5)
(a)
Except as provided in Subsection
(5)(b)
, the office shall deny direct access
qualified status to an applicant who, within three years from the date on which the
office conducts the background check, was convicted of:
(i)
a felony or misdemeanor involving conduct that constitutes any of the following:
(A)
an offense identified as domestic violence, lewdness, voyeurism, battery,
cruelty to animals, or bestiality;
(B)
a violation of any pornography law, including sexual exploitation of a minor
or aggravated sexual exploitation of a minor;
(C)
sexual solicitation or prostitution;
(D)
a violent offense committed in the presence of a child, as described in Section
76-3-203.10
;
(E)
an offense included in Title 76, Chapter 5, Part 1, 2, 3, 4, or 7;
(F)
an offense included in Title 76, Chapter 5b, Sexual Exploitation Act
, other
than Section
76-5b-206
;
(G)
an offense included in Title 76, Chapter 7, Offenses Against the Family;
(H)
an offense included in
Title 76, Chapter 12, Part 3, Privacy Offenses
;
(I)
an offense included in
Title 76, Chapter 15, Part 3, Weapons of Mass
Destruction
;
(J)
an offense included in Title 78B, Chapter 7, Protective Orders and Stalking
Injunctions;
(K)
aggravated arson, as described in Section
76-6-103
;
(L)
aggravated burglary, as described in Section
76-6-203
;
(M)
aggravated exploitation of prostitution, as described in Section
76-5d-208
;
(N)
aggravated robbery, as described in Section
76-6-302
;
(O)
endangering persons in a human services program, as described in Section
26B-2-113
;
(P)
failure to report, as described in Section
80-2-609
;
(Q)
identity fraud crime, as described in Section
76-6-1102
;
(R)
riot, as described in Section
76-9-101
; or
(S)
threatening with or using a dangerous weapon in a fight or quarrel, as
described in Section
76-11-207
; or
(ii)
a felony or misdemeanor offense committed outside of the state that, if committed
in the state, would constitute a violation of an offense described in Subsection
(5)(a)(i)
.
(b)
(i)
Subsection
(5)(a)
does not apply to an applicant who is seeking a position as a
peer support provider or a mental health professional, if the applicant provides
services in a program that serves only adults with a primary mental health
diagnosis, with or without a co-occurring substance use disorder.
(ii)
The office shall conduct a comprehensive review of an applicant described in
Subsection
(5)(b)(i)
in accordance with Subsection
(7)
.
(c)
Subject to Subsection
(5)(d)
, the office shall deny direct access qualified status to an
applicant who:
(i)
a court order prohibits from having direct access to a child or vulnerable adult; or
(ii)
is an applicant for a congregate care program and:
(A)
is subject to an open investigation for a non-criminal finding; or
(B)
has a supported non-criminal finding, excluding a supported finding for
dependency, as defined in Section
80-1-102
, within three years from the date
on which the office conducts the background check.
(d)
(i)
Subsection
(5)(c)
does not apply retrospectively for congregate care program
employees who have an approved background screening on or before July 1,
2025; or
(ii)
notwithstanding Subsection
(5)(c)(ii)(A)
, the division may grant temporary direct
access qualified status to an applicant subject to a condition that the applicant is
directly supervised at all times.
(6)
The office shall conduct a comprehensive review of an applicant's background check if
the applicant:
(a)
has a felony or class A misdemeanor conviction that is more than three years from
the date on which the office conducts the background check, for an offense described
in Subsection
(5)(a)
;
(b)
has a felony charge or conviction that is no more than 10 years from the date on
which the office conducts the background check for an offense not described in
Subsection
(5)(a)
;
(c)
has a felony charge or conviction that is more than 10 years from the date on which
the office conducts the background check, for an offense not described in Subsection
(5)(a)
, with criminal or non-criminal findings after the date of the felony charge or
conviction;
(d)
has a class B misdemeanor or class C misdemeanor conviction that is more than
three years and no more than 10 years from the date on which the office conducts the
background check for an offense described in Subsection
(5)(a)
;
(e)
has a class B misdemeanor or class C misdemeanor conviction that is more than 10
years from the date on which the office conducts the background check, for an
offense described in Subsection
(5)(a)
, with criminal or non-criminal findings after
the date of conviction;
(f)
has a misdemeanor charge or conviction that is no more than three years from the
date on which the office conducts the background check for an offense not described
in Subsection
(5)(a)
;
(g)
has a misdemeanor charge or conviction that is more than three years from the date
on which the office conducts the background check, for an offense not described in
Subsection
(5)(a)
, with criminal or non-criminal findings after the date of charge or
conviction;
(h)
is currently subject to a plea in abeyance or diversion agreement for an offense
described in Subsection
(5)(a)
;
(i)
appears on the Sex, Kidnap, and Child Abuse Offender Registry described in Title
53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex
offender registry;
(j)
has a record of an adjudication in juvenile court for an act that, if committed by an
adult, would be a felony or misdemeanor, if the applicant is:
(i)
under 28 years old; or
(ii)
28 years old or older and has been convicted of, has pleaded no contest to, or is
currently subject to a plea in abeyance or diversion agreement for a felony or a
misdemeanor offense described in Subsection
(5)(a)
;
(k)
has a pending charge for an offense described in Subsection
(5)(a)
;
(l)
has a supported finding that occurred no more than 15 years from the date on which
the office conducts the background check in the Division of Child and Family
Services' Licensing Information System described in Section
80-2-1002
;
(m)
has a supported finding that occurred more than 15 years from the date on which the
office conducts the background check in the Division of Child and Family Services'
Licensing Information System described in Section
80-2-1002
, with criminal or
non-criminal findings after the date of the listing;
(n)
has a listing that occurred no more than 15 years from the date on which the office
conducts the background check in the Division of Aging and Adult Services'
vulnerable adult abuse, neglect, or exploitation database described in Section
26B-6-210
;
(o)
has a listing that occurred more than 15 years from the date on which the office
conducts the background check in the Division of Aging and Adult Services'
vulnerable adult abuse, neglect, or exploitation database described in Section
26B-6-210
, with criminal or non-criminal findings after the date of the listing;
(p)
has a substantiated finding that occurred no more than 15 years from the date on
which the office conducts the background check of severe child abuse or neglect
under Section
80-3-404
or
80-3-504
; or
(q)
has a substantiated finding that occurred more than 15 years from the date on which
the office conducts the background check of severe child abuse or neglect under
Section
80-3-404
or
80-3-504
, with criminal or non-criminal findings after the date of
the listing.
(7)
(a)
The comprehensive review shall include an examination of:
(i)
the date of the offense or incident;
(ii)
the nature and seriousness of the offense or incident;
(iii)
the circumstances under which the offense or incident occurred;
(iv)
the age of the perpetrator when the offense or incident occurred;
(v)
whether the offense or incident was an isolated or repeated incident;
(vi)
whether the offense or incident directly relates to abuse of a child or vulnerable
adult, including:
(A)
actual or threatened, nonaccidental physical, mental, or financial harm;
(B)
sexual abuse;
(C)
sexual exploitation; or
(D)
negligent treatment;
(vii)
any evidence provided by the applicant of rehabilitation, counseling, psychiatric
treatment received, or additional academic or vocational schooling completed;
(viii)
the applicant's risk of harm to clientele in the program or in the capacity for
which the applicant is applying; and
(ix)
if the background check of an applicant is being conducted for the purpose of
giving direct access qualified status to an applicant seeking a position in a
congregate care program or to become a prospective foster or adoptive parent, any
listing in the Division of Child and Family Services' Management Information
System described in Section
80-2-1001
.
(b)
At the conclusion of the comprehensive review, the office shall deny direct access
qualified status to an applicant if the office finds the approval would likely create a
risk of harm to a child or vulnerable adult.
(8)
The office shall grant direct access qualified status to an applicant who is not denied
under this section.
(9)
(a)
The office may conditionally grant direct access qualified status to an applicant,
for a maximum of 60 days after the day on which the office sends written notice,
without requiring that the applicant be directly supervised, if the office:
(i)
is awaiting the results of the criminal history search of national criminal
background databases; and
(ii)
would otherwise grant direct access qualified status to the applicant under this
section.
(b)
The office may conditionally grant direct access qualified status to an applicant, for a
maximum of one year after the day on which the office sends written notice, without
requiring that the applicant be directly supervised if the office:
(i)
is awaiting the results of an out-of-state registry for providers other than foster and
adoptive parents; and
(ii)
would otherwise grant direct access qualified status to the applicant under this
section.
(c)
Upon receiving the results of the criminal history search of a national criminal
background database, the office shall grant or deny direct access qualified status to
the applicant in accordance with this section.
(10)
(a)
Each time an applicant is associated with a licensee, the department shall review
the current status of the applicant's background check to ensure the applicant is still
eligible for direct access qualified status in accordance with this section.
(b)
A licensee may not permit an individual to have direct access to a child or a
vulnerable adult without being directly supervised unless:
(i)
the individual is the parent or guardian of the child, or the guardian of the
vulnerable adult;
(ii)
the individual is approved by the parent or guardian of the child, or the guardian
of the vulnerable adult, to have direct access to the child or the vulnerable adult;
(iii)
the individual is only permitted to have direct access to a vulnerable adult who
voluntarily invites the individual to visit; or
(iv)
the individual only provides incidental care for a foster child on behalf of a foster
parent who has used reasonable and prudent judgment to select the individual to
provide the incidental care for the foster child.
(c)
Notwithstanding any other provision of this section, an applicant who is denied direct
access qualified status shall not have direct access to a child or vulnerable adult
unless the office grants direct access qualified status to the applicant through a
subsequent application in accordance with this section.
(11)
If the office denies direct access qualified status to an applicant, the applicant may
request a hearing in the department's Office of Administrative Hearings to challenge the
office's decision.
(12)
(a)
This Subsection
(12)
applies to an applicant associated with a certification,
contract, or licensee serving adults only.
(b)
A program director or a member, as defined in Section
26B-2-105
, of the licensee
shall comply with this section.
(c)
The office shall conduct a comprehensive review for an applicant if:
(i)
the applicant is seeking a position:
(A)
as a peer support provider;
(B)
as a mental health professional; or
(C)
in a program that serves only adults with a primary mental health diagnosis,
with or without a co-occurring substance use disorder; and
(ii)
within three years from the date on which the office conducts the background
check, the applicant has a felony or misdemeanor charge or conviction or a
non-criminal finding.
(13)
(a)
This Subsection
(13)
applies to an applicant seeking a position in a congregate
care program, an applicant seeking to provide a prospective foster home, an applicant
seeking to provide a prospective adoptive home, and each adult living in the home of
the prospective foster or prospective adoptive home.
(b)
As federally required, the office shall:
(i)
check the child abuse and neglect registry in each state where each applicant
resided in the five years immediately preceding the day on which the applicant
applied to be a foster or adoptive parent, to determine whether the prospective
foster or adoptive parent is listed in the registry as having a substantiated or
supported finding of child abuse or neglect; and
(ii)
except for applicants seeking a position in a congregate care program, check the
child abuse and neglect registry in each state where each adult living in the home
of the prospective foster or adoptive home resided in the five years immediately
preceding the day on which the applicant applied to be a foster or adoptive parent,
to determine whether the adult is listed in the registry as having a substantiated or
supported finding of child abuse or neglect.
(c)
The requirements described in Subsection
(13)(b)
do not apply to the extent that:
(i)
federal law or rule permits otherwise; or
(ii)
the requirements would prohibit the Division of Child and Family Services or a
court from placing a child with:
(A)
a noncustodial parent under Section
80-2a-301
,
80-3-302
, or
80-3-303
; or
(B)
a relative, other than a noncustodial parent, under Section
80-2a-301
,
80-3-302
,
or
80-3-303
, pending completion of the background check described in
Subsections
(5)
,
(6)
, and
(7)
.
(d)
Notwithstanding Subsections
(5)
through
(10)
, the office shall deny direct access
qualified status if the applicant has been convicted of:
(i)
a felony involving conduct that constitutes any of the following:
(A)
child abuse, as described in Section
76-5-109
;
(B)
aggravated child abuse, as described in Section
76-5-109.2
;
(C)
child abandonment, as described in Section
76-5-109.3
;
(D)
child torture, as described in Section
76-5-109.4
;
(E)
commission of domestic violence in the presence of a child, as described in
Section
76-5-114
;
(F)
abuse or neglect of a child with a disability, as described in Section
76-5-110
;
(G)
intentional aggravated abuse of a vulnerable adult, as described in Section
76-5-111
;
(H)
endangerment of a child or vulnerable adult, as described in Section
76-5-112.5
;
(I)
aggravated murder, as described in Section
76-5-202
;
(J)
murder, as described in Section
76-5-203
;
(K)
manslaughter, as described in Section
76-5-205
;
(L)
child abuse homicide, as described in Section
76-5-208
;
(M)
homicide by assault, as described in Section
76-5-209
;
(N)
kidnapping, as described in Section
76-5-301
;
(O)
child kidnapping, as described in Section
76-5-301.1
;
(P)
aggravated kidnapping, as described in Section
76-5-302
;
(Q)
human trafficking of a child, as described in Section
76-5-308.5
;
(R)
an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses
, other
than Section
76-5-417
,
76-5-418
, or
76-5-419
;
(S)
sexual exploitation of a minor, as described in Title 76, Chapter 5b, Sexual
Exploitation Act;
(T)
aggravated exploitation of a minor, as described in Section
76-5b-201.1
;
(U)
aggravated arson, as described in Section
76-6-103
;
(V)
aggravated burglary, as described in Section
76-6-203
;
(W)
aggravated robbery, as described in Section
76-6-302
;
(X)
incest, as described in Section
76-7-102
; or
(Y)
domestic violence, as described in Section
77-36-1
; or
(ii)
an offense committed outside the state that, if committed in the state, would
constitute a violation of an offense described in Subsection
(13)(d)(i)
.
(e)
Notwithstanding Subsections
(5)
through
(10)
, the office shall deny direct access
qualified status to an applicant if, within the five years from the date on which the
office conducts the background check, the applicant was convicted of a felony
involving conduct that constitutes a violation of any of the following:
(i)
aggravated assault, as described in Section
76-5-103
;
(ii)
aggravated assault by a prisoner, as described in Section
76-5-103.5
;
(iii)
mayhem, as described in Section
76-5-105
;
(iv)
an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
(v)
an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
(vi)
an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
Act;
(vii)
an offense described in Title 58, Chapter 37c, Utah Controlled Substance
Precursor Act; or
(viii)
an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
(f)
In addition to the circumstances described in Subsection
(6)
, the office shall conduct
a comprehensive review of an applicant's background check under this section if the
applicant:
(i)
has an offense described in Subsection
(5)(a)
;
(ii)
has an infraction conviction entered on a date that is no more than three years
before the date on which the office conducts the background check;
(iii)
has a listing in the Division of Child and Family Services' Licensing Information
System described in Section
80-2-1002
;
(iv)
has a listing in the Division of Aging and Adult Services' vulnerable adult,
neglect, or exploitation database described in Section
26B-2-210
;
(v)
has a substantiated finding of severe child abuse or neglect under Section
80-3-404
or
80-3-504
; or
(vi)
has a listing on the registry check described in Subsection
(13)(b)
as having a
substantiated or supported finding of a severe type of child abuse or neglect, as
defined in Section
80-1-102
.
(14)
In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
office may make rules, consistent with this part, to:
(a)
establish procedures for, and information to be examined in, the comprehensive
review described in Subsections
(6)
,
(7)
, and
(13)
; and
(b)
determine whether to consider an offense or incident that occurred while an
individual was in the custody of the Division of Child and Family Services or the
Division of Juvenile Justice and Youth Services for purposes of granting or denying
direct access qualified status to an applicant.
Section 3. Section
26B-4-501
is amended to read:
26B-4-501
. Definitions.
As used in this part:
(1)
"Controlled substance" means the same as that term is defined in Title 58, Chapter 37,
Utah Controlled Substances Act.
(2)
"Critical access hospital" means a critical access hospital that meets the criteria of 42
U.S.C. Sec. 1395i-4(c)(2).
(3)
"Designated facility" means:
(a)
a freestanding urgent care center;
(b)
a general acute hospital; or
(c)
a critical access hospital.
(4)
"Dispense" means the same as that term is defined in Section
58-17b-102
.
(5)
"Division" means the Division of Professional Licensing created in Section
58-1-103
.
(6)
"Emergency contraception" means the use of a substance, approved by the United States
Food and Drug Administration, to prevent pregnancy after sexual intercourse.
(7)
"Freestanding urgent care center" means the same as that term is defined in Section
59-12-801
.
(8)
"General acute hospital" means the same as that term is defined in Section
26B-2-201
.
(9)
"Health care facility" means a hospital, a hospice inpatient residence, a nursing facility,
a dialysis treatment facility, an assisted living residence, an entity that provides home-
and community-based services, a hospice or home health care agency, or another facility
that provides or contracts to provide health care services, which facility is licensed under
Chapter 2, Part 2, Health Care Facility Licensing and Inspection.
(10)
"Health care provider" means:
(a)
a physician, as defined in Section
58-67-102
;
(b)
an advanced practice registered nurse, as defined in Section
58-31b-102
;
(c)
a physician assistant, as defined in Section
58-70a-102
; or
(d)
an individual licensed to engage in the practice of dentistry, as defined in Section
58-69-102
.
(11)
"Increased risk" means risk exceeding the risk typically experienced by an individual
who is not using, and is not likely to use, an opiate.
(12)
"Opiate" means the same as that term is defined in Section
58-37-2
.
(13)
"Opiate antagonist" means naloxone hydrochloride or any similarly acting drug that is
not a controlled substance and that is approved by the federal Food and Drug
Administration for the diagnosis or treatment of an opiate-related drug overdose.
(14)
"Opiate-related drug overdose event" means an acute condition, including a decreased
level of consciousness or respiratory depression resulting from the consumption or use
of a controlled substance, or another substance with which a controlled substance was
combined, and that a person would reasonably believe to require medical assistance.
(15)
"Overdose outreach provider" means:
(a)
a law enforcement agency;
(b)
a fire department;
(c)
an emergency medical service provider, as defined in Section
53-2d-101
;
(d)
emergency medical service personnel, as defined in Section
53-2d-101
;
(e)
an organization providing treatment or recovery services for drug or alcohol use;
(f)
an organization providing support services for an individual, or a family of an
individual, with a substance use disorder;
(g)
a certified peer support specialist, as defined in Section
26B-5-610
;
(h)
an organization providing substance use or mental health services under contract
with a local substance abuse authority, as defined in Section
26B-5-101
, or a local
mental health authority, as defined in Section
26B-5-101
;
(i)
an organization providing services to the homeless;
(j)
a local health department;
(k)
an individual licensed to practice under:
(i)
Title 58, Chapter 17b, Pharmacy Practice Act;
(ii)
Title 58, Chapter 60, Part 2, Social Worker Licensing Act; or
(iii)
Title 58, Chapter 60, Part 5, Substance Use Disorder Counselor Act; or
(l)
an individual.
