Enrolled Copy H.B. 78
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Criminal Offenses Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Matthew H. Gwynn
Senate Sponsor: Brady Brammer
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LONG TITLE
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General Description:
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This bill addresses sentencing and criminal procedures for certain criminal offenses.
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Highlighted Provisions:
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This bill:
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▸ requires a prosecutor, when reducing the level of certain crimes in an information or as
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part of plea deal, to explain on the record why the prosecutor is seeking the reduction;
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▸ requires an indeterminate prison term to be imposed, with exceptions, for certain attempt
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convictions;
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▸ increases penalties for the crime of aggravated child abuse; and
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▸ makes technical and conforming changes.
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Money Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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76-5-109.2, as enacted by Laws of Utah 2022, Chapter 181
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76-5-406.5, as last amended by Laws of Utah 2022, Chapter 181
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77-2-2.3, as last amended by Laws of Utah 2024, Chapter 234
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77-18-107, as enacted by Laws of Utah 2021, Chapter 260
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REPEALS AND REENACTS:
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76-3-406, as last amended by Laws of Utah 2024, Chapter 96
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Be it enacted by the Legislature of the state of Utah: H.B. 78 Enrolled Copy
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Section 1. Section 76-3-406 is repealed and reenacted to read:
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76-3-406 . Crimes for which probation, suspension of sentence, lower category of
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offense, or hospitalization may not be granted.
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(1) As used in this section, "attempted child sexual offense" means an attempt to commit a
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felony that is:
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(a) rape of a child as described in Section 76-5-402.1;
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(b) object rape of a child as described in Section 76-5-402.3;
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(c) sodomy on a child as described in Section 76-5-403.1; or
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(d) aggravated sexual abuse of a child as described in Section 76-5-404.3.
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(2) Except as provided in Subsection (3), a court may not grant probation, suspend the
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execution or imposition of a sentence, enter a judgment for a lower category of offense,
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or order hospitalization, if the effect of which would in any way shorten the prison
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sentence for an actor who commits a capital felony or a first degree felony, or attempts
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to commit a capital felony or a first degree felony, that is:
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(a) aggravated child abuse as described in Section 76-5-109.2;
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(b) aggravated murder as described in Section 76-5-202;
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(c) murder as described in Section 76-5-203;
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(d) child kidnapping as described in Section 76-5-301.1;
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(e) aggravated kidnapping as described in Subsection 76-5-302(3)(b);
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(f) rape as described in Subsection 76-5-402(3)(b), (3)(c), or (4);
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(g) rape of a child as described in Section 76-5-402.1;
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(h) object rape as described in Subsection 76-5-402.2(3)(b), (3)(c), or (4);
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(i) object rape of a child as described in Section 76-5-402.3;
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(j) forcible sodomy as described in Subsection 76-5-403(3)(b), (3)(c), or (4);
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(k) sodomy on a child as described in Section 76-5-403.1;
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(l) forcible sexual abuse as described in Subsection 76-5-404(3)(b)(i) or (ii);
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(m) aggravated sexual abuse of a child as described in Section 76-5-404.3; or
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(n) aggravated sexual assault as described in Section 76-5-405.
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(3)(a) Except as provided in Subsection (3)(b), a court may suspend the execution or
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imposition of a prison sentence for an actor who is convicted of an attempt to commit
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a felony described in Subsection (2) if the court:
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(i) makes a finding on the record that:
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(A) details why it is in the interests of justice not to execute or impose the prison
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sentence; and
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(B) the actor does not pose a significant safety risk to the victim of the attempted
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crime or the general public; and
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(ii) orders the actor to complete the terms and conditions of probation that is
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supervised by the Department of Corrections.
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(b) If a court suspends a sentence for an attempted child sexual offense the court shall
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follow the provisions described in Section 76-5-406.5.
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(4) Except for an offense before the district court in accordance with Section 80-6-502 or
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80-6-504, the provisions of this section do not apply if the sentencing court finds that the
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actor:
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(a) was under 18 years old at the time of the offense; and
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(b) could have been adjudicated in the juvenile court but for the delayed reporting or
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delayed filing of the information.
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(5) Except as provided in Subsection 77-16a-103(6) or (7), a court may not grant probation,
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suspend the execution or imposition of a sentence, enter a judgment for a lower category
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of offense under Section 76-3-402, or order hospitalization under Section 76-3-201 or
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77-18-105 or Title 77, Chapter 16a, Commitment and Treatment of Individuals with a
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Mental Condition, if the court is prohibited from doing so by this section.
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Section 2. Section 76-5-109.2 is amended to read:
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76-5-109.2 . Aggravated child abuse.
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(1)(a) As used in this section:
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(i) "Child" means the same as that term is defined in Section 76-5-109.
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(ii) "Serious physical injury" means the same as that term is defined in Section
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76-5-109.
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(b) Terms defined in Section 76-1-101.5 apply to this section.
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(2) An actor commits aggravated child abuse if the actor:
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(a) inflicts upon a child serious physical injury; or
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(b) having the care or custody of such child, causes or permits another to inflict serious
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physical injury upon a child.