(16)
"Patient counseling" means the same as that term is defined in Section
58-17b-102
.
(17)
"Pharmacist" means the same as that term is defined in Section
58-17b-102
.
(18)
"Pharmacy intern" means the same as that term is defined in Section
58-17b-102
.
(19)
"Physician" means the same as that term is defined in Section
58-67-102
.
(20)
"Practitioner" means:
(a)
a physician; or
(b)
any other person who is permitted by law to prescribe emergency contraception.
(21)
"Prescribe" means the same as that term is defined in Section
58-17b-102
.
(22)
(a)
"Self-administered hormonal contraceptive" means a self-administered hormonal
contraceptive that is approved by the United States Food and Drug Administration to
prevent pregnancy.
(b)
"Self-administered hormonal contraceptive" includes an oral hormonal contraceptive,
a hormonal vaginal ring, and a hormonal contraceptive patch.
(c)
"Self-administered hormonal contraceptive" does not include any drug intended to
induce an abortion, as that term is defined in Section
76-7-301
.
(23)
(a)
"Sexual assault" means any criminal conduct described in Title 76, Chapter 5,
Part 4, Sexual Offenses, that may result in a pregnancy.
(b)
"Sexual assault" does not include criminal conduct described in:
(i)
Section
76-5-417
, enticing a minor;
(ii)
Section
76-5-418
, sexual battery;
(iii)
Section
76-5-419
, lewdness; or
(iv)
Section
76-5-420
, lewdness involving a child.
(24)
"Victim of sexual assault" means any person who presents to receive, or receives,
medical care in consequence of being subjected to sexual assault.
Section 4. Section
31A-21-501
is amended to read:
31A-21-501
. Definitions.
For purposes of
As used in
this part:
(1)
"Applicant" means:
(a)
in the case of an individual life or accident and health policy, the person who seeks to
contract for insurance benefits; or
(b)
in the case of a group life or accident and health policy, the proposed certificate
holder.
(2)
"Cohabitant" means an emancipated individual pursuant to Section
15-2-1
or an
individual who is 16 years old or older who:
(a)
is or was a spouse of the other party;
(b)
is or was living as if a spouse of the other party;
(c)
is related by blood or marriage to the other party;
(d)
has one or more children in common with the other party; or
(e)
resides or has resided in the same residence as the other party.
(3)
(a)
"Child abuse" means the commission or attempt to commit against a child a
criminal offense described in:
(i)
(a)
Title 76, Chapter 5, Part 1, Assault and Related Offenses
; or
(ii)
(b)
Title 76, Chapter 5, Part 4, Sexual Offenses
.
(b)
"Child abuse" does not include the criminal offense of enticing a minor, as
described in Section
76-5-417
.
(4)
(a)
"Domestic violence" means any criminal offense involving violence or physical
harm or threat of violence or physical harm, or any attempt, conspiracy, or
solicitation to commit a criminal offense involving violence or physical harm, when
committed by one cohabitant against another and includes commission or attempt to
commit, any of the following offenses by one cohabitant against another:
(i)
(a)
aggravated assault, as described in Section
76-5-103
;
(ii)
(b)
assault, as described in Section
76-5-102
;
(iii)
(c)
criminal homicide, as described in Section
76-5-201
;
(iv)
(d)
harassment, as described in Section
76-5-106
;
(v)
(e)
electronic communication harassment, as described in Section
76-12-202
,
76-12-203
, or
76-12-204
;
(vi)
(f)
kidnapping, child kidnapping, or aggravated kidnapping, as described in
Sections
76-5-301
,
76-5-301.1
, and
76-5-302
;
(vii)
(g)
mayhem, as described in Section
76-5-105
;
(viii)
(h)
sexual offenses, as described in Sections
76-5b-201
and
76-5b-201.1
and in
Title 76, Chapter 5, Part 4, Sexual Offenses
;
(ix)
(i)
stalking, as described in Section
76-5-106.5
;
(x)
(j)
unlawful detention or unlawful detention of a minor, as described in Section
76-5-304
;
(xi)
(k)
violation of a protective order or ex parte protective order, as described in
Section
76-5-108
;
(xii)
(l)
any offense against property described in
Title 76, Chapter 6, Part 1, Property
Destruction
,
Part 2, Burglary and Criminal Trespass
, or
Part 3, Robbery
;
(xiii)
(m)
possession of a dangerous weapon with criminal intent, as described in
Section
76-11-208
; or
(xiv)
(n)
discharge of a firearm from a vehicle, near a highway, or in the direction of
any individual, building, or vehicle, as described in Section
76-11-209
.
(b)
"Domestic violence" does not include the criminal offense of:
(i)
enticing a minor, as described in Section
76-5-417
;
(ii)
sexual battery, as described in Section
76-5-418
;
(iii)
lewdness, as described in Section
76-5-419
; or
(iv)
lewdness involving a child, as described in Section
76-5-420
.
(5)
"Subject of domestic abuse" means an individual who is, has been, may currently be, or
may have been subject to domestic violence or child abuse.
Section 5. Section
34-52-201
is amended to read:
34-52-201
. Public employer requirements.
(1)
Except as provided in Subsections
(3)
and
(6)
, a public employer may not:
(a)
exclude an applicant from an initial interview because of:
(i)
a past criminal conviction, an expunged conviction, an arrest for an offense that
occurred before the applicant was 18 years old, or a juvenile adjudication; or
(ii)
if the applicant is a mental health professional applicant, an arrest for an offense
that occurred before the applicant was 18 years old;
(b)
make an inquiry related to an applicant's expunged criminal or juvenile delinquency
history;
(c)
when making a hiring decision regarding a mental health professional applicant,
consider:
(i)
an arrest for an offense that occurred before the mental health professional
applicant was 18 years old;
(ii)
an arrest not followed by a criminal conviction or juvenile adjudication;
(iii)
a juvenile adjudication; or
(iv)
a past criminal conviction if:
(A)
the sentence for the criminal conviction is terminated; and
(B)
the mental health professional applicant was not incarcerated for the past
criminal conviction or the mental health professional applicant's incarceration
for the past criminal conviction ended at least three years before the day on
which the mental health professional applicant applied for employment; or
(d)
deny a mental health professional applicant employment based on a past criminal
conviction that does not bear a direct relationship to the mental health professional
applicant's ability to safely or competently perform the duties of employment.
(2)
A public employer excludes an applicant from an initial interview under Subsection
(1)

if the public employer:
(a)
requires an applicant to disclose a criminal conviction or juvenile adjudication:
(i)
on an employment application;
(ii)
before an initial interview; or
(iii)
if no interview is conducted, before making a conditional offer of employment; or
(b)
requires an applicant who is a mental health professional applicant to disclose an
arrest for an offense that occurred before the applicant was 18 years old:
(i)
on an employment application;
(ii)
before an initial interview; or
(iii)
if no interview is conducted, before making a conditional offer of employment.
(3)
A public employer may not deny a mental health professional applicant employment
that requires the mental health professional applicant to provide substance use treatment
based on:
(a)
the mental health professional applicant's participation in substance use treatment; or
(b)
a past criminal conviction for a nonviolent drug offense if:
(i)
the sentence for the criminal conviction is terminated; and
(ii)
(A)
the mental health professional applicant was not incarcerated for the past
criminal conviction; or
(B)
the mental health professional applicant's incarceration for the past criminal
conviction ended at least three years before the day on which the mental health
professional applicant applied for employment.
(4)
An applicant seeking employment from a public employer may answer a question
related to an expunged criminal or juvenile delinquency record as though the action
underlying the expunged criminal or juvenile delinquency record never occurred.
(5)
Except as provided in Subsections
(1)
through
(3)
, this section does not prevent a public
employer from:
(a)
asking an applicant for information about an applicant's criminal conviction or
juvenile delinquency history during an initial interview or after an initial interview; or
(b)
considering an applicant's criminal conviction or juvenile delinquency history when
making a hiring decision.
(6)
(a)
Subsections
(1)
through
(4)
do not apply:
(i)
if federal, state, or local law, including corresponding administrative rules,
requires the consideration of an applicant's criminal conviction, an expunged
conviction, an arrest for an offense that occurred before the applicant was 18 years
old, or juvenile delinquency history;
(ii)
to a public employer that is a law enforcement agency;
(iii)
to a public employer that is part of the criminal or juvenile justice system;
(iv)
to a public employer seeking a nonemployee volunteer;
(v)
to a public employer that works with children or vulnerable adults;
(vi)
to the Department of Alcoholic Beverage Services created in Section
32B-2-203
;
(vii)
to the State Tax Commission;
(viii)
to a public employer whose primary purpose is performing financial or
fiduciary functions; or
(ix)
to a public transit district hiring or promoting an individual for a safety sensitive
position described in Section
17B-2a-825
.
(b)
Subsections
(1)(c)(iv)
and
(1)(d)
do not apply to a criminal conviction for:
(i)
a violent felony as defined in Section
76-3-203.5
; or
(ii)
a felony related to a criminal sexual act under:
(A)
Title 76, Chapter 5, Part 4, Sexual Offenses
, other than Section
76-5-417
,
76-5-419
, or
76-5-420
; or
(B)
Title 76, Chapter 5b, Sexual Exploitation Act
.
(c)
Subsections
(1)(a)(ii)
,
(1)(c)
,
(1)(d)
, and
(3)
apply to a person under contract with a
public employer.
Section 6. Section
34A-5-114
is amended to read:
34A-5-114
. Limitations on enforceability of nondisclosure and
non-disparagement clauses -- Retaliation prohibited.
(1)
As used in this section:
(a)
"Confidentiality clause" means a nondisclosure clause or a non-disparagement clause.
(b)
"Employee" means a current or a former employee.
(c)
"Nondisclosure clause" means an agreement between an employee and employer that
prevents, or has the effect of preventing, an employee from disclosing or discussing:
(i)
sexual assault;
(ii)
allegations of sexual assault;
(iii)
sexual harassment; or
(iv)
allegations of sexual harassment.
(d)
"Non-disparagement clause" means an agreement between an employee and
employer that prohibits, or has the effect of prohibiting, an employee from making a
negative statement that is:
(i)
about the employer; and
(ii)
related to:
(A)
a claim of sexual assault or sexual harassment;
(B)
a sexual assault dispute; or
(C)
a sexual harassment dispute.
(e)
"Post-employment restrictive covenant" means the same as that term is defined in
Section
34-51-102
.
(f)
"Proprietary information" means an employer's business plan or customer
information.
(g)
"Retaliate" means taking an adverse action against an employee because the
employee made an allegation of sexual harassment or assault, including:
(i)
discharge;
(ii)
suspension;
(iii)
demotion; or
(iv)
discrimination in the terms, conditions, or privileges of employment.
(h)
(i)
"Sexual assault" means:
(A)
(i)
conduct that would constitute a violation of 18 U.S.C. Secs. 2241 through
2244; or
(B)
(ii)
criminal conduct described in Title 76, Chapter 5, Part 4, Sexual Offenses.
(ii)
"Sexual assault" does not include criminal conduct described in:
(A)
Section
76-5-417
, enticing a minor;
(B)
Section
76-5-418
, sexual battery;
(C)
Section
76-5-419
, lewdness; or
(D)
Section
76-5-420
, lewdness involving a child.
(i)
"Sexual assault dispute" means a dispute between an employer and the employer's
employee relating to alleged sexual assault.
(j)
"Sexual harassment" means harassment on the basis of sex, sexual orientation, or
gender, as prohibited in:
(i)
Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq.; or
(ii)
Subsection
34A-5-106(1)(a)(i)
.
(k)
"Sexual harassment dispute" means a dispute between an employer and the
employer's employee relating to alleged sexual harassment.
(2)
(a)
A confidentiality clause regarding sexual misconduct, as a condition of
employment, is against public policy and is void and unenforceable.
(b)
After an employee makes an allegation of sexual harassment or sexual assault, an
employer of any sized business, regardless of Subsection
34-5-102(1)(i)(D)
:
(i)
may not retaliate against the employee because the employee made an allegation
of sexual harassment or assault; or
(ii)
may not retaliate based on an employee's refusal to enter into a confidentiality
clause or an employment contract that, as a condition of employment, contains a
confidentiality clause.
(c)
An employee may, within three business days after the day on which the employee
agrees to a settlement agreement that includes a confidentiality clause regarding
sexual misconduct, withdraw from the settlement agreement.
(3)
An employer who attempts to enforce a confidentiality clause in violation of this section:
(a)
is liable for all costs, including reasonable attorney fees, resulting from legal action
to enforce the confidentiality clause; and
(b)
is not entitled to monetary damages resulting from a breach of a confidentiality
clause.
(4)
This section does not:
(a)
prohibit an agreement between an employee who alleges sexual assault or sexual
harassment and an employer from containing a nondisclosure clause, a
non-disparagement clause, or any other clause prohibiting disclosure of:
(i)
the amount of a monetary settlement; or
(ii)
at the request of the employee, facts that could reasonably lead to the
identification of the employee;
(b)
prohibit an employer from requiring an employee to:
(i)
sign a post-employment restrictive covenant; or
(ii)
agree not to disclose an employer's non-public trade secrets, proprietary
information, or confidential information that does not involve illegal acts;
(c)
authorize an employee to:
(i)
disclose data otherwise protected by law or legal privilege; or
(ii)
knowingly make statements or disclosures that are false or made with reckless
disregard of the truth;
(d)
prohibit an employee from discussing sexual misconduct or allegations of sexual
misconduct in a civil or criminal case when subpoenaed if the sexual misconduct or
allegations of sexual misconduct are against the individual whom the employee
alleged engaged in sexual misconduct;
(e)
permit a disclosure that would violate state or federal law; or
(f)
limit other grounds that may exist at law or in equity for the unenforceability of a
confidentiality clause.
Section 7. Section
53-10-801
is amended to read:
53-10-801
. Definitions.
For purposes of
As used in
this part:
(1)
"Alleged sexual offender" means an individual or a minor regarding whom an
indictment, petition, or an information has been filed or an arrest has been made alleging
the commission of a sexual offense or an attempted sexual offense and regarding which:
(a)
a judge has signed an accompanying arrest warrant, pickup order, or any other order
based upon probable cause regarding the alleged offense; and
(b)
the judge has found probable cause to believe that the alleged victim has been
exposed to conduct or activities that may result in an HIV infection as a result of the
alleged offense.
(2)
"Department of Health and Human Services" means the Department of Health and
Human Services created in Section
26B-1-201
.
(3)
"HIV infection" means an indication of Human Immunodeficiency Virus (HIV)
infection determined by current medical standards and detected by any of the following:
(a)
presence of antibodies to HIV, verified by a positive "confirmatory" test, such as
Western blot or other method approved by the Utah State Health Laboratory.
Western blot interpretation will be based on criteria currently recommended by the
Association of State and Territorial Public Health Laboratory Directors;
(b)
presence of HIV antigen;
(c)
isolation of HIV; or
(d)
demonstration of HIV proviral DNA.
(4)
"HIV positive individual" means an individual who is HIV positive as determined by
the State Health Laboratory.
(5)
"Local department of health" means a local health department as defined in Section
26A-1-102
.
(6)
"Minor" means an individual younger than 18 years old.
(7)
"Positive" means an indication of the HIV infection as defined in Subsection
(3)
.
(8)
(a)
"Sexual offense" means a violation of any offense under
Title 76, Chapter 5, Part
4, Sexual Offenses
.
(b)
"Sexual offense" does not include a violation of Section
76-5-417
,
or

76-5-418
,
76-5-419
, or
76-5-420
.
(9)
"Test" or "testing" means a test or tests for HIV infection conducted by and in
accordance with standards recommended by the Department of Health and Human
Services.
Section 8. Section
53G-8-201
is amended to read:
53G-8-201
. Definitions.
As used in this part:
(1)
"Serious offense" means the same as that term is defined in Section
80-6-103
.
(1)
(2)
(a)
"Sexual crime" or "sexual misconduct" means any conduct described in:
(i)
(a)
Title 76, Chapter 5, Part 4, Sexual Offenses;
(ii)
(b)
Title 76, Chapter 5b, Sexual Exploitation Act; or
(iii)
(c)
Section
76-7-102
,
incest
Incest
.
(b)
"Sexual crime" or "sexual misconduct" does not include conduct described in:
(i)
Section
76-5-417
, enticing a minor;
(ii)
Section
76-5-420
, lewdness involving a child; or
(iii)
Section
76-5b-206
, failure to report child sexual abuse material by a computer
technician.
(2)
"Serious offense" means the same as that term is defined in Section
80-6-103
.
Section 9. Section
57-22-5.1
is amended to read:
57-22-5.1
. Crime victim's right to new locks -- Domestic violence victim's right
to terminate rental agreement -- Limits an owner relating to assistance from public
safety agency.
(1)
As used in this section:
(a)
(i)
"Court order" means, except as provided in Subsection
(1)(a)(ii)
:
(A)
a civil protective order, as defined in Section
78B-7-102
;
(B)
a civil stalking injunction, as defined in Section
78B-7-102
;
(C)
a criminal protective order, as defined in Section
78B-7-102
; or
(D)
a criminal stalking injunction, as defined in Section
78B-7-102
.
(ii)
"Court order" does not include:
(A)
an ex parte civil protective order, as defined in Section
78B-7-102
; or
(B)
an ex parte civil stalking injunction, as defined in Section
78B-7-102
, for
which a hearing is requested.
(b)
(i)
"Crime victim" means a victim of:
(A)
(i)
domestic violence, as defined in Section
77-36-1
;
(B)
(ii)
stalking, as defined in Section
76-5-106.5
;
(C)
(iii)
an offense under
Title 76, Chapter 5, Part 4, Sexual Offenses
;
(D)
(iv)
burglary or aggravated burglary under Section
76-6-202
or
76-6-203
; or
(E)
(v)
dating violence, as defined in Section
78B-7-102
.
(ii)
"Crime victim" does not include a victim of an offense of:
(A)
enticing a minor under Section
76-5-417
;
(B)
sexual battery under Section
76-5-418
;
(C)
lewdness under Section
76-5-419
; or
(D)
lewdness involving a child under Section
76-5-420
.
(c)
"Domestic violence" means the same as that term is defined in Section
77-36-1
.
(d)
"Financial obligation" means any rent, fees, damages, or other costs owed by a renter.
(e)
(i)
"Future obligations" means a renter's obligations under the rental agreement
after the date on which the renter vacates the residential rental unit in accordance
with Subsection
(6)
.
(ii)
"Future obligations" includes:
(A)
the payment of rent and fees for the residential rental unit; and
(B)
the right to occupy the residential rental unit.
(f)
"Public safety agency" means a governmental entity that provides fire protection, law
enforcement, ambulance, medical, or similar service.
(g)
"Victim of domestic violence" means the same as the term "victim" in Section
77-36-1
.
(h)
"Termination fee" means the equivalent of one month of rent under the rental
agreement.
(2)
An acceptable form of documentation of an act listed in Subsection
(1)
is:
(a)
a protective order protecting the renter issued pursuant to
Title 78B, Chapter 7, Part
6, Cohabitant Abuse Protective Orders
, subsequent to a hearing of which the
petitioner and respondent have been given notice under
Title 78B, Chapter 7, Part 6,
Cohabitant Abuse Protective Orders
; or
(b)
a copy of a police report documenting an act listed in Subsection
(1)
.
(3)
(a)
A renter who is a crime victim may require the renter's owner to install a new lock
to the renter's residential rental unit if the renter:
(i)
provides the owner with an acceptable form of documentation of an act listed in
Subsection
(1)
; and
(ii)
pays for the cost of installing the new lock.
(b)
An owner may comply with Subsection
(3)(a)
by:
(i)
rekeying the lock if the lock is in good working condition; or
(ii)
changing the entire locking mechanism with a locking mechanism of equal or
greater quality than the lock being replaced.
(c)
An owner who installs a new lock under Subsection
(3)(a)
may retain a copy of the
key that opens the new lock.
(d)
Notwithstanding any rental agreement, an owner who installs a new lock under
Subsection
(3)(a)
shall refuse to provide a copy of the key that opens the new lock to
the perpetrator of the act listed in Subsection
(1)
.
(e)
Notwithstanding Section
78B-6-814
, if an owner refuses to provide a copy of the key
under Subsection
(3)(d)
to a perpetrator who is not barred from the residential rental
unit by a protective order but is a renter on the rental agreement, the perpetrator may
file a petition with a court of competent jurisdiction within 30 days to:
(i)
establish whether the perpetrator should be given a key and allowed access to the
residential rental unit; or
(ii)
establish
whether the perpetrator should be relieved of further liability under the
rental agreement because of the owner's exclusion of the perpetrator from the
residential rental unit.
(f)
Notwithstanding Subsection
(3)(e)(ii)
, a perpetrator may not be relieved of further
liability under the rental agreement if the perpetrator is found by the court to have
committed the act upon which the landlord's exclusion of the perpetrator is based.
(4)
A renter who is a victim of domestic violence may terminate all of the renter's future
obligations under a rental agreement if the renter:
(a)
except as provided in Subsection
(5)
, is in compliance with all obligations under the
rental agreement, including the requirements of Section
57-22-5
;
(b)
provides the owner with:
(i)
a court order protecting the renter from a domestic violence perpetrator; or
(ii)
a copy of a police report documenting that the renter is a victim of domestic
violence and is not the predominant aggressor under Subsection
77-36-2.2(3)
;
(c)
provides the owner with a written notice of termination that includes the date on
which the renter intends to vacate the renter's residential rental unit; and
(d)
pays the owner a termination fee on the later of the day on which:
(i)
the renter provides the owner with a written notice of termination; or
(ii)
the renter vacates the renter's residential rental unit.
(5)
A renter may terminate all of the renter's future obligations under a rental agreement
under Subsection
(4)
when the renter is not in compliance with the requirements of
Subsection
57-22-5(1)(g)
or
(2)
if:
(a)
the renter provides evidence to the owner with the written notice of termination
under Subsection
(4)(c)
establishing that:
(i)
the noncompliance with Subsection
57-22-5(1)(g)
or
(2)
occurred less than 30
days before the day on which the renter provided the written notice of termination
to the owner; and
(ii)
the noncompliance with Subsection
57-22-5(1)(g)
or
(2)
is due to domestic
violence;
(b)
the renter is in compliance with all obligations of the rental agreement, except for the
noncompliance described in Subsection
(5)(a)
; and
(c)
the renter complies with Subsections
(4)(b)
,
(c)
, and
(d)
.
(6)
If a renter provides an owner with a written notice of termination under Subsection
(4)(c)
, the renter shall:
(a)
vacate the renter's residential rental unit within 15 days after the day on which the
written notice of termination is provided to the owner; and
(b)
pay rent for any occupation of the residential rental unit during that 15-day time
period.
(7)
A renter may not terminate all of the renter's future obligations under a rental agreement
under Subsection
(4)
after a notice of eviction is served on the renter.
(8)
A renter who terminates all of the renter's future obligations under a rental agreement
under Subsection
(4)
is liable for any financial obligation owed by the renter:
(a)
before the renter provided the owner with the written notice of termination under
Subsection
(4)(c)
;
(b)
for any noncompliance with Subsection
57-22-5(1)(g)
or
(2)
as described in
Subsection
(5)
; and
(c)
for any occupancy of the residential rental unit by the renter during the 15-day time
period described in Subsection
(6)
.
(9)
The termination of a renter's future obligations under a rental agreement does not
terminate the rental agreement for any other person entitled under the rental agreement
to occupy the residential rental unit.
(10)
An owner may not:
(a)
impose a restriction on a renter's ability to request assistance from a public safety
agency; or
(b)
penalize or evict a renter because the renter makes reasonable requests for assistance
from a public safety agency.
Section 10. Section
59-27-105
is amended to read:
59-27-105
. Sexually Explicit Business and Escort Service Fund -- Administrative
charge.
(1)
There is created an expendable special revenue fund called the "Sexually Explicit
Business and Escort Service Fund."
(2)
(a)
Except as provided in Subsection
(3)
, the fund consists of all amounts collected by
the commission under this chapter.
(b)
(i)
The money in the fund shall be invested by the state treasurer pursuant to
Title
51, Chapter 7, State Money Management Act
.
(ii)
All interest or other earnings derived from the fund money shall be deposited in
the fund.
(3)
Notwithstanding any other provision of this chapter, the commission shall retain and
deposit an administrative charge in accordance with Section
59-1-306
from the revenues
the commission collects from a tax under this chapter.
(4)
(a)
Fund money shall be used as provided in this Subsection
(4)
.
(b)
The Department of Corrections shall use 60% of the money in the fund, in addition
to existing budgets, to provide treatment services to nonworking or indigent adults
who:
(i)
have been convicted of an offense under
Title 76, Chapter 5, Part 4, Sexual
Offenses
, other than Section
76-5-417
,
76-5-418
,
76-5-419
, or
76-5-420
; and
(ii)
are not currently confined or incarcerated in a jail or prison.
(c)
The Division of Adult Probation and Parole created in Section
64-14-202
shall use
15% of the money in the fund to provide outpatient treatment services to individuals
who:
(i)
have been convicted of an offense under
Title 76, Chapter 5, Part 4, Sexual
Offenses
, other than Section
76-5-417
,
76-5-418
,
76-5-419
, or
76-5-420
; and
(ii)
are not currently confined or incarcerated in a jail or prison.
(d)
The Department of Corrections shall use 10% of the money in the fund, in addition
to existing budgets, to implement treatment programs for juveniles who have been
convicted of an offense under
Title 76, Chapter 5, Part 4, Sexual Offenses
, other
than Section
76-5-417
,
76-5-418
,
76-5-419
, or
76-5-420
.
(e)
The attorney general shall use 15% of the money in the fund to provide funding for
any task force:
(i)
administered through the Office of the Attorney General; and
(ii)
that investigates and prosecutes individuals who use the Internet to commit
crimes against children.
Section 11. Section
63M-7-502
is amended to read:
63M-7-502
. Definitions.
As used in this part:
(1)
"Accomplice" means an individual who has engaged in criminal conduct as described in
Section
76-2-202
.
(2)
"Advocacy services provider" means the same as that term is defined in Section
77-38-403
.
(3)
"Bodily injury" means physical pain, illness, or any impairment of physical condition.
(4)
"Claimant" means any of the following claiming reparations under this part:
(a)
a victim;
(b)
a dependent of a deceased victim; or
(c)
an individual or representative who files a reparations claim on behalf of a victim.
(5)
"Child" means an unemancipated individual who is under 18 years old.
(6)
"Collateral source" means any source of benefits or advantages for economic loss
otherwise reparable under this part that the claimant has received, or that is readily
available to the claimant from:
(a)
the offender;
(b)
the insurance of the offender or the victim;
(c)
the United States government or any of its agencies, a state or any of its political
subdivisions, or an instrumentality of two or more states, except in the case on
nonobligatory state-funded programs;
(d)
social security, Medicare, and Medicaid;
(e)
state-required temporary nonoccupational income replacement insurance or disability
income insurance;
(f)
workers' compensation;
(g)
wage continuation programs of any employer;
(h)
proceeds of a contract of insurance payable to the claimant for the loss the claimant
sustained because of the criminally injurious conduct;
(i)
a contract providing prepaid hospital and other health care services or benefits for
disability; or
(j)
veteran's benefits, including veteran's hospitalization benefits.
(7)
(a)
"Confidential record" means a record in the custody of the office that relates to a
claimant's eligibility for a reparations award.
(b)
"Confidential record" includes:
(i)
a reparations claim;
(ii)
any correspondence regarding:
(A)
the approval or denial of a reparations claim; or
(B)
the payment of a reparations award;
(iii)
a document submitted to the office in support of a reparations award;
(iv)
a medical or mental health treatment plan; and
(v)
an investigative report provided to the office by a law enforcement agency.
(8)
"Criminal justice system victim advocate" means the same as that term is defined in
Section
77-38-403
.
(9)
(a)
"Criminally injurious conduct" other than acts of war declared or not declared
means conduct that:
(i)
is or would be subject to prosecution in this state under Section
76-1-201
;
(ii)
occurs or is attempted;
(iii)
causes, or poses a substantial threat of causing, bodily injury or death;
(iv)
is punishable by fine, imprisonment, or death if the individual engaging in the
conduct possessed the capacity to commit the conduct; and
(v)
does not arise out of the ownership, maintenance, or use of a motor vehicle,
aircraft, or water craft, unless the conduct is:
(A)
intended to cause bodily injury or death;
(B)
punishable under Title
76, Chapter 5
, Offenses Against the Individual; or
(C)
chargeable as an offense for driving under the influence of alcohol or drugs.
(b)
"Criminally injurious conduct" includes a felony violation of Section
76-7-101
and
other conduct leading to the psychological injury of an individual resulting from
living in a setting that involves a bigamous relationship.
(10)
(a)
"Dependent" means a natural person to whom the victim is wholly or partially
legally responsible for care or support.
(b)
"Dependent" includes a child of the victim born after the victim's death.
(11)
"Dependent's economic loss" means loss after the victim's death of contributions of
things of economic value to the victim's dependent, not including services the dependent
would have received from the victim if the victim had not suffered the fatal injury, less
expenses of the dependent avoided by reason of victim's death.
(12)
"Dependent's replacement services loss" means loss reasonably and necessarily
incurred by the dependent after the victim's death in obtaining services in lieu of those
the decedent would have performed for the victim's benefit if the victim had not suffered
the fatal injury, less expenses of the dependent avoided by reason of the victim's death
and not subtracted in calculating the dependent's economic loss.
(13)
"Director" means the director of the office.
(14)
"Disposition" means the sentencing or determination of penalty or punishment to be
imposed upon an individual:
(a)
convicted of a crime;
(b)
found delinquent; or
(c)
against whom a finding of sufficient facts for conviction or finding of delinquency is
made.
(15)
(a)
"Economic loss" means economic detriment consisting only of allowable
expense, work loss, replacement services loss, and if injury causes death, dependent's
economic loss and dependent's replacement service loss.
(b)
"Economic loss" includes economic detriment even if caused by pain and suffering
or physical impairment.
(c)
"Economic loss" does not include noneconomic detriment.
(16)
"Elderly victim" means an individual who is 60 years old or older and who is a victim.
(17)
"Fraudulent claim" means a filed reparations based on material misrepresentation of
fact and intended to deceive the reparations staff for the purpose of obtaining reparation
funds for which the claimant is not eligible.
(18)
"Fund" means the Crime Victim Reparations Fund created in Section
63M-7-526
.
(19)
(a)
"Interpersonal violence" means an act involving violence, physical harm, or a
threat of violence or physical harm, that is committed by an individual who is or has
been in a domestic, dating, sexual, or intimate relationship with the victim.
(b)
"Interpersonal violence" includes any attempt, conspiracy, or solicitation of an act
described in Subsection
(19)(a)
.
(20)
"Law enforcement agency" means a public or private agency having general police
power and charged with making arrests in connection with enforcement of the criminal
statutes and ordinances of this state or any political subdivision of this state.
(21)
"Law enforcement officer" means the same as that term is defined in Section
53-13-103
.
(22)
(a)
"Medical examination" means a physical examination necessary to document
criminally injurious conduct.
(b)
"Medical examination" does not include mental health evaluations for the
prosecution and investigation of a crime.
(23)
"Mental health counseling" means outpatient and inpatient counseling necessitated as a
result of criminally injurious conduct, is subject to rules made by the office in
accordance with Title
63G, Chapter 3
, Utah Administrative Rulemaking Act.
(24)
"Misconduct" means conduct by the victim that was attributable to the injury or death
of the victim as provided by rules made by the office in accordance with Title
63G,
Chapter 3
, Utah Administrative Rulemaking Act.
(25)
"Noneconomic detriment" means pain, suffering, inconvenience, physical impairment,
and other nonpecuniary damage, except as provided in this part.
(26)
"Nongovernment organization victim advocate" means the same as that term is defined
in Section
77-38-403
.
(27)
"Nonpublic restitution record" means a restitution record that contains a claimant's
medical or mental health information.
(28)
"Pecuniary loss" does not include loss attributable to pain and suffering except as
otherwise provided in this part.
(29)
"Offender" means an individual who has violated Title
76, Utah Criminal Code
,
through criminally injurious conduct regardless of whether the individual is arrested,
prosecuted, or convicted.
(30)
"Offense" means a violation of Title
76, Utah Criminal Code
.
(31)
"Office" means the director, the reparations and assistance officers, and any other staff
employed for the purpose of carrying out the provisions of this part.
(32)
"Perpetrator" means the individual who actually participated in the criminally injurious
conduct.
(33)
"Public restitution record" means a restitution record that does not contain a claimant's
medical or mental health information.
(34)
(a)
"Rape crisis and services center" means a nonprofit entity that assists victims of
sexual assault and victims' families by offering sexual assault crisis intervention and
counseling through a sexual assault counselor.
(b)
"Rape crisis and services center" does not include a qualified institutional victim
services provider as defined in Section
53H-14-401
.
(35)
"Reparations award" means money or other benefits provided to a claimant or to
another on behalf of a claimant after the day on which a reparations claim is approved
by the office.
(36)
"Reparations claim" means a claimant's request or application made to the office for a
reparations award.
(37)
(a)
"Reparations officer" means an individual employed by the office to investigate
a claimant's request for reparations and award reparations under this part.
(b)
"Reparations officer" includes the director when the director is acting as a
reparations officer.
(38)
"Replacement service loss" means expenses reasonably and necessarily incurred in
obtaining ordinary and necessary services in lieu of those the injured individual would
have performed, not for income but the benefit of the injured individual or the injured
individual's dependents if the injured individual had not been injured.
(39)
(a)
"Representative" means the victim, immediate family member, legal guardian,
attorney, conservator, executor, or an heir of an individual.
(b)
"Representative" does not include a service provider or collateral source.
(40)
"Restitution" means the same as that term is defined in Section
77-38b-102
.
(41)
(a)
"Restitution record" means a record documenting payments made to, or on
behalf of, a claimant by the office that the office relies on to support a restitution
request made in accordance with Section
77-38b-205
.
(b)
"Restitution record" includes:
(i)
a notice of restitution;
(ii)
an itemized list of payments;
(iii)
an invoice, receipt, or bill submitted to the office for reimbursement; and
(iv)
any documentation that the office relies on to establish a nexus between an
offender's criminally injurious conduct and a reparations award made by the office.
(42)
"Secondary victim" means an individual who is traumatically affected by the
criminally injurious conduct subject to rules made by the office in accordance with Title
63G, Chapter 3
, Utah Administrative Rulemaking Act.
(43)
"Service provider" means an individual or agency who provides a service to a claimant
for a monetary fee, except attorneys as provided in Section
63M-7-524
.
(44)
"Serious bodily injury" means the same as that term is defined in Section
76-1-101.5
.
(45)
(a)
"Sexual assault" means any criminal conduct described in Title
76, Chapter 5,
Part 4
, Sexual Offenses.
(b)
"Sexual assault" does not include criminal conduct described in:
(i)
Section
76-5-417
, enticing a minor;
(ii)
Section
76-5-418
, sexual battery;
(iii)
Section
76-5-419
, lewdness; or
(iv)
Section
76-5-420
, lewdness involving a child.
(46)
"Sexual assault counselor" means an individual who:
(a)
is employed by or volunteers at a rape crisis and services center;
(b)
has a minimum of 40 hours of training in counseling and assisting victims of sexual
assault; and
(c)
is under the supervision of the director of a rape crisis and services center or the
director's designee.
(47)
"Strangulation" means any act involving the use of unlawful force or violence that:
(a)
impedes breathing or the circulation of blood; and
(b)
is likely to produce a loss of consciousness by:
(i)
applying pressure to the neck or throat of an individual; or
(ii)
obstructing the nose, mouth, or airway of an individual.
(48)
"Substantial bodily injury" means the same as that term is defined in Section
76-1-101.5
.
(49)
(a)
"Victim" means an individual who suffers bodily or psychological injury or
death as a direct result of:
(i)
criminally injurious conduct; or
(ii)
the production of pornography in violation of Section
76-5b-201
or
76-5b-201.1

if the individual is a minor.
(b)
"Victim" does not include an individual who participated in or observed the judicial
proceedings against an offender unless otherwise provided by statute or rule made in
accordance with Title
63G, Chapter 3
, Utah Administrative Rulemaking Act.
(50)
"Work loss" means loss of income from work the injured victim would have performed
if the injured victim had not been injured and expenses reasonably incurred by the
injured victim in obtaining services in lieu of those the injured victim would have
performed for income, reduced by any income from substitute work the injured victim
was capable of performing but unreasonably failed to undertake.
Section 12. Section
76-2-306
is amended to read:
76-2-306
. Voluntary intoxication.
(1)
Voluntary intoxication is not a defense to a criminal charge unless such intoxication
negates the existence of the mental state which is an element of the offense. If
recklessness or criminal negligence establishes an element of an offense and the actor is
unaware of the risk because of voluntary intoxication,
his
the actor's
unawareness is
immaterial in a prosecution for that offense.
(2)
Voluntary intoxication is not a defense to
a
sexual
offenses
offense
, as described in
Title 76, Chapter 5, Part 4, Sexual Offenses
, other than Section
76-5-417
,
76-5-418
,
76-5-419
, or
76-5-420
.
Section 13. Section
76-3-203.1
is amended to read:
76-3-203.1
. Enhanced penalty for offenses committed in or for a certain group.
(1)
As used in this section:
(a)
"Criminal street gang" means the same as that term is defined in Section
76-9-802
.
(b)
"In concert with two or more individuals" means:
(i)
the actor was aided or encouraged by at least two other individuals in committing
an offense and was aware of this aid or encouragement; and
(ii)
each of the other individuals:
(A)
was physically present; and
(B)
participated as a party to an offense listed in Subsection
(6)
or
(7)
.
(c)
"In concert with two or more individuals" means, regarding intent:
(i)
any other individual participating as a party need not have the intent to engage in
the same offense or degree of offense as the actor; and
(ii)
a minor is a party if the minor's actions would cause the minor to be a party if the
minor were an adult.
(d)
"Organized criminal group" means a group of three or more individuals, whether
operating formally or informally, that:
(i)
has as one of the group's purposes the commission of criminal offenses; and
(ii)
whose members collectively engage in committing criminal offenses for the
financial or other material benefit of the members or group.
(e)
"Principal place of residence" means the single location where an individual's
habitation is fixed and to which, whenever the individual is absent, the individual has
the intention of returning, as evidenced by:
(i)
the intent expressed by the individual; and
(ii)
acts of the individual that are consistent or inconsistent with the intent expressed
by the individual.
(2)
An actor who commits an offense listed in Subsection
(6)
is subject to an enhanced
penalty for the offense as provided in Subsection
(5)
if the trier of fact finds beyond a
reasonable doubt that the actor acted:
(a)
in concert with two or more individuals;
(b)
for the benefit of, at the direction of, or in association with a criminal street gang or
other organized criminal group; or
(c)
to gain recognition, acceptance, membership, or increased status with a criminal
street gang or other organized criminal group.
(3)
An actor who commits an offense listed in Subsection
(7)
is subject to an enhanced
penalty for the offense as provided in Subsection
(5)
if the trier of fact finds beyond a
reasonable doubt that the actor:
(a)
(i)
acted in concert with two or more individuals; and
(ii)
(A)
traveled more than 50 miles from the actor's principal place of residence
for the purpose of the actor committing an offense listed in Subsection
(7)
; or
(B)
had previously been convicted of an offense listed in Subsection
(7)
, or an
offense in another jurisdiction, including a state, federal, or military court, that
is substantially equivalent to an offense under Subsection
(7)
;
(b)
acted for the benefit of, at the direction of, or in association with a criminal street
gang or other organized criminal group; or
(c)
acted to gain recognition, acceptance, membership, or increased status with a
criminal street gang or other organized criminal group.
(4)
The prosecuting attorney, or grand jury if an indictment is returned, shall cause to be
subscribed upon the information or indictment notice that the actor is subject to the
enhanced penalties provided under this section.
(5)
For an offense listed in Subsection
(6)
or
(7)
, an actor may be charged as follows:
(a)
for a class B misdemeanor, as a class A misdemeanor;
(b)
for a class A misdemeanor, as a third degree felony;
(c)
for a third degree felony, as a second degree felony; and
(d)
for a second degree felony, as a first degree felony.
(6)
The offenses referred to in Subsection
(2)
are:
(a)
an offense described in Chapter 5, Part 1, Assault and Related Offenses;
(b)
an offense described in Chapter 5, Part 2, Criminal Homicide;
(c)
a felony offense described in Chapter 5, Part 3, Kidnapping, Trafficking, and
Smuggling;
(d)
a felony offense described in Chapter 5, Part 4, Sexual Offenses
, other than enticing
a minor under Section
76-5-417
, lewdness under Section
76-5-419
, or lewdness
involving a child under Section
76-5-420
;
(e)
a felony violation of aiding prostitution as described in Section
76-5d-206
;
(f)
exploiting prostitution as described in Section
76-5d-207
;
(g)
aggravated exploitation of prostitution under Section
76-5d-208
;
(h)
robbery as described in Section
76-6-202
;
(i)
burglary as described in Subsection
76-6-202(3)(b)
;
(j)
aggravated burglary as described in Section
76-6-203
;
(k)
burglary of a research facility as described in Section
76-6-207
;
(l)
aggravated robbery as described in Section
76-6-302
;
(m)
an offense described in Chapter 11, Weapons; and
(n)
transporting or harboring aliens as described in Section
76-14-209
.
(7)
The offenses referred to in Subsection
(3)
are:
(a)
criminal solicitation of a minor as described in Section
76-4-205
;
(b)
an offense described in Chapter 6, Part 1, Property Destruction;
(c)
an offense described in Chapter 6, Part 4, Theft;
(d)
an offense described in Chapter 6, Part 6, Retail Theft;
(e)
an offense described in Chapter 6, Part 11, Identity Fraud Act;
(f)
communications fraud as described in Section
76-6-525
; and
(g)
an offense described in Chapter 9, Part 16, Money Laundering and Currency
Transaction Reporting Act.
(8)
A court may, if not otherwise prohibited from doing so by another section of the code,
suspend a sentence imposed under this section and place the actor on probation.
(9)
It is not a bar to imposing the enhanced penalties under this section that the individuals
with whom the actor is alleged to have acted in concert are not identified, apprehended,
charged, or convicted, or that any of those individuals are charged with or convicted of a
different or lesser offense.
Section 14. Section
76-3-203.12
is amended to read:
76-3-203.12
. Enhanced penalty for sexual offenses committed by a person with
human immunodeficiency virus, acquired immunodeficiency virus, hepatitis B, or
hepatitis C.
(1)
As used in this section:
(a)
"Sexual offense" means an offense described in Chapter 5, Part 4, Sexual Offenses.
(b)
"Sexual offense" does not include:
(i)
enticing a minor, as described in Section
76-5-417
;
(ii)
sexual battery, as described in Section
76-5-418
;
(iii)
(i)
lewdness, as described in Section
76-5-419
; or
(iv)
(ii)
lewdness involving a child, as described in Section
76-5-420
.
(2)
A person convicted of a sexual offense is subject to an enhanced penalty if at the time of
the sexual offense the person was infected with human immunodeficiency virus,
acquired immunodeficiency virus, hepatitis B, or hepatitis C and the person knew of the
infection.
(3)
(a)
Except as provided in Subsection
(3)(b)
, the enhancement of a penalty described
in Subsection
(2)
shall be an enhancement of one classification higher than the root
offense for which the person was convicted.
(b)
A felony of the first degree is not enhanced under this section.
Section 15. Section
76-3-209
is amended to read:
76-3-209
. Limitation on sentencing for crimes committed by juveniles.
(1)
As used in this section
:
,
(a)
"Qualifying
"qualifying
sexual offense" means an offense described in Chapter 5,
Part 4, Sexual Offenses.
(b)
"Qualifying sexual offense" does not include enticing a minor as described in
Section
76-5-417
.
(2)
(a)
This Subsection
(2)
only applies prospectively to an individual sentenced on or
after May 10, 2016.
(b)
Notwithstanding any provision of law, an individual may not be sentenced to life
without parole if:
(i)
the individual is convicted of a crime punishable by life without parole; and
(ii)
at the time the individual committed the crime, the individual was under 18 years
old.
(c)
The maximum punishment that may be imposed on an individual described in
Subsection
(2)(b)
is an indeterminate prison term of not less than 25 years and that
may be for life.
(3)
Except as provided in Subsection
(4)
, if an individual is convicted in district court of a
qualifying sexual offense and, at the time of the offense, the individual was at least 14
years old, but under 18 years old:
(a)
the district court shall impose a sentence consistent with the disposition that would
have been made in juvenile court; and
(b)
the district court may not impose incarceration unless the court enters specific
written findings that incarceration is warranted based on a totality of the
circumstances, taking into account:
(i)
the time that elapsed after the individual committed the offense;
(ii)
the age of the individual at the time of the offense;
(iii)
the age of the victim at the time of the offense;
(iv)
the criminal history of the individual after the individual committed the offense;
(v)
any treatment assessments or validated risk tools; and
(vi)
public safety concerns.
(4)
Subsection
(3)
does not apply if:
(a)
before the individual described in Subsection
(3)
is convicted of the qualifying
sexual offense, the individual is convicted of a qualifying sexual offense that the
individual committed when the individual was 18 years old or older;
(b)
the individual is convicted in district court, before the victim is 18 years old, of a
violation of Section
76-5-405
, aggravated sexual assault; or
(c)
the conviction occurred in district court after the individual was:
(i)
charged by criminal information in the juvenile court for the qualifying sexual
offense in accordance with Section
80-6-503
; and
(ii)
bound over to the district court for the qualifying sexual offense in accordance
with Section
80-6-504
.
(5)
If the district court imposes incarceration under Subsection
(3)(b)
, the term of
incarceration may not exceed:
(a)
seven years for a violation of Section
76-5-405
, aggravated sexual assault;
(b)
except as provided in Subsection
(5)(a)
, four years for a felony violation of
Chapter
5, Part 4, Sexual Offenses
, other than Section
76-5-417
,
76-5-419
, or
76-5-420
; or
(c)
the maximum sentence described in Section
76-3-204
for a misdemeanor violation of
Chapter 5, Part 4, Sexual Offenses
, other than Section
76-5-417
.
Section 16. Section
76-4-102
is amended to read:
76-4-102
. Attempt -- Classification of offenses.
(1)
A violation of Section
76-4-101
where the actor attempts to commit:
(a)
(i)
a capital felony, or a felony punishable by imprisonment for life without parole,
is a first degree felony;
(ii)
except as provided in Subsection
(2)
, aggravated murder under Section
76-5-202
,
which results in serious bodily injury, is punishable by imprisonment for an
indeterminate term of not fewer than 15 years and which may be for life;
(b)
except as provided in Subsection
(1)(c)
,
(d)
, or
(e)
, a first degree felony is a second
degree felony;
(c)
murder under Subsection
76-5-203(2)(a)
is a first degree felony punishable by
imprisonment for an indeterminate term of not fewer than five years and which may
be for life;
(d)
one of
the
the following offenses is a first degree felony that is punishable by
imprisonment for an indeterminate term of not fewer than three years and which may
be for life:
(i)
child kidnapping under Section
76-5-301.1
; or
(ii)
except as provided in Subsection
(1)(e)
, a felony described in
Title 76, Chapter 5,
Part 4, Sexual Offenses
, other than Section
76-5-417
,
,
that is a first degree
felony;
(e)
except as provided in Subsection
(3)
, one of the following offenses is a first degree
felony that is punishable by imprisonment for an indeterminate term of not fewer
than 15 years and which may be for life:
(i)
rape of a child under Section
76-5-402.1
;
(ii)
object rape of a child under Section
76-5-402.3
; or
(iii)
sodomy on a child under Section
76-5-403.1
;
(f)
a second degree felony is a third degree felony;
(g)
a third degree felony is a class A misdemeanor;
(h)
a class A misdemeanor is a class B misdemeanor;
(i)
a class B misdemeanor is a class C misdemeanor; and
(j)
a class C misdemeanor is punishable by a penalty not exceeding one half the penalty
for a class C misdemeanor.
(2)
If, when imposing a sentence under Subsection
(1)(a)(ii)
, a court finds that a lesser term
than the term described in Subsection
(1)(a)(ii)
is in the interests of justice and the court
states the reasons for this finding on the record, the court may impose a term of
imprisonment of not less than:
(a)
10 years and which may be for life; or
(b)
six years and which may be for life.
(3)
If, when imposing a sentence under Subsection
(1)(e)
, a court finds that a lesser term
than the term described in Subsection
(1)(e
) is in the interests of justice and states the
reasons for this finding on the record, the court may impose a term of imprisonment of
not less than:
(a)
10 years and which may be for life;
(b)
six years and which may be for life; or
(c)
three years and which may be for life.
Section 17. Section
76-4-202
is amended to read:
76-4-202
. Conspiracy -- Classification of offenses.
Conspiracy to commit:
(1)
a capital felony is a first degree felony;
(2)
a first degree felony is a second degree felony, except that conspiracy to commit child
kidnaping, in violation of Section
76-5-301.1
or to commit any of those felonies
described in
Title 76, Chapter 5, Part 4, Sexual Offenses
, other than Section
76-5-417
,
which are first degree felonies, is a first degree felony punishable by imprisonment for
an indeterminate term of not less than three years and which may be for life;
(3)
a second degree felony is a third degree felony;
(4)
a third degree felony is a class A misdemeanor;
(5)
a class A misdemeanor is a class B misdemeanor;
(6)
a class B misdemeanor is a class C misdemeanor;
or
(7)
A
a
class C misdemeanor is punishable by a penalty not exceeding one half the penalty
for a class C misdemeanor.
Section 18. Section
76-4-203
is amended to read:
76-4-203
. Criminal solicitation of an adult.
(1)
(a)
As used in this section:
(i)
"Adult" means an individual who is 18 years old or older.
(ii)
"Solicit" means to ask, command, encourage, importune, offer to hire, or request.
(b)
Terms defined in Section
76-1-101.5
apply to this section.
(2)
An actor commits criminal solicitation of an adult if, with the intent that a felony
offense be committed, the actor solicits an adult to engage in specific conduct that, under
the circumstances as the actor believes the circumstances to be, would be a felony
offense or would cause the adult to be a party to the commission of a felony offense.
(3)
A violation of Subsection
(2)
where the actor solicits the adult to commit:
(a)
a capital felony, or a felony punishable by imprisonment for life without parole, is a
first degree felony;
(b)
except as provided in Subsection
(3)(c)
or
(d)
, a first degree felony is a second
degree felony;
(c)
any of the following felony offenses is a first degree felony punishable by
imprisonment for an indeterminate term of not fewer than three years and which may
be for life:
(i)
murder, as described in Subsection
76-5-203(2)(a)
;
(ii)
child kidnapping, as described in Section
76-5-301.1
; or
(iii)
except as provided in Subsection
(3)(d)
, an offense described in Title 76, Chapter
5, Part 4, Sexual Offenses
, other than Section
76-5-417
, that is a first degree
felony;
(d)
except as provided in Subsection
(4)
, any of the following felony offenses is a first
degree felony punishable by a term of imprisonment of not less than 15 years and
which may be for life:
(i)
rape of a child, Section
76-5-402.1
;
(ii)
object rape of a child, Section
76-5-402.3
; or
(iii)
sodomy on a child, Section
76-5-403.1
;
(e)
a second degree felony is a third degree felony; and
(f)
a third degree felony is a class A misdemeanor.
(4)
If a court finds that a lesser term than the term described in Subsection
(3)(d)
is in the
interests of justice and states the reasons for this finding on the record, the court may
impose a term of imprisonment of not less than:
(a)
10 years and which may be for life;
(b)
six years and which may be for life; or
(c)
three years and which may be for life.
(5)
An actor may be convicted under this section only if the solicitation is made under
circumstances strongly corroborative of the actor's intent that the offense be committed.
(6)
It is not a defense to a violation of this section that:
(a)
the adult solicited by the actor:
(i)
does not agree to act upon the solicitation;
(ii)
does not commit an overt act;
(iii)
does not engage in conduct constituting a substantial step toward the commission
of any offense;
(iv)
is not criminally responsible for the felony offense solicited;
(v)
was acquitted, was not prosecuted or convicted, or was convicted of a different
offense or of a different type or degree of offense; or
(vi)
is immune from prosecution; or
(b)
the actor:
(i)
belongs to a class of persons that by definition is legally incapable of committing
the offense in an individual capacity; or
(ii)
fails to communicate with the adult that the actor solicits to commit an offense if
the intent of the actor's conduct was to effect the communication.
(7)
Nothing in this section prevents an actor who otherwise solicits an adult to engage, or
intentionally aids an adult in engaging, in conduct that constitutes an offense from being
prosecuted and convicted as a party to the offense under Section
76-2-202
if the adult
actually commits the offense.
Section 19. Section
76-5-107
is amended to read:
76-5-107
. Threat of violence.
(1)
Terms defined in Section
76-1-101.5
apply to this section.
(2)
An actor commits a threat of violence if the actor:
(a)
(i)
threatens to commit an offense:
(A)
under Title 76, Chapter 5, Part 4, Sexual Offenses
, other than Section
76-5-417
,
76-5-418
,
76-5-419
, or
76-5-420
; or
(B)
involving bodily injury, death, or substantial property damage; and
(ii)
acts with intent to place an individual in fear:
(A)
that the actor will imminently commit an offense under Title 76, Chapter 5,
Part 4, Sexual Offenses,
other than Section
76-5-417
,
76-5-418
,
76-5-419
, or
76-5-420
,
against the individual; or
(B)
of imminent serious bodily injury, substantial bodily injury, or death; or
(b)
makes a threat, accompanied by a show of immediate force or violence, to do bodily
injury to an individual.
(3)
(a)
A violation of Subsection
(2)
is a class B misdemeanor.
(b)
An actor who commits an offense under this section is subject to punishment for that
offense, in addition to any other offense committed, including the carrying out of the
threatened act.
(4)
It is not a defense under this section that the actor did not attempt to or was incapable of
carrying out the threat.
(5)
A threat under Subsection
(2)
may be express or implied.
Section 20. Section
76-5-302
is amended to read:
76-5-302
. Aggravated kidnapping.
(1)
(a)
As used in this section, "in the course of committing unlawful detention or
kidnapping" means in the course of committing, attempting to commit, or in the
immediate flight after the attempt or commission of a violation of:
(i)
Section
76-5-301
, kidnapping; or
(ii)
Section
76-5-304
, unlawful detention.
(b)
Terms defined in Section
76-1-101.5
apply to this section.
(2)
An actor commits aggravated kidnapping if the actor, in the course of committing
unlawful detention or kidnapping:
(a)
uses or threatens to use a dangerous weapon; or
(b)
acts with the intent to:
(i)
hold the victim for ransom or reward, as a shield or hostage, or to compel a third
person to engage in particular conduct or to forbear from engaging in particular
conduct;
(ii)
facilitate the commission, attempted commission, or flight after commission or
attempted commission of a felony;
(iii)
hinder or delay the discovery of or reporting of a felony;
(iv)
inflict bodily injury on or to terrorize the victim or another individual;
(v)
interfere with the performance of any governmental or political function; or
(vi)
commit a sexual offense as described in
Title 76, Chapter 5, Part 4, Sexual
Offenses
, other than Section
76-5-417
,
76-5-418
,
76-5-419
,
or
76-5-420
.
(3)
(a)
A violation of Subsection
(2)
in the course of committing unlawful detention is a
third degree felony.
(b)
A violation of Subsection
(2)
in the course of committing kidnapping is a first degree
felony.
(4)
An actor convicted of a violation of Subsection
(3)(b)
shall be sentenced to
imprisonment of:
(a)
except as provided in Subsection
(4)(b)
,
(4)(c)
, or
(5)
, not less than 15 years and
which may be for life;
(b)
except as provided in Subsection
(4)(c)
or
(5)
, life without parole, if the trier of fact
finds that during the course of the commission of the aggravated kidnapping the
defendant caused serious bodily injury to the victim or another individual; or
(c)
life without parole, if the trier of fact finds that at the time of the commission of the
aggravated kidnapping, the defendant was previously convicted of a grievous sexual
offense.
(5)
If, when imposing a sentence under Subsection
(4)(a)
or
(b)
, a court finds that a lesser
term than the term described in Subsection
(4)(a)
or
(b)
is in the interests of justice and
states the reasons for this finding on the record, the court may impose a term of
imprisonment of not less than:
(a)
for purposes of Subsection
(4)(b)
, 15 years and which may be for life; or
(b)
for purposes of Subsection
(4)(a)
or
(b)
:
(i)
10 years and which may be for life; or
(ii)
six years and which may be for life.
(6)
The provisions of Subsection
(5)
do not apply when a defendant is sentenced under
Subsection
(4)(c)
.
(7)
Subsections
(4)(b)
and
(c)
do not apply if the actor was younger than 18 years old at the
time of the offense.
(8)
Imprisonment under Subsection
(4)
is mandatory in accordance with Section
76-3-406
.
Section 21. Section
76-5b-201
is amended to read:
76-5b-201
. Sexual exploitation of a minor -- Offenses.
(1)
Terms defined in Section
76-1-101.5
apply to this section.
(2)
An actor commits sexual exploitation of a minor when the actor knowingly possesses,
views, accesses with the intent to view, or maintains access with the intent to view, child
sexual abuse material.
(3)
(a)
A violation of Subsection
(2)
is a second degree felony.
(b)
It is a separate offense under this section:
(i)
for each minor depicted in the child sexual abuse material; and
(ii)
for each time the same minor is depicted in different child sexual abuse material.
(4)
For a charge of violating this section, it is an affirmative defense that:
(a)
the defendant:
(i)
did not solicit the child sexual abuse material from the minor depicted in the child
sexual abuse material;
(ii)
is not more than two years older than the minor depicted in the child sexual abuse
material; and
(iii)
upon request of a law enforcement agent or the minor depicted in the child
sexual abuse material, removes from an electronic device or destroys the child
sexual abuse material and all copies of the child sexual abuse material in the
defendant's possession; and
(b)
the child sexual abuse material does not depict an offense under Chapter 5, Part 4,
Sexual Offenses
, other than Section
76-5-417
,
76-5-418
,
76-5-419
, or
76-5-420
.
(5)
In proving a violation of this section in relation to an identifiable minor, proof of the
actual identity of the identifiable minor is not required.
(6)
The following are not criminally or civilly liable under this section when acting in good
faith compliance with Section
77-4-201
:
(a)
an entity or an employee, director, officer, or agent of an entity when acting within
the scope of employment, for the good faith performance of:
(i)
reporting or data preservation duties required under federal or state law; or
(ii)
implementing a policy of attempting to prevent the presence of child sexual abuse
material on tangible or intangible property, or of detecting and reporting the
presence of child sexual abuse material on the property;
(b)
a law enforcement officer, a civilian employee of a law enforcement agency, or an
independent contractor who is contracted with a law enforcement agency, acting
within the scope of a criminal investigation;
(c)
an employee of a court who may be required to view child sexual abuse material
during the course of and within the scope of the employee's employment;
(d)
a juror who may be required to view child sexual abuse material during the course of
the individual's service as a juror;
(e)
an attorney or employee of an attorney who is required to view child sexual abuse
material during the course of a judicial process and while acting within the scope of
employment;
(f)
an employee of the Department of Health and Human Services who is required to
view child sexual abuse material within the scope of the employee's employment;
(g)
an employee, independent contractor, or designated interviewer of a Children's
Justice Center, who is required to view child sexual abuse material within the scope
of the employee's, independent contractor's, or designated interviewer's scope of
employment or assignment;
or
(h)
an attorney who is required to view child sexual abuse material within the scope of
the attorney's responsibility to represent the Department of Health and Human
Services, including the divisions and offices within the Department of Health and
Human Services.
Section 22. Section
76-7-101
is amended to read:
76-7-101
. Bigamy.
(1)
An individual is guilty of bigamy if:
(a)
the individual purports to marry another individual; and
(b)
knows or reasonably should know that one or both of the individuals described in
Subsection
(1)(a)
are legally married to another individual.
(2)
An individual who violates Subsection
(1)
is guilty of an infraction.
(3)
An individual is guilty of a third degree felony if the individual induces bigamy:
(a)
under fraudulent or false pretenses; or
(b)
by threat or coercion.
(4)
An individual is guilty of a second degree felony if the individual:
(a)
cohabitates with another individual with whom the individual is engaged in bigamy
as described in Subsection
(1)
; and
(b)
in furtherance of the conduct described in Subsection
(4)(a)
,
:
(i)

commits a felony
offense, or for Section
76-5-418
, a misdemeanor offense, in
violation of
one or more of the following
:
(i)
(A)
Section
76-5-109
, child abuse;
(ii)
(B)
Section
76-5-109.2
, aggravated child abuse;
(iii)
(C)
Section
76-5-109.3
, child abandonment;
(iv)
(D)
Section
76-5-109.4
, child torture;
(v)
(E)
Section
76-5-111
, abuse of a vulnerable adult;
(vi)
(F)
Section
76-5-111.2
, aggravated abuse of a vulnerable adult;
(vii)
(G)
Section
76-5-111.3
, personal dignity exploitation of a vulnerable adult;
(viii)
(H)
Section
76-5-111.4
, financial exploitation of a vulnerable adult;
(ix)
(I)
Chapter 5, Part 2, Criminal Homicide
;
(x)
(J)
Section
76-5-208
, child abuse homicide;
(xi)
(K)
Chapter 5, Part 3, Kidnapping, Trafficking, and Smuggling
;
(xii)
(L)
Chapter 5, Part 4, Sexual Offenses
, other than:
;
(A)
Section
76-5-417
, enticing a minor;
(B)
Section
76-5-419
, lewdness;
or
(C)
Section
76-5-420
, lewdness involving a child
;
(xiii)
(M)
Section
76-7-201
, criminal nonsupport;
(xiv)
(N)
Title 77, Chapter 36, Cohabitant Abuse Procedures Act
; or
(xv)
(O)
Title 78B, Chapter 7, Part 8, Criminal Protective Orders
.
; or
(ii)
commits a misdemeanor violation of Section
76-5-418
, sexual battery.
(5)
It is a defense to prosecution under Subsection
(2)
that:
(a)
the individual ceased the practice of bigamy as described in Subsection
(1)
under
reasonable fear of coercion or bodily harm;
(b)
the individual entered the practice of bigamy, as described in Subsection
(1)
, as a
minor and ceased the practice of bigamy at any time after the individual entered the
practice of bigamy; or
(c)
law enforcement discovers that the individual practices bigamy, as described in
Subsection
(1)
, as a result of the individual's efforts to protect the safety and welfare
of another individual.
Section 23. Section
77-2-9
is amended to read:
77-2-9
. Offenses ineligible for diversion.
(1)
A magistrate may not grant a diversion for:
(a)
a capital felony;
(b)
a felony in the first degree;
(c)
any case involving a sexual offense against a victim who is under 14 years old;
(d)
any motor vehicle related offense involving alcohol or drugs;
(e)
any case involving using a motor vehicle in the commission of a felony;
(f)
driving a motor vehicle or commercial motor vehicle on a revoked or suspended
license;
(g)
any case involving operating a commercial motor vehicle in a negligent manner
causing the death of another including the offenses of:
(i)
manslaughter under Section
76-5-205
; or
(ii)
negligent homicide under Section
76-5-206
; or
(h)
a crime of domestic violence as defined in Section
77-36-1
.
(2)
When an individual is alleged to have committed any violation of
Title 76, Chapter 5,
Part 4, Sexual Offenses
, other than a violation of Section
76-5-417
,
76-5-418
,
76-5-419
,
or
76-5-420
,
,
while the individual is under 16 years old, the court may enter a diversion
in the matter if the court enters on the record the court's findings that:
(a)
the offenses could have been adjudicated in juvenile court but for the delayed
reporting or delayed filing of the information in the district court, unless the offenses
are before the court in accordance with Section
80-6-502
or
80-6-504
;
(b)
the individual did not use coercion or force;
(c)
there is no more than three years' difference between the ages of the participants; and
(d)
it would be in the best interest of the person to grant diversion.
Section 24. Section
77-7a-104
is amended to read:
77-7a-104
. Activation and use of body-worn cameras.
(1)
As used in this section:
(a)
"Health care facility" means the same as that term is defined in Section
78B-3-403
.
(b)
"Health care provider" means the same as that term is defined in Section
78B-3-403
.
(c)
"Hospital" means the same as that term is defined in Section
78B-3-403
.
(d)
"Human service program" means the same as that term is defined in Section
26B-2-101
.
(2)
Except as provided in Subsection
(5)
, an officer using a body-worn camera:
(a)
shall verify that the equipment is properly functioning as is reasonably within the
officer's ability;
(b)
shall report any malfunctioning equipment to the officer's supervisor if:
(i)
the body-worn camera issued to the officer is not functioning properly upon initial
inspection; or
(ii)
the officer determines that the officer's body-worn camera is not functioning
properly at any time while the officer is on duty;
(c)
shall wear the body-worn camera so that it is clearly visible to the individual being
recorded;
(d)
shall activate the body-worn camera prior to any law enforcement encounter, or as
soon as reasonably possible;
(e)
shall record in an uninterrupted manner until after the conclusion of a law
enforcement encounter, except as an interruption of a recording is allowed under this
section;
(f)
shall, when going on duty and off duty, record the officer's name, identification
number, and the current time and date, unless the information is already available due
to the functionality of the body-worn camera;
(g)
shall, if the body-worn camera was present during a law enforcement encounter,
document the presence of the body-worn camera in any report or other official record
of a contact;
(h)
except as provided in Subsection
(2)(i)
, when the body-worn camera has been
activated during the officer's direct participation in a law enforcement encounter,
keep the body-worn camera activated until the officer's direct participation in the law
enforcement encounter is complete;
(i)
may deactivate the body-worn camera:
(i)
to consult with a supervisor or another officer;
(ii)
during a significant period of inactivity;
(iii)
during a conversation with a sensitive victim of crime, a witness of a crime, or an
individual who wishes to report or discuss criminal activity if:
(A)
the individual who is the subject of the recording requests that the officer
deactivate the officer's body-worn camera; and
(B)
the officer believes that the value of the information outweighs the value of
the potential recording and records the request by the individual to deactivate
the body-worn camera; or
(iv)
during a conversation with a victim of a domestic violence offense as defined in
Section
77-36-1
, or a sexual offense, as described in
Title 76, Chapter 5, Part 4,
Sexual Offenses
,

other than Section
76-5-417
,
76-5-418
,
76-5-419
, or
76-5-420

if:
(A)
the officer is conducting an evidence-based lethality assessment;
(B)
the victim or the officer believes that deactivating the body-worn camera
recording will encourage complete and accurate information sharing by the
victim, or is necessary to protect the safety or identity of the victim; and
(C)
the officer's body-worn camera is reactivated as soon as reasonably possible
after the evidence-based lethality assessment is complete;
(j)
shall, if the officer deactivates or fails to activate the body-worn camera in violation
of this section, document in a written report the reason for deactivating or for failing
to activate the body-worn camera; and
(k)
may not activate a body-worn camera in a hospital, health care facility, human
service program, or the clinic of a health care provider, except during a law
enforcement encounter, and with notice under Section
77-7a-105
.
(3)
A violation of this section may not serve as the sole basis to dismiss a criminal case or
charge.
(4)
This section does not preclude a law enforcement agency from establishing internal
agency policies for an officer's failure to comply with the requirements of this section.
(5)
Subsections
(2)(c)
,
(d)
,
(e)
,
(g)
,
(h)
, and
(j)
do not apply to an officer who:
(a)
is assigned to a narcotics unit or task force that is engaged primarily in narcotics
investigations; or
(b)
is engaged in an undercover operation.
Section 25. Section
77-22-2.5
is amended to read:
77-22-2.5
. Court orders for criminal investigations for records concerning an
electronic communications system or service or remote computing service -- Content --
Fee for providing information.
(1)
As used in this section:
(a)
(i)
"Electronic communication" means any transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature transmitted in whole or in part
by a wire, radio, electromagnetic, photoelectronic, or photooptical system.
(ii)
"Electronic communication" does not include:
(A)
a wire or oral communication;
(B)
a communication made through a tone-only paging device;
(C)
a communication from a tracking device; or
(D)
electronic funds transfer information stored by a financial institution in a
communications system used for the electronic storage and transfer of funds.
(b)
"Electronic communications service" means a service which provides for users the
ability to send or receive wire or electronic communications.
(c)
"Electronic communications system" means a wire, radio, electromagnetic,
photooptical, or photoelectronic facilities for the transmission of wire or electronic
communications, and a computer facilities or related electronic equipment for the
electronic storage of the communication.
(d)
"Internet service provider" means the same as that term is defined in Section
76-5c-401
.
(e)
"Prosecutor" means the same as that term is defined in Section
77-22-4.5
.
(f)
"Remote computing service" means the provision to the public of computer storage
or processing services by means of an electronic communications system.
(g)
(i)
"Sexual offense against a minor" means:
(A)
(i)
sexual exploitation of a minor or attempted sexual exploitation of a minor in
violation of Section
76-5b-201
;
(B)
(ii)
aggravated sexual exploitation of a minor or attempted aggravated sexual
exploitation of a minor in violation of Section
76-5b-201.1
;
(C)
(iii)
a sexual offense or attempted sexual offense committed against a minor in
violation of
Title 76, Chapter 5, Part 4, Sexual Offenses
;
(D)
(iv)
dealing in or attempting to deal in material harmful to a minor in violation
of Section
76-5c-205
or
76-5c-206
;
(E)
(v)
human trafficking of a child in violation of Section
76-5-308.5
; or
(F)
(vi)
aggravated sexual extortion of a child in violation of Section
76-5b-204
.
(ii)
"Sexual offense against a minor" does not include an offense described in
Section
76-5-418
,
76-5-419
, or
76-5-420
.
(2)
When a law enforcement agency is investigating a sexual offense against a minor, an
offense of stalking under Section
76-5-106.5
, or an offense of child kidnapping under
Section
76-5-301.1
, and has reasonable suspicion that an electronic communications
system or service or remote computing service has been used in the commission of a
criminal offense, a law enforcement agent shall:
(a)
articulate specific facts showing reasonable grounds to believe that the records or
other information sought, as designated in Subsections
(2)(c)(i)
through
(v)
, are
relevant and material to an ongoing investigation;
(b)
present the request to a prosecutor for review and authorization to proceed; and
(c)
submit the request to a magistrate for a court order, consistent with 18 U.S.C. Sec.
2703 and 18 U.S.C. Sec. 2702, to the electronic communications system or service or
remote computing service provider that owns or controls the Internet protocol
address, websites, email address, or service to a specific telephone number, requiring
the production of the following information, if available, upon providing in the court
order the Internet protocol address, email address, telephone number, or other
identifier, and the dates and times the address, telephone number, or other identifier
is suspected of being used in the commission of the offense:
(i)
names of subscribers, service customers, and users;
(ii)
addresses of subscribers, service customers, and users;
(iii)
records of session times and durations;
(iv)
length of service, including the start date and types of service utilized; and
(v)
telephone or other instrument subscriber numbers or other subscriber identifiers,
including a temporarily assigned network address.
(3)
A court order issued under this section shall state that the electronic communications
system or service or remote computing service provider shall produce a record under
Subsections
(2)(c)(i)
through
(v)
that is reasonably relevant to the investigation of the
suspected criminal activity or offense as described in the court order.
(4)
(a)
An electronic communications system or service or remote computing service
provider that provides information in response to a court order issued under this
section may charge a fee, not to exceed the actual cost, for providing the information.
(b)
The law enforcement agency conducting the investigation shall pay the fee.
(5)
The electronic communications system or service or remote computing service provider
served with or responding to the court order may not disclose the court order to the
account holder identified pursuant to the court order for a period of 90 days.
(6)
If the electronic communications system or service or remote computing service
provider served with the court order does not own or control the Internet protocol
address, websites, or email address, or provide service for the telephone number that is
the subject of the court order, the provider shall notify the investigating law enforcement
agency that the provider does not have the information.
(7)
There is no cause of action against a provider or wire or electronic communication
service, or the provider or service's officers, employees, agents, or other specified
persons, for providing information, facilities, or assistance in accordance with the terms
of the court order issued under this section or statutory authorization.
(8)
(a)
A court order issued under this section is subject to the provisions of
Title 77,
Chapter 23b, Access to Electronic Communications
.
(b)
Rights and remedies for providers and subscribers under
Title 77, Chapter 23b,
Access to Electronic Communications
, apply to providers and subscribers subject to a
court order issued under this section.
(9)
A prosecutorial agency shall annually on or before February 15 report to the
Commission on Criminal and Juvenile Justice:
(a)
the number of requests for court orders authorized by the prosecutorial agency;
(b)
the number of orders issued by the court and the criminal offense, pursuant to
Subsection
(2)
, each order was used to investigate; and
(c)
if the court order led to criminal charges being filed, the type and number of offenses
charged.
Section 26. Section
77-36-1
is amended to read:
77-36-1
. Definitions.
As used in this chapter:
(1)
"Cohabitant" means the same as that term is defined in Section
78B-7-102
.
(2)
"Department" means the Department of Public Safety.
(3)
"Divorced" means an individual who has obtained a divorce under Title 81, Chapter 4,
Part 4, Divorce.
(4)
(a)
"Domestic violence" or "domestic violence offense" means any criminal offense
involving violence or physical harm or threat of violence or physical harm, or any
attempt, conspiracy, or solicitation to commit a criminal offense involving violence
or physical harm, when committed by one cohabitant against another.
(b)
"Domestic violence" or "domestic violence offense" includes the commission of or
attempt to commit, any of the following offenses by one cohabitant against another:
(i)
aggravated assault under Section
76-5-103
;
(ii)
aggravated cruelty to an animal under Section
76-13-203
, with the intent to harass
or threaten the other cohabitant;
(iii)
assault under Section
76-5-102
;
(iv)
criminal homicide under Section
76-5-201
;
(v)
harassment under Section
76-5-106
;
(vi)
electronic communication harassment under Sections
76-12-202
,
76-12-203
, and
76-12-204
;
(vii)
kidnapping, child kidnapping, or aggravated kidnapping under Sections
76-5-301
,
76-5-301.1
, and
76-5-302
;
(viii)
mayhem under Section
76-5-105
;
(ix)
propelling a bodily substance or material, as described in Section
76-5-102.9
;
(x)
sexual offenses under Title 76, Chapter 5, Part 4, Sexual Offenses, and sexual
exploitation of a minor and aggravated sexual exploitation of a minor, as
described in Sections
76-5b-201
and
76-5b-201.1
;
(xi)
stalking under Section
76-5-106.5
;
(xii)
unlawful detention and unlawful detention of a minor under Section
76-5-304
;
(xiii)
violation of a protective order or ex parte protective order under Section
76-5-108
;
(xiv)
an offense against property under Title 76, Chapter 6, Part 1, Property
Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title
76, Chapter 6, Part 3, Robbery;
(xv)
disorderly conduct under Section
76-9-102
, if a conviction or adjudication of
disorderly conduct is the result of a plea agreement in which the perpetrator was
originally charged with a domestic violence offense otherwise described in this
Subsection
(4)
, except that a conviction or adjudication of disorderly conduct as a
domestic violence offense, in the manner described in this Subsection
(4)(b)(xv)
,
does not constitute a misdemeanor crime of domestic violence under 18 U.S.C.
Sec. 921, and is exempt from the federal Firearms Act, 18 U.S.C. Sec. 921 et seq.;
(xvi)
child abuse under Section
76-5-114
;
(xvii)
threatening violence under Section
76-5-107
;
(xviii)
tampering with a witness under Section
76-8-508
;
(xix)
retaliation against a witness, victim, or informant under Section
76-8-508.3
;
(xx)
receiving or soliciting a bribe as a witness under Section
76-8-508.7
;
(xxi)
unlawful distribution of an intimate image under Section
76-5b-203
;
(xxii)
unlawful distribution of a counterfeit intimate image under Section
76-5b-205
;
(xxiii)
threatening with or using a dangerous weapon in a fight or quarrel under
Section
76-11-207
;
(xxiv)
possession of a dangerous weapon with criminal intent under Section
76-11-208
;
(xxv)
improper discharging of a dangerous weapon under Section
76-11-209
;
(xxvi)
voyeurism under Section
76-12-306
;
(xxvii)
recorded or photographed voyeurism under Section
76-12-307
;
(xxviii)
distribution of images obtained through voyeurism under Section
76-12-308
;
(xxix)
damage to or interruption of a communication device under Section
76-6-108
;
or
(xxx)
an offense under Subsection
78B-7-806(1)
.
(c)
"Domestic violence" or "domestic violence offense" does not include:
(i)
enticing a minor under Section
76-5-417
;
(ii)
lewdness under in Section
76-5-419
; or
(iii)
lewdness involving a child under Section
76-5-420
.
(5)
"Jail release agreement" means the same as that term is defined in Section
78B-7-801
.
(6)
"Jail release court order" means the same as that term is defined in Section
78B-7-801
.
(7)
"Marital status" means married and living together, divorced, separated, or not married.
(8)
"Married and living together" means a couple whose marriage was solemnized under
Section
81-2-305
or
81-2-407
and who are living in the same residence.
(9)
"Not married" means any living arrangement other than married and living together,
divorced, or separated.
(10)
"Protective order" includes an order issued under Subsection
78B-7-804(3)
.
(11)
"Pretrial protective order" means a written order:
(a)
specifying and limiting the contact a person who has been charged with a domestic
violence offense may have with an alleged victim or other specified individuals; and
(b)
specifying other conditions of release under Section
78B-7-802
or
78B-7-803
,
pending trial in the criminal case.
(12)
"Sentencing protective order" means a written order of the court as part of sentencing
in a domestic violence case that limits the contact an individual who is convicted or
adjudicated of a domestic violence offense may have with a victim or other specified
individuals under Section
78B-7-804
.
(13)
"Separated" means a couple who have had their marriage solemnized under Section
81-2-305
or
81-2-407
and who are not living in the same residence.
(14)
"Victim" means a cohabitant who has been subjected to domestic violence.
Section 27. Section
77-37-2
is amended to read:
77-37-2
. Definitions.
As used in this chapter:
(1)
"Alleged sexual offender" means the same as that term is defined in Section
53-10-801
.
(2)
"Child" means a person who is younger than 18 years old, unless otherwise specified in
statute. The rights to information as extended in this chapter also apply to the parents,
custodian, or legal guardians of children.
(3)
"Family member" means spouse, child, sibling, parent, grandparent, or legal guardian.
(4)
"HIV infection" means the same as that term is defined in Section
53-10-801
.
(5)
"Sexual assault kit" means the same as that term is defined in Section
53-10-902
.
(6)
(a)
"Sexual offense" means any conduct described in:
(i)
Title 76, Chapter 5, Part 4, Sexual Offenses;
(ii)
Title 76, Chapter 5b, Sexual Exploitation Act; or
(iii)
Section
76-7-102
, incest.
(b)
"Sexual offense" does not include conduct described in
:

(i)
Section
76-5-417
, enticing a minor;
(ii)
Section
76-5-420
, lewdness involving a child; or
(iii)
Section
76-5b-206
, failure to report child sexual abuse material by a computer
technician.
(7)
"Victim" means an individual, including a minor, against whom an offense has been
allegedly committed.
(8)
"Witness" means any person who has been subpoenaed or is expected to be summoned
to testify for the prosecution or who by reason of having relevant information is subject
to call or likely to be called as a witness for the prosecution, whether any action or
proceeding has commenced.
Section 28. Section
77-38-601
is amended to read:
77-38-601
. Definitions.
As used in this part:
(1)
"Abuse" means any of the following:
(a)
"abuse" as that term is defined in Section
76-5-111
or
80-1-102
; or
(b)
"child abuse" as that term is defined in Section
76-5-109
.
(2)
"Actual address" means the residential street address of the program participant that is
stated in a program participant's application for enrollment or on a notice of a change of
address under Section
77-38-610
.
(3)
"Assailant" means an individual who commits or threatens to commit abuse, human
trafficking, domestic violence, stalking, or a sexual offense against an applicant for the
program or a minor or incapacitated individual residing with an applicant for the
program.
(4)
"Assigned address" means an address designated by the commission and assigned to a
program participant.
(5)
"Authorization card" means a card issued by the commission that identifies a program
participant as enrolled in the program with the program participant's assigned address
and the date on which the program participant will no longer be enrolled in the program.
(6)
"Commission" means the State Commission on Criminal and Juvenile Justice created in
Section
63M-7-201
.
(7)
"Domestic violence" means the same as that term is defined in Section
77-36-1
.
(8)
"Human trafficking" means a human trafficking offense under Section
76-5-308
.
(9)
"Incapacitated individual" means an individual who is incapacitated, as defined in
Section
75-1-201
.
(10)
(a)
"Mail" means first class letters or flats delivered by the United States Postal
Service, including priority, express, and certified mail.
(b)
"Mail" does not include a package, parcel, periodical, or catalogue, unless the
package, parcel, periodical, or catalogue is clearly identifiable as:
(i)
being sent by a federal, state, or local agency or another government entity; or
(ii)
a pharmaceutical or medical item.
(11)
"Minor" means an individual who is younger than 18 years old.
(12)
"Notification form" means a form issued by the commission that a program participant
may send to a person demonstrating that the program participant is enrolled in the
program.
(13)
"Program" means the Safe at Home Program created in Section
77-38-602
.
(14)
"Program assistant" means an individual designated by the commission under Section
77-38-604
to assist an applicant or program participant.
(15)
"Program participant" means an individual who is enrolled under Section
77-38-606
by
the commission to participate in the program.
(16)
"Record" means the same as that term is defined in Section
63G-2-103
.
(17)
(a)
"Sexual offense" means:
(i)
a sexual offense under
Title 76, Chapter 5, Part 4, Sexual Offenses
; or
(ii)
a sexual exploitation offense under
Title 76, Chapter 5b, Part 2, Sexual
Exploitation
.
(b)
"Sexual offense" does not include an offense under:
(i)
Section
76-5-417
, enticing a minor;
(ii)
Section
76-5-418
, sexual battery;
(iii)
(i)
Section
76-5-419
, lewdness;
(iv)
(ii)
Section
76-5-420
, lewdness involving a child; or
(v)
(iii)
Section
76-5b-206
, failure to report child sexual abuse material by a
computer technician.
(18)
"Stalking" means the same as that term is defined in Section
76-5-106.5
.
(19)
"State or local government entity" means a county, municipality, higher education
institution, special district, special service district, or any other political subdivision of
the state or an administrative subunit of the executive, legislative, or judicial branch of
this state, including:
(a)
a law enforcement entity or any other investigative entity, agency, department,
division, bureau, board, or commission; or
(b)
an individual acting or purporting to act for or on behalf of a state or local entity,
including an elected or appointed public official.
(20)
"Victim" means a victim of abuse, domestic violence, human trafficking, stalking, or
a
sexual
assault
offense
.
Section 29. Section
78B-7-502
is amended to read:
78B-7-502
. Definitions.
As used in this part:
(1)
"Ex parte sexual violence protective order" means an order issued without notice to the
respondent under this part.
(2)
"Protective order" means:
(a)
a sexual violence protective order; or
(b)
an ex parte sexual violence protective order.
(3)
(a)
"Sexual violence" means the commission or the attempt to commit:
(i)
any sexual offense described in:
(A)
Title 76, Chapter 5, Part 4, Sexual Offenses
; or
(B)
Title 76, Chapter 5b, Part 2, Sexual Exploitation
;
(ii)
human trafficking for sexual exploitation under Section
76-5-308.1
; or
(iii)
aggravated human trafficking for forced sexual exploitation under Section
76-5-310
.
(b)
"Sexual violence" does not include an offense described in:
(i)
Section
76-5-417
, enticing a minor;
(ii)
Section
76-5-418
, sexual battery;
(iii)
(i)
Section
76-5-419
, lewdness;
(iv)
(ii)
Section
76-5-420
, lewdness involving a child; or
(v)
(iii)
Section
76-5b-206
, failure to report child sexual abuse material by a
computer technician.
(4)
"Sexual violence protective order" means an order issued under this part after a hearing
on the petition, of which the petitioner and respondent have been given notice.
Section 30. Section
78B-7-801
is amended to read:
78B-7-801
. Definitions.
As used in this part:
(1)
(a)
"Jail release agreement" means a written agreement that is entered into by an
individual who is arrested or issued a citation, regardless of whether the individual is
booked into jail:
(i)
under which the arrested or cited individual agrees to not engage in any of the
following:
(A)
telephoning, contacting, or otherwise communicating with the alleged victim,
directly or indirectly;
(B)
threatening or harassing the alleged victim; or
(C)
knowingly entering onto the premises of the alleged victim's residence or on
premises temporarily occupied by the alleged victim, unless, after a law
enforcement officer or the law enforcement officer's employing agency notifies
or attempts to notify the alleged victim, the individual enters the premises
while accompanied by a law enforcement officer for the purpose of retrieving
the individual's personal belongings; and
(ii)
that specifies other conditions of release from jail or arrest.
(b)
"Jail release agreement" includes a written agreement that includes the conditions
described in Section
(1)(a)
entered into by a minor who is taken into custody or
placed in detention or a shelter facility under Section
80-6-201
.
(2)
"Jail release court order" means a written court order that:
(a)
orders an arrested or cited individual not to engage in any of the following:
(i)
telephoning, contacting, or otherwise communicating with the alleged victim,
directly or indirectly;
(ii)
threatening or harassing the alleged victim; or
(iii)
knowingly entering onto the premises of the alleged victim's residence or on
premises temporarily occupied by the alleged victim, unless, after a law
enforcement officer or the law enforcement officer's employing agency notifies or
attempts to notify the alleged victim, the individual enters the premises while
accompanied by a law enforcement officer for the purpose of retrieving the
individual's personal belongings; and
(b)
specifies other conditions of release from jail.
(3)
"Minor" means the same as that term is defined in Section
80-1-102
.
(4)
"Offense against a child or vulnerable adult" means the commission or attempted
commission of an offense described in:
(a)
Section
76-5-109
, child abuse;
(b)
Section
76-5-109.2
, aggravated child abuse;
(c)
Section
76-5-109.3
, child abandonment;
(d)
Section
76-5-109.4
, child torture;
(e)
Section
76-5-110
, abuse or neglect of a child with a disability;
(f)
Section
76-5-111
, abuse of a vulnerable adult;
(g)
Section
76-5-111.2
, aggravated abuse of a vulnerable adult;
(h)
Section
76-5-111.3
, personal dignity exploitation of a vulnerable adult;
(i)
Section
76-5-111.4
, financial exploitation of a vulnerable adult;
(j)
Section
76-5-114
, commission of domestic violence in the presence of a child; or
(k)
Section
76-5-418
, sexual battery.
(5)
(a)
"Qualifying offense" means:
(i)
domestic violence;
(ii)
an offense against a child or vulnerable adult; or
(iii)
the commission or attempted commission of an offense described in
Section
76-5-418
, sexual battery, or
Title 76, Chapter 5, Part 4, Sexual Offenses
.
(b)
"Qualifying offense" does not include an offense described in:
(i)
Section
76-5-417
, enticing a minor;
(ii)
(i)
Section
76-5-419
, lewdness; or
(iii)
(ii)
Section
76-5-420
, lewdness involving a child.
Section 31. Section
80-1-102
is amended to read:
80-1-102
. Juvenile Code definitions.
Except as provided in Section
80-6-1103
, as used in this title:
(1)
(a)
"Abuse" means:
(i)
(A)
nonaccidental harm of a child;
(B)
threatened harm of a child;
(C)
sexual exploitation;
(D)
sexual abuse; or
(E)
human trafficking of a child in violation of Section
76-5-308.5
; or
(ii)
that a child's parent:
(A)
intentionally, knowingly, or recklessly causes the death of another parent of
the child;
(B)
is identified by a law enforcement agency as the primary suspect in an
investigation for intentionally, knowingly, or recklessly causing the death of
another parent of the child; or
(C)
is being prosecuted for or has been convicted of intentionally, knowingly, or
recklessly causing the death of another parent of the child.
(b)
"Abuse" does not include:
(i)
reasonable discipline or management of a child, including withholding privileges;
(ii)
conduct described in Section
76-2-401
; or
(iii)
the use of reasonable and necessary physical restraint or force on a child:
(A)
in self-defense;
(B)
in defense of others;
(C)
to protect the child; or
(D)
to remove a weapon in the possession of a child for any of the reasons
described in Subsections
(1)(b)(iii)(A)
through
(C)
.
(2)
"Abused child" means a child who has been subjected to abuse.
(3)
(a)
"Adjudication" means, except as provided in Subsection
(3)(b)
:
(i)
for a delinquency petition or criminal information under Chapter 6, Juvenile
Justice:
(A)
a finding by the juvenile court that the facts alleged in a delinquency petition
or criminal information alleging that a minor committed an offense have been
proved;
(B)
an admission by a minor in the juvenile court as described in Section
80-6-306
;
or
(C)
a plea of no contest by minor in the juvenile court; or
(ii)
for all other proceedings under this title, a finding by the juvenile court that the
facts alleged in the petition have been proved.
(b)
"Adjudication" does not include:
(i)
an admission by a minor described in Section
80-6-306
until the juvenile court
enters the minor's admission; or
(ii)
a finding of not competent to proceed in accordance with Section
80-6-402
.
(4)
(a)
"Adult" means an individual who is 18 years old or older.
(b)
"Adult" does not include an individual:
(i)
who is 18 years old or older; and
(ii)
who is a minor.
(5)
"Attorney guardian ad litem" means the same as that term is defined in Section
78A-2-801
.
(6)
"Board" means the Board of Juvenile Court Judges.
(7)
"Child" means, except as provided in Section
80-2-905
, an individual who is under 18
years old.
(8)
"Child and family plan" means a written agreement between a child's parents or
guardian and the Division of Child and Family Services as described in Section
80-3-307
.
(9)
"Child placing" means the same as that term is defined in Section
26B-2-101
.
(10)
"Child-placing agency" means the same as that term is defined in Section
26B-2-101
.
(11)
"Child protection team" means a team consisting of:
(a)
the child welfare caseworker assigned to the case;
(b)
if applicable, the child welfare caseworker who made the decision to remove the
child;
(c)
a representative of the school or school district where the child attends school;
(d)
if applicable, the law enforcement officer who removed the child from the home;
(e)
a representative of the appropriate Children's Justice Center, if one is established
within the county where the child resides;
(f)
if appropriate, and known to the division, a therapist or counselor who is familiar
with the child's circumstances;
(g)
if appropriate, a representative of law enforcement selected by the chief of police or
sheriff in the city or county where the child resides; and
(h)
any other individuals determined appropriate and necessary by the team coordinator
and chair.
(12)
(a)
"Chronic abuse" means repeated or patterned abuse.
(b)
"Chronic abuse" does not mean an isolated incident of abuse.
(13)
(a)
"Chronic neglect" means repeated or patterned neglect.
(b)
"Chronic neglect" does not mean an isolated incident of neglect.
(14)
"Clandestine laboratory operation" means the same as that term is defined in Section
58-37d-3
.
(15)
"Commit" or "committed" means, unless specified otherwise:
(a)
with respect to a child, to transfer legal custody; and
(b)
with respect to a minor who is at least 18 years old, to transfer custody.
(16)
"Community-based program" means a nonsecure residential or nonresidential program,
designated to supervise and rehabilitate juvenile offenders, that prioritizes the least
restrictive setting, consistent with public safety, and operated by or under contract with
the Division of Juvenile Justice and Youth Services.
(17)
"Community placement" means placement of a minor in a community-based program
described in Section
80-5-402
.
(18)
"Correctional facility" means:
(a)
a county jail; or
(b)
a secure correctional facility as defined in Section
64-13-1
.
(19)
"Criminogenic risk factors" means evidence-based factors that are associated with a
minor's likelihood of reoffending.
(20)
"Department" means the Department of Health and Human Services created in Section
26B-1-201
.
(21)
"Dependent child" or "dependency" means a child who is without proper care through
no fault of the child's parent, guardian, or custodian.
(22)
"Deprivation of custody" means transfer of legal custody by the juvenile court from a
parent or a previous custodian to another person, agency, or institution.
(23)
"Detention" means home detention or secure detention.
(24)
"Detention facility" means a facility, established by the Division of Juvenile Justice
and Youth Services in accordance with Section
80-5-501
, for minors held in detention.
(25)
"Detention risk assessment tool" means an evidence-based tool established under
Section
80-5-203
that:
(a)
assesses a minor's risk of failing to appear in court or reoffending before
adjudication; and
(b)
is designed to assist in making a determination of whether a minor shall be held in
detention.
(26)
"Developmental immaturity" means incomplete development in one or more domains
that manifests as a functional limitation in the minor's present ability to:
(a)
consult with counsel with a reasonable degree of rational understanding; and
(b)
have a rational as well as factual understanding of the proceedings.
(27)
"Disposition" means an order by a juvenile court, after the adjudication of a minor,
under Section
80-3-405
or
80-4-305
or Chapter 6, Part 7, Adjudication and Disposition.
(28)
"Educational neglect" means that, after receiving a notice of compulsory education
violation under Section
53G-6-202
, the parent or guardian fails to make a good faith
effort to ensure that the child receives an appropriate education.
(29)
"Educational series" means an evidence-based instructional series:
(a)
obtained at a substance abuse program that is approved by the Division of Integrated
Healthcare in accordance with Section
26B-5-104
; and
(b)
designed to prevent substance use or the onset of a mental health disorder.
(30)
"Emancipated" means the same as that term is defined in Section
80-7-102
.
(31)
"Evidence-based" means a program or practice that has had multiple randomized
control studies or a meta-analysis demonstrating that the program or practice is effective
for a specific population or has been rated as effective by a standardized program
evaluation tool.
(32)
"Forensic evaluator" means the same as that term is defined in Section
77-15-2
.
(33)
"Formal probation" means a minor is:
(a)
supervised in the community by, and reports to, a juvenile probation officer or an
agency designated by the juvenile court; and
(b)
subject to return to the juvenile court in accordance with Section
80-6-607
.
(34)
"Gender identity" means the same as that term is defined in Section
34A-5-102
.
(35)
"Group rehabilitation therapy" means psychological and social counseling of one or
more individuals in the group, depending upon the recommendation of the therapist.
(36)
"Guardian" means a person appointed by a court to make decisions regarding a minor,
including the authority to consent to:
(a)
marriage;
(b)
enlistment in the armed forces;
(c)
major medical, surgical, or psychiatric treatment; or
(d)
legal custody, if legal custody is not vested in another individual, agency, or
institution.
(37)
"Guardian ad litem" means the same as that term is defined in Section
78A-2-801
.
(38)
"Harm" means:
(a)
physical or developmental injury or damage;
(b)
emotional damage that results in a serious impairment in the child's growth,
development, behavior, or psychological functioning;
(c)
sexual abuse; or
(d)
sexual exploitation.
(39)
"Home detention" means placement of a minor:
(a)
if prior to a disposition, in the minor's home, or in a surrogate home with the consent
of the minor's parent, guardian, or custodian, under terms and conditions established
by the Division of Juvenile Justice and Youth Services or the juvenile court; or
(b)
if after a disposition, and in accordance with Section
78A-6-353
or
80-6-704
, in the
minor's home, or in a surrogate home with the consent of the minor's parent,
guardian, or custodian, under terms and conditions established by the Division of
Juvenile Justice and Youth Services or the juvenile court.
(40)
(a)
"Incest" means engaging in sexual intercourse with an individual whom the
perpetrator knows to be the perpetrator's ancestor, descendant, brother, sister, uncle,
aunt, nephew, niece, or first cousin.
(b)
"Incest" includes:
(i)
blood relationships of the whole or half blood, regardless of whether the
relationship is legally recognized;
(ii)
relationships of parent and child by adoption; and
(iii)
relationships of stepparent and stepchild while the marriage creating the
relationship of a stepparent and stepchild exists.
(41)
"Indian child" means the same as that term is defined in 25 U.S.C. Sec. 1903.
(42)
"Indian tribe" means the same as that term is defined in 25 U.S.C. Sec. 1903.
(43)
"Indigent defense service provider" means the same as that term is defined in Section
78B-22-102
.
(44)
"Indigent defense services" means the same as that term is defined in Section
78B-22-102
.
(45)
"Indigent individual" means the same as that term is defined in Section
78B-22-102
.
(46)
(a)
"Intake probation" means a minor is:
(i)
monitored by a juvenile probation officer; and
(ii)
subject to return to the juvenile court in accordance with Section
80-6-607
.
(b)
"Intake probation" does not include formal probation.
(47)
"Intellectual disability" means a significant subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior that constitutes a substantial
limitation to the individual's ability to function in society.
(48)
"Juvenile offender" means:
(a)
a serious youth offender; or
(b)
a youth offender.
(49)
"Juvenile probation officer" means a probation officer appointed under Section
78A-6-205
.
(50)
"Juvenile receiving center" means a nonsecure, nonresidential program established by
the Division of Juvenile Justice and Youth Services, or under contract with the Division
of Juvenile Justice and Youth Services, that is responsible for minors taken into
temporary custody under Section
80-6-201
.
(51)
"Legal custody" means a relationship embodying:
(a)
the right to physical custody of the minor;
(b)
the right and duty to protect, train, and discipline the minor;
(c)
the duty to provide the minor with food, clothing, shelter, education, and ordinary
medical care;
(d)
the right to determine where and with whom the minor shall live; and
(e)
the right, in an emergency, to authorize surgery or other extraordinary care.
(52)
"Licensing Information System" means the Licensing Information System maintained
by the Division of Child and Family Services under Section
80-2-1002
.
(53)
"Management Information System" means the Management Information System
developed by the Division of Child and Family Services under Section
80-2-1001
.
(54)
"Mental illness" means:
(a)
a psychiatric disorder that substantially impairs an individual's mental, emotional,
behavioral, or related functioning; or
(b)
the same as that term is defined in:
(i)
the current edition of the Diagnostic and Statistical Manual of Mental Disorders
published by the American Psychiatric Association; or
(ii)
the current edition of the International Statistical Classification of Diseases and
Related Health Problems.
(55)
"Minor" means, except as provided in Sections
80-6-501
,
80-6-901
, and
80-7-102
:
(a)
a child; or
(b)
an individual:
(i)
(A)
who is at least 18 years old and younger than 21 years old; and
(B)
for whom the Division of Child and Family Services has been specifically
ordered by the juvenile court to provide services because the individual was an
abused, neglected, or dependent child or because the individual was
adjudicated for an offense;
(ii)
(A)
who is at least 18 years old and younger than 25 years old; and
(B)
whose case is under the jurisdiction of the juvenile court in accordance with
Subsection
78A-6-103
(1)(b); or
(iii)
(A)
who is at least 18 years old and younger than 21 years old; and
(B)
whose case is under the jurisdiction of the juvenile court in accordance with
Subsection
78A-6-103(1)(c)
.
(56)
"Mobile crisis outreach team" means the same as that term is defined in Section
26B-5-101
.
(57)
"Molestation" means that an individual, with the intent to arouse or gratify the sexual
desire of any individual, touches the anus, buttocks, pubic area, or genitalia of any child,
or the breast of a female child, or takes indecent liberties with a child as defined in
Section
76-5-401.1
.
(58)
(a)
"Neglect" means action or inaction causing:
(i)
abandonment of a child, except as provided in Chapter 4, Part 5, Safe
Relinquishment of a Newborn Child;
(ii)
lack of proper parental care of a child by reason of the fault or habits of the
parent, guardian, or custodian;
(iii)
failure or refusal of a parent, guardian, or custodian to provide proper or
necessary subsistence or medical care, or any other care necessary for the child's
health, safety, morals, or well-being;
(iv)
a child to be at risk of being neglected or abused because another child in the
same home is neglected or abused;
(v)
abandonment of a child through an unregulated child custody transfer under
Section
81-14-203
; or
(vi)
educational neglect.
(b)
"Neglect" does not include:
(i)
a parent or guardian legitimately practicing religious beliefs and who, for that
reason, does not provide specified medical treatment for a child;
(ii)
a health care decision made for a child by the child's parent or guardian, unless
the state or other party to a proceeding shows, by clear and convincing evidence,
that the health care decision is not reasonable and informed;
(iii)
a parent or guardian exercising the right described in Section
80-3-304
; or
(iv)
permitting a child, whose basic needs are met and who is of sufficient age and
maturity to avoid harm or unreasonable risk of harm, to engage in independent
activities, including:
(A)
traveling to and from school, including by walking, running, or bicycling;
(B)
traveling to and from nearby commercial or recreational facilities;
(C)
engaging in outdoor play;
(D)
remaining in a vehicle unattended, except under the conditions described in
Subsection
76-5-115(2)
;
(E)
remaining at home unattended; or
(F)
engaging in a similar independent activity.
(59)
"Neglected child" means a child who has been subjected to neglect.
(60)
"Nonjudicial adjustment" means closure of the case by the assigned juvenile probation
officer, without an adjudication of the minor's case under Section
80-6-701
, upon the
consent in writing of:
(a)
the assigned juvenile probation officer; and
(b)
(i)
the minor; or
(ii)
the minor and the minor's parent, guardian, or custodian.
(61)
"Not competent to proceed" means that a minor, due to a mental illness, intellectual
disability or related condition, or developmental immaturity, lacks the ability to:
(a)
understand the nature of the proceedings against the minor or of the potential
disposition for the offense charged; or
(b)
consult with counsel and participate in the proceedings against the minor with a
reasonable degree of rational understanding.
(62)
(a)
"Parent" means, except as provided in Section
80-3-302
, an individual with a
parent-child relationship to a minor under Section
81-5-201
.
(b)
"Parent" includes the minor's noncustodial parent as defined in Section
81-1-101
.
(63)
"Parole" means a conditional release of a juvenile offender from residency in secure
care to live outside of secure care under the supervision of the Division of Juvenile
Justice and Youth Services, or another person designated by the Division of Juvenile
Justice and Youth Services.
(64)
"Physical abuse" means abuse that results in physical injury or damage to a child.
(65)
(a)
"Probation" means a legal status created by court order, following an
adjudication under Section
80-6-701
, whereby the minor is permitted to remain in the
minor's home under prescribed conditions.
(b)
"Probation" includes intake probation or formal probation.
(66)
"Prosecuting attorney" means:
(a)
the attorney general and any assistant attorney general;
(b)
any district attorney or deputy district attorney;
(c)
any county attorney or assistant county attorney; and
(d)
any other attorney authorized to commence an action on behalf of the state.
(67)
"Protective custody" means the shelter of a child by the Division of Child and Family
Services from the time the child is removed from the home until the earlier of:
(a)
the day on which the shelter hearing is held under Section
80-3-301
; or
(b)
the day on which the child is returned home.
(68)
"Protective services" means expedited services that are provided:
(a)
in response to evidence of neglect, abuse, or dependency of a child;
(b)
to a cohabitant who is neglecting or abusing a child, in order to:
(i)
help the cohabitant develop recognition of the cohabitant's duty of care and of the
causes of neglect or abuse; and
(ii)
strengthen the cohabitant's ability to provide safe and acceptable care; and
(c)
in cases where the child's welfare is endangered:
(i)
to bring the situation to the attention of the appropriate juvenile court and law
enforcement agency;
(ii)
to cause a protective order to be issued for the protection of the child, when
appropriate; and
(iii)
to protect the child from the circumstances that endanger the child's welfare
including, when appropriate:
(A)
removal from the child's home;
(B)
placement in substitute care; and
(C)
petitioning the court for termination of parental rights.
(69)
"Protective supervision" means a legal status created by court order, following an
adjudication on the ground of abuse, neglect, or dependency, whereby:
(a)
the minor is permitted to remain in the minor's home; and
(b)
supervision and assistance to correct the abuse, neglect, or dependency is provided
by an agency designated by the juvenile court.
(70)
(a)
"Related condition" means a condition that:
(i)
is found to be closely related to intellectual disability;
(ii)
results in impairment of general intellectual functioning or adaptive behavior
similar to that of an intellectually disabled individual;
(iii)
is likely to continue indefinitely; and
(iv)
constitutes a substantial limitation to the individual's ability to function in society.
(b)
"Related condition" does not include mental illness, psychiatric impairment, or
serious emotional or behavioral disturbance.
(71)
(a)
"Residual parental rights and duties" means the rights and duties remaining with
a parent after legal custody or guardianship, or both, have been vested in another
person or agency, including:
(i)
the responsibility for support;
(ii)
the right to consent to adoption;
(iii)
the right to determine the child's religious affiliation; and
(iv)
the right to reasonable parent-time unless restricted by the court.
(b)
If no guardian has been appointed, "residual parental rights and duties" includes the
right to consent to:
(i)
marriage;
(ii)
enlistment; and
(iii)
major medical, surgical, or psychiatric treatment.
(72)
"Runaway" means a child, other than an emancipated child, who willfully leaves the
home of the child's parent or guardian, or the lawfully prescribed residence of the child,
without permission.
(73)
"Secure care" means placement of a minor, who is committed to the Division of
Juvenile Justice and Youth Services for rehabilitation, in a facility operated by, or under
contract with, the Division of Juvenile Justice and Youth Services, that provides 24-hour
supervision and confinement of the minor.
(74)
"Secure care facility" means a facility, established in accordance with Section
80-5-503
,
for juvenile offenders in secure care.
(75)
"Secure detention" means temporary care of a minor who requires secure custody in a
physically restricting facility operated by, or under contract with, the Division of
Juvenile Justice and Youth Services:
(a)
before disposition of an offense that is alleged to have been committed by the minor;
or
(b)
under Section
80-6-704
.
(76)
"Serious youth offender" means an individual who:
(a)
is at least 14 years old, but under 25 years old;
(b)
committed a felony listed in Subsection
80-6-503(1)
and the continuing jurisdiction
of the juvenile court was extended over the individual's case until the individual was
25 years old in accordance with Section
80-6-605
; and
(c)
is committed by the juvenile court to the Division of Juvenile Justice and Youth
Services for secure care under Sections
80-6-703
and
80-6-705
.
(77)
"Severe abuse" means abuse that causes or threatens to cause serious harm to a child.
(78)
"Severe neglect" means neglect that causes or threatens to cause serious harm to a
child.
(79)
(a)
"Severe type of child abuse or neglect" means, except as provided in Subsection
(79)(b)
:
(i)
if committed by an individual who is 18 years old or older:
(A)
chronic abuse;
(B)
severe abuse;
(C)
sexual abuse;
(D)
sexual exploitation;
(E)
abandonment;
(F)
chronic neglect; or
(G)
severe neglect; or
(ii)
if committed by an individual who is under 18 years old:
(A)
causing serious injury, as defined in Subsection
76-5-109(1)
, to another child
that indicates a significant risk to other children; or
(B)
sexual behavior with or upon another child that indicates a significant risk to
other children.
(b)
"Severe type of child abuse or neglect" does not include:
(i)
the use of reasonable and necessary physical restraint by an educator in
accordance with Section
53G-8-301
or Section
76-2-401
;
(ii)
an individual's conduct that is justified under Section
76-2-401
or constitutes the
use of reasonable and necessary physical restraint or force in self-defense or
otherwise appropriate to the circumstances to obtain possession of a weapon or
other dangerous object in the possession or under the control of a child or to
protect the child or another individual from physical injury; or
(iii)
a health care decision made for a child by a child's parent or guardian, unless,
subject to Subsection
(79)(c)
, the state or other party to the proceeding shows, by
clear and convincing evidence, that the health care decision is not reasonable and
informed.
(c)
Subsection
(79)(b)(iii)
does not prohibit a parent or guardian from exercising the
right to obtain a second health care opinion.
(80)
(a)
"Sexual abuse" means:
(i)
an act or attempted act of sexual intercourse, sodomy, incest, or molestation by an
adult directed towards a child;
(ii)
an act or attempted act of sexual intercourse, sodomy, incest, or molestation
committed by a child towards another child if:
(A)
there is an indication of force or coercion;
(B)
the children are related, as described in Subsection
(40)
, including siblings by
marriage while the marriage exists or by adoption; or
(C)
the act or attempted act constitutes unlawful sexual activity as described in
Section
76-5-401.3
.
(iii)
engaging in any conduct with a child that would constitute an offense under any
of the following, regardless of whether the individual who engages in the conduct
is actually charged with, or convicted of, the offense:
(A)
Title 76, Chapter 5, Part 4, Sexual Offenses;
(B)
child bigamy, Section
76-7-101.5
;
(C)
incest, Section
76-7-102
;
(D)
voyeurism, Section
76-12-306
;
(E)
recorded or photographed voyeurism, Section
76-12-307
; or
(F)
distribution of images obtained through voyeurism, Section
76-12-308
; or
(iv)
subjecting a child to participate in or threatening to subject a child to participate
in a sexual relationship, regardless of whether that sexual relationship is part of a
legal or cultural marriage.
(b)
"Sexual abuse" does not include engaging in any conduct with a child that would
constitute an offense described in
:

(i)
Section
76-5-401
, unlawful sexual activity with a minor, if the alleged
perpetrator of the offense is a minor
; or
.
(ii)
Section
76-5-417
, enticing a minor.
(81)
"Sexual exploitation" means knowingly:
(a)
employing, using, persuading, inducing, enticing, or coercing any child to:
(i)
pose in the nude for the purpose of sexual arousal of any individual; or
(ii)
engage in any sexual or simulated sexual conduct for the purpose of
photographing, filming, recording, or displaying in any way the sexual or
simulated sexual conduct;
(b)
displaying, distributing, possessing for the purpose of distribution, or selling material
depicting a child:
(i)
in the nude, for the purpose of sexual arousal of any individual; or
(ii)
engaging in sexual or simulated sexual conduct; or
(c)
engaging in any conduct that would constitute an offense under Section
76-5b-201
,
sexual exploitation of a minor, or Section
76-5b-201.1
, aggravated sexual
exploitation of a minor, regardless of whether the individual who engages in the
conduct is actually charged with, or convicted of, the offense.
(82)
"Shelter" means the temporary care of a child in a physically unrestricted facility
pending a disposition or transfer to another jurisdiction.
(83)
"Shelter facility" means a nonsecure facility that provides shelter for a minor.
(84)
"Significant risk" means a risk of harm that is determined to be significant in
accordance with risk assessment tools and rules established by the Division of Child and
Family Services in accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, that focus on:
(a)
age;
(b)
social factors;
(c)
emotional factors;
(d)
sexual factors;
(e)
intellectual factors;
(f)
family risk factors; and
(g)
other related considerations.
(85)
"Single criminal episode" means the same as that term is defined in Section
76-1-401
.
(86)
"Status offense" means an offense that would not be an offense but for the age of the
offender.
(87)
"Substance abuse" means, except as provided in Section
80-2-603
, the misuse or
excessive use of alcohol or other drugs or substances.
(88)
"Substantiated" or "substantiation" means a judicial finding based on a preponderance
of the evidence, and separate consideration of each allegation made or identified in the
case, that abuse, neglect, or dependency occurred.
(89)
"Substitute care" means:
(a)
the placement of a minor in a family home, group care facility, or other placement
outside the minor's own home, either at the request of a parent or other responsible
relative, or upon court order, when it is determined that continuation of care in the
minor's own home would be contrary to the minor's welfare;
(b)
services provided for a minor in the protective custody of the Division of Child and
Family Services, or a minor in the temporary custody or custody of the Division of
Child and Family Services, as those terms are defined in Section
80-2-102
; or
(c)
the licensing and supervision of a substitute care facility.
(90)
"Supported" means a finding by the Division of Child and Family Services based on
the evidence available at the completion of an investigation, and separate consideration
of each allegation made or identified during the investigation, that there is a reasonable
basis to conclude that abuse, neglect, or dependency occurred.
(91)
"Termination of parental rights" means the permanent elimination of all parental rights
and duties, including residual parental rights and duties, by court order.
(92)
"Therapist" means:
(a)
an individual employed by a state division or agency for the purpose of conducting
psychological treatment and counseling of a minor in the division's or agency's
custody; or
(b)
any other individual licensed or approved by the state for the purpose of conducting
psychological treatment and counseling.
(93)
"Threatened harm" means actions, inactions, or credible verbal threats, indicating that
the child is at an unreasonable risk of harm or neglect.
(94)
"Torture" means:
(a)
the infliction of a serious injury upon a child in an exceptionally cruel or
exceptionally depraved manner that causes the child to experience extreme physical
or psychological pain or anguish; or
(b)
the infliction of a serious injury, or more than one serious injury, upon a child as part
of a course of conduct or over a prolonged period of time.
(95)
"Ungovernable" means a child in conflict with a parent or guardian, and the conflict:
(a)
results in behavior that is beyond the control or ability of the child, or the parent or
guardian, to manage effectively;
(b)
poses a threat to the safety or well-being of the child, the child's family, or others; or
(c)
results in the situations described in Subsections
(95)(a)
and
(b)
.
(96)
"Unsubstantiated" means a judicial finding that there is insufficient evidence to
conclude that abuse, neglect, or dependency occurred.
(97)
"Unsupported" means a finding by the Division of Child and Family Services at the
completion of an investigation, after the day on which the Division of Child and Family
Services concludes the alleged abuse, neglect, or dependency is not without merit, that
there is insufficient evidence to conclude that abuse, neglect, or dependency occurred.
(98)
"Validated risk and needs assessment" means an evidence-based tool that assesses a
minor's risk of reoffending and a minor's criminogenic needs.
(99)
"Without merit" means a finding at the completion of an investigation by the Division
of Child and Family Services, or a judicial finding, that the alleged abuse, neglect, or
dependency did not occur, or that the alleged perpetrator was not responsible for the
abuse, neglect, or dependency.
(100)
"Youth offender" means an individual who is:
(a)
at least 12 years old, but under 21 years old; and
(b)
committed by the juvenile court to the Division of Juvenile Justice and Youth
Services for secure care under Sections
80-6-703
and
80-6-705
.
Section 32. Section
80-6-304
is amended to read:
80-6-304
. Nonjudicial adjustments. -- Requirement to seek legal counsel before
declination.
(1)
For a nonjudicial adjustment, the juvenile probation officer may require a minor to:
(a)
pay a financial penalty of no more than $250 to the juvenile court, subject to the
terms established under Subsection
(5)
;
(b)
pay restitution to any victim;
(c)
complete community or compensatory service;
(d)
attend counseling or treatment with an appropriate provider;
(e)
attend substance abuse treatment or counseling;
(f)
comply with specified restrictions on activities or associations;
(g)
attend victim-offender mediation if requested by the victim; and
(h)
comply with any other reasonable action that is in the interest of the minor, the
community, or the victim.
(2)
(a)
Within seven days of receiving a referral that appears to be eligible for a
nonjudicial adjustment in accordance with Section
80-6-303.5
, the juvenile probation
officer shall provide an initial notice to reasonably identifiable and locatable victims
of the offense contained in the referral.
(b)
The victim shall be responsible to provide to the juvenile probation officer upon
request:
(i)
invoices, bills, receipts, and any other evidence of injury, loss of earnings, and
out-of-pocket loss;
(ii)
documentation and evidence of compensation or reimbursement from an
insurance company or an agency of the state, any other state, or the federal
government received as a direct result of the crime for injury, loss of earnings, or
out-of-pocket loss; and
(iii)
proof of identification, including home and work address and telephone numbers.
(c)
The inability, failure, or refusal of the victim to provide all or part of the requested
information shall result in the juvenile probation officer determining restitution based
on the best information available.
(3)
The juvenile probation officer may not predicate acceptance of an offer of a nonjudicial
adjustment on an admission of guilt.
(4)
(a)
A minor may not decline to enter into a nonjudicial adjustment without first being
advised of their right to consult with counsel, subject to the requirements of this
section.
(b)
If a minor seeks to decline a nonjudicial adjustment, the juvenile probation officer
shall inform the minor of:
(i)
the minor's right to consult with counsel; and
(ii)
the availability of resources for the minor to receive legal advice provided by the
Office of Indigent Defense Services created in Section
78B-22-451
.
(c)
If a minor seeks to decline a nonjudicial adjustment, and also declines to seek the
advice of counsel after being informed as required under Subsection
(4)(b)
, the
juvenile probation officer shall:
(i)
sign an acknowledgment that the juvenile probation officer provided the minor
with the information required by Subsection
(4)(b)
;
(ii)
have the minor sign an acknowledgment that the minor received the information
required by Subsection
(4)(b)
and knowingly and voluntarily declined to seek the
advice of counsel; and
(iii)
permit the minor to decline the nonjudicial adjustment.
(d)
No provision of this section affects a court's obligation to ensure a minor's right to
counsel in the event a petition is filed.
(5)
(a)
The juvenile probation officer may not deny a minor an offer of a nonjudicial
adjustment due to a minor's inability to pay a financial penalty under Subsection
(1)
.
(b)
The juvenile probation officer shall base a fee, fine, or the restitution for a
nonjudicial adjustment under Subsection
(1)
upon the ability of the minor's family to
pay as determined by a statewide sliding scale developed in accordance with Section
63M-7-208
.
(6)
(a)
A nonjudicial adjustment may not extend for more than 90 days, unless a juvenile
court judge extends the nonjudicial adjustment for an additional 90 days.
(b)
A juvenile court judge may extend a nonjudicial adjustment beyond the 180 days
permitted under Subsection
(6)(a)
:
(i)
for a minor who is:
(A)
offered a nonjudicial adjustment for a sexual offense under
Title 76, Chapter
5, Part 4, Sexual Offenses
, that the minor committed before the minor was 12
years old
, other than an offense under Section
76-5-417
,
76-5-418
,
76-5-419
,
or
76-5-420
; or
(B)
referred to a prosecuting attorney for a sexual offense under
Title 76, Chapter
5, Part 4, Sexual Offenses
, that the minor committed before the minor was 12
years old
, other than an offense under Section
76-5-417
,
76-5-418
,
76-5-419
,
or
76-5-420
; and
(ii)
the judge determines that:
(A)
the nonjudicial adjustment requires specific treatment for the sexual offense;
(B)
the treatment cannot be completed within 180 days after the day on which the
minor entered into the nonjudicial adjustment; and
(C)
the treatment is necessary based on a clinical assessment that is
developmentally appropriate for the minor.
(c)
If a juvenile court judge extends a minor's nonjudicial adjustment under Subsection
(6)(b)
, the judge may extend the nonjudicial adjustment until the minor completes the
specific treatment, but the judge may only grant each extension for 90 days at a time.
(7)
If a minor violates Section
76-9-1106
, the minor may be required to pay a fine or
penalty and participate in a court-approved tobacco education program with a
participation fee.
Section 33. Section
81-9-202
is amended to read:
81-9-202
. Advisory guidelines for a custody and parent-time arrangement.
(1)
In addition to the parent-time schedules provided in Sections
81-9-302
and
81-9-304
,
the following advisory guidelines are suggested to govern a custody and parent-time
arrangement between parents.
(2)
A parent-time schedule mutually agreed upon by both parents is preferable to a
court-imposed solution.
(3)
A parent-time schedule shall be used to maximize the continuity and stability of the
minor child's life.
(4)
Each parent shall give special consideration to make the minor child available to attend
family functions including funerals, weddings, family reunions, religious holidays,
important ceremonies, and other significant events in the life of the minor child or in the
life of either parent which may inadvertently conflict with the parent-time schedule.
(5)
(a)
The court shall determine the responsibility for the pick up, delivery, and return of
the minor child when the parent-time order is entered.
(b)
The court may change the responsibility described in Subsection
(5)(a)
at any time a
subsequent modification is made to the parent-time order.
(c)
If the noncustodial parent will be providing transportation, the custodial parent shall:
(i)
have the minor child ready for parent-time at the time the minor child is to be
picked up; and
(ii)
be present at the custodial home or make reasonable alternate arrangements to
receive the minor child at the time the minor child is returned.
(d)
If the custodial parent will be transporting the minor child, the noncustodial parent
shall:
(i)
be at the appointed place at the time the noncustodial parent is to receive the
minor child; and
(ii)
have the minor child ready to be picked up at the appointed time and place or
have made reasonable alternate arrangements for the custodial parent to pick up
the minor child.
(6)
A parent may not interrupt regular school hours for a school-age minor child for the
exercise of parent-time.
(7)
The court may:
(a)
make alterations in the parent-time schedule to reasonably accommodate the work
schedule of both parents; and
(b)
increase the parent-time allowed to the noncustodial parent but may not diminish the
standardized parent-time provided in Sections
81-9-302
and
81-9-304
.
(8)
The court may make alterations in the parent-time schedule to reasonably accommodate
the distance between the parties and the expense of exercising parent-time.
(9)
A parent may not withhold parent-time or child support due to the other parent's failure
to comply with a court-ordered parent-time schedule.
(10)
(a)
The custodial parent shall notify the noncustodial parent within 24 hours of
receiving notice of all significant school, social, sports, and community functions in
which the minor child is participating or being honored.
(b)
The noncustodial parent is entitled to attend and participate fully in the functions
described in Subsection
(10)(a)
.
(c)
The noncustodial parent shall have access directly to all school reports including
preschool and daycare reports and medical records.
(d)
A parent shall immediately notify the other parent in the event of a medical
emergency.
(11)
Each parent shall provide the other with the parent's current address and telephone
number, email address, and other virtual parent-time access information within 24 hours
of any change.
(12)
(a)
Each parent shall permit and encourage, during reasonable hours, reasonable and
uncensored communications with the minor child, in the form of mail privileges and
virtual parent-time if the equipment is reasonably available.
(b)
If the parents cannot agree on whether the equipment is reasonably available, the
court shall decide whether the equipment for virtual parent-time is reasonably
available by taking into consideration:
(i)
the best interests of the minor child;
(ii)
each parent's ability to handle any additional expenses for virtual parent-time; and
(iii)
any other factors the court considers material.
(13)
(a)
Parental care is presumed to be better care for the minor child than surrogate care.
(b)
The court shall encourage the parties to cooperate in allowing the noncustodial
parent, if willing and able to transport the minor child, to provide the child care.
(c)
Child care arrangements existing during the marriage are preferred as are child care
arrangements with nominal or no charge.
(14)
Each parent shall:
(a)
provide all surrogate care providers with the name, current address, and telephone
number of the other parent; and
(b)
provide the noncustodial parent with the name, current address, and telephone
number of all surrogate care providers unless the court for good cause orders
otherwise.
(15)
(a)
Each parent is entitled to an equal division of major religious holidays celebrated
by the parents.
(b)
The parent who celebrates a religious holiday that the other parent does not celebrate
shall have the right to be together with the minor child on the religious holiday.
(16)
If the minor child is on a different parent-time schedule than a sibling, based on
Sections
81-9-302
and
81-9-304
, the parents should consider if an upward deviation for
parent-time with all the minor children so that parent-time is uniform between school
aged and nonschool aged children, is appropriate.
(17)
(a)
When one or both parents are servicemembers or contemplating joining a
uniformed service, the parents should resolve issues of custodial responsibility in the
event of deployment as soon as practicable through reaching a voluntary agreement
pursuant to Section
81-10-201
or through court order obtained pursuant to this part.
(b)
Service members shall ensure their family care plan reflects orders and agreements
entered and filed pursuant to Chapter 10, Uniform Deployed Parents Custody,
Parent-time, and Visitation Act.
(18)
A parent shall immediately notify the other parent if:
(a)
the parent resides with an individual or provides an individual with access to the
minor child; and
(b)
the parent knows that the individual:
(i)
is required to register as a sex offender, a kidnap offender, or a child abuse
offender for an offense committed against a minor child under Title 53, Chapter 29,
Sex, Kidnap, and Child Abuse Offender Registry; or
(ii)
has been convicted of:
(A)
a child abuse offense under Section
76-5-109
,
76-5-109.2
,
76-5-109.3
,
76-5-109.4
,
76-5-114
, or
76-5-208
;
(B)
a sexual offense against a minor child under Title 76, Chapter 5, Part 4, Sexual
Offenses
, other than an offense under Section
76-5-417
,
76-5-418
, or
76-5-419
;
(C)
an offense for kidnapping or human trafficking of a minor child under Title
76, Chapter 5, Part 3, Kidnapping, Trafficking, and Smuggling;
(D)
a sexual exploitation offense against a minor child under Title 76, Chapter 5b,
Sexual Exploitation Act; or
(E)
an offense that is substantially similar to an offense under Subsections
(18)(b)(ii)(A)
through
(D)
.
(19)
(a)
For emergency purposes, whenever the minor child travels with a parent, the
parent shall provide the following information to the other parent:
(i)
an itinerary of travel dates;
(ii)
destinations;
(iii)
places where the minor child or traveling parent can be reached; and
(iv)
the name and telephone number of an available third person who would be
knowledgeable of the minor child's location.
(b)
Unchaperoned travel of a minor child under the age of five years is not
recommended.
Section 34. Section
81-9-208
is amended to read:
81-9-208
. Modification or termination of a custody or parent-time order --
Noncompliance with a parent-time order.
(1)
The court has continuing jurisdiction to make subsequent changes to modify:
(a)
custody of a minor child if there is a showing of a substantial and material change in
circumstances since the entry of the order; and
(b)
parent-time for a minor child if there is a showing that there is a change in
circumstances since the entry of the order.
(2)
A substantial and material change in circumstances under Subsection
(1)(a)
includes a
showing by a parent that the other parent:
(a)
resides with an individual or provides an individual with access to the minor child;
and
(b)
knows that the individual:
(i)
is required to register as a sex offender, a kidnap offender, or a child abuse
offender for an offense committed against a minor child under Title 53, Chapter 29,
Sex, Kidnap, and Child Abuse Offender Registry; or
(ii)
has been convicted of:
(A)
a child abuse offense under Section
76-5-109
,
76-5-109.2
,
76-5-109.3
,
76-5-109.4
,
76-5-114
, or
76-5-208
;
(B)
a sexual offense against a minor child under Title 76, Chapter 5, Part 4, Sexual
Offenses
, other than an offense under Section
76-5-417
,
76-5-418
, or
76-5-419
;
(C)
an offense for kidnapping or human trafficking of a minor child under Title
76, Chapter 5, Part 3, Kidnapping, Trafficking, and Smuggling;
(D)
a sexual exploitation offense against a minor child under Title 76, Chapter 5b,
Sexual Exploitation Act; or
(E)
an offense that is substantially similar to an offense under Subsections
(2)(b)(ii)(A)
through
(D)
.
(3)
On the petition of one or both of the parents, or the joint legal or physical custodians if
they are not the parents, the court may, after a hearing, modify or terminate an order that
established joint legal custody or joint physical custody if:
(a)
the verified petition or accompanying affidavit initially alleges that admissible
evidence will show that there has been a substantial and material change in the
circumstances of the minor child or one or both parents or joint legal or physical
custodians since the entry of the order to be modified;
(b)
a modification of the terms and conditions of the order would be an improvement for
and in the best interest of the minor child; and
(c)
(i)
both parents have complied in good faith with the dispute resolution procedure
in accordance with Subsection
81-9-205(8)
; or
(ii)
if no dispute resolution procedure is contained in the order that established joint
legal custody or joint physical custody, the court orders the parents to participate
in a dispute resolution procedure in accordance with Subsection
81-9-205(13)

unless the parents certify that, in good faith, they have used a dispute resolution
procedure to resolve their dispute.
(4)
(a)
In determining whether the best interest of a minor child will be served by either
modifying or terminating the joint legal custody or joint physical custody order, the
court shall, in addition to other factors the court considers relevant, consider the
factors described in Sections
81-9-204
and
81-9-205
.
(b)
A court order modifying or terminating an existing joint legal custody or joint
physical custody order shall contain written findings that:
(i)
a substantial and material change of circumstance has occurred; and
(ii)
a modification of the terms and conditions of the order would be an improvement
for and in the best interest of the minor child.
(c)
The court shall give substantial weight to the existing joint legal custody or joint
physical custody order when the minor child is thriving, happy, and well-adjusted.
(5)
The court shall, in every case regarding a petition for termination of a joint legal
custody or joint physical custody order, consider reasonable alternatives to preserve the
existing order in accordance with Section
81-9-204
.
(6)
The court may modify the terms and conditions of the existing order in accordance with
this chapter and may order the parents to file a parenting plan in accordance with
Section
81-9-203
.
(7)
A parent requesting a modification from sole custody to joint legal custody or joint
physical custody or both, or any other type of shared parenting arrangement, shall file
and serve a proposed parenting plan with the petition to modify in accordance with
Section
81-9-203
.
(8)
If an issue before the court involves custodial responsibility in the event of deployment
of one or both parents who are service members, and the service member has not yet
been notified of deployment, the court shall resolve the issue based on the standards in
Sections
81-10-306
through
81-10-309
.
(9)
If the court finds that an action to modify custody or parent-time is filed or answered
frivolously and, in a manner, designed to harass the other party, the court shall assess
attorney fees as costs against the offending party.
(10)
If a petition to modify custody or parent-time provisions of a court order is made and
denied, the court shall order the petitioner to pay the reasonable attorney fees expended
by the prevailing party in that action if the court determines that the petition was without
merit and not asserted or defended against in good faith.
(11)
If a motion or petition alleges noncompliance with a parent-time order by a parent, or a
visitation order by a grandparent or other member of the immediate family where a
visitation or parent-time right has been previously granted by the court, the court:
(a)
may award to the prevailing party:
(i)
actual attorney fees incurred;
(ii)
the costs incurred by the prevailing party because of the other party's failure to
provide or exercise court-ordered visitation or parent-time, including:
(A)
court costs;
(B)
child care expenses;
(C)
transportation expenses actually incurred;
(D)
lost wages, if ascertainable; or
(E)
counseling for a parent or a minor child if ordered or approved by the court; or
(iii)
any other appropriate equitable remedy; and
(b)
shall award reasonable make-up parent-time to the prevailing party, unless make-up
parent-time is not in the best interest of the minor child.
Section 35.
Effective Date.
This bill takes effect on
January 1, 2027
.
3-12-26 10:57 AM