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(3)(a) A violation of Subsection (2) is a [second] first degree felony if done intentionally
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or knowingly.
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(b) A violation of Subsection (2) is a third degree felony if done recklessly.
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(c) A violation of Subsection (2) is a class A misdemeanor if done with criminal
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negligence.
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(4)(a) A parent or legal guardian who provides a child with treatment by spiritual means
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alone through prayer, in lieu of medical treatment, in accordance with the tenets and
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practices of an established church or religious denomination of which the parent or
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legal guardian is a member or adherent may not, for that reason alone, be considered
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to have committed an offense under this section.
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(b) A parent or guardian of a child does not violate this section by selecting a treatment
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option for the medical condition of the child, if the treatment option is one that a
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reasonable parent or guardian would believe to be in the best interest of the child.
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(c) An actor is not guilty of an offense under this section for conduct that constitutes:
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(i) conduct described in Section 76-2-401; or
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(ii) the use of reasonable and necessary physical restraint or force on a child:
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(A) in self-defense;
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(B) in defense of others;
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(C) to protect the child; or
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(D) to remove a weapon in the possession of a child for any of the reasons
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described in Subsections (4)(c)(ii)(A) through (C).
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Section 3. Section 76-5-406.5 is amended to read:
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76-5-406.5 . Circumstances required for probation or suspension of sentence for
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certain sex offenses against a child.
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(1) In a case involving a conviction for [a] an attempted violation of Section 76-5-402.1,
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rape of a child[;] , Section 76-5-402.3, object rape of a child[;] , Section 76-5-403.1,
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sodomy on a child[; or any attempt to commit a felony under those sections or a
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conviction for a violation of ] , or Section 76-5-404.3, aggravated sexual abuse of a child,
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the court may suspend the execution of the sentence and consider probation to a
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residential sexual abuse treatment center only if all of the following circumstances are
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found by the court to be present and the court in [its] the court's discretion, considering
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the circumstances of the offense, including the nature, frequency, and duration of the
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conduct, and considering the best interests of the public and the child victim, finds
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probation to a residential sexual abuse treatment center to be proper:
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(a) the defendant did not use a weapon, force, violence, substantial duress or menace, or
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threat of harm, in committing the offense or before or after committing the offense, in
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an attempt to frighten the child victim or keep the child victim from reporting the
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offense;
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(b) the defendant did not cause bodily injury to the child victim during or as a result of
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the offense and did not cause the child victim severe psychological harm;
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(c) the defendant, prior to the offense, had not been convicted of any public offense in
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Utah or elsewhere involving sexual misconduct in the commission of the offense;
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(d) the defendant did not commit an offense described in this Part 4, Sexual Offenses,
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against more than one child victim or victim, at the same time, or during the same
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course of conduct, or previous to or subsequent to the instant offense;
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(e) the defendant did not use, show, or display pornography or create sexually-related
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photographs or tape recordings in the course of the offense;
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(f) the defendant did not act in concert with another offender during the offense or
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knowingly commit the offense in the presence of a person other than the victim or
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with lewd intent to reveal the offense to another;
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(g) the defendant did not encourage, aid, allow, or benefit from any act of prostitution or
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sexual act by the child victim with any other person or sexual performance by the
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child victim before any other person;
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(h) the defendant admits the offense of which he has been convicted and has been
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accepted for mental health treatment in a residential sexual abuse treatment center
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that has been approved by the Department of Corrections under Subsection (3);
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(i) rehabilitation of the defendant through treatment is probable, based upon evidence
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provided by a treatment professional who has been approved by the Department of
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Corrections under Subsection (3) and who has accepted the defendant for treatment;
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(j) prior to being sentenced, the defendant has undergone a complete psychological
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evaluation conducted by a professional approved by the Department of Corrections
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and:
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(i) the professional's opinion is that the defendant is not an exclusive pedophile and
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does not present an immediate and present danger to the community if released on
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probation and placed in a residential sexual abuse treatment center; and
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(ii) the court accepts the opinion of the professional;
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(k) if the offense is committed by a parent, stepparent, adoptive parent, or legal guardian
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of the child victim, the defendant shall, in addition to establishing all other conditions
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of this section, establish it is in the child victim's best interest that the defendant not
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be imprisoned, by presenting evidence provided by a treatment professional who:
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(i) is treating the child victim and understands he will be treating the family as a
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whole; or
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(ii) has assessed the child victim for purposes of treatment as ordered by the court
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based on a showing of good cause; and
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(l) if probation is imposed, the defendant, as a condition of probation, may not reside in
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a home where children younger than 18 years old reside for at least one year
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beginning with the commencement of treatment, and may not again take up residency
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in a home where children younger than 18 years old reside during the period of
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probation until allowed to do so by order of the court.
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(2) A term of incarceration of at least 90 days is to be served prior to treatment and
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continue until the time when bed space is available at a residential sexual abuse
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treatment center as provided under Subsection (3) and probation is to be imposed for up
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to a maximum of 10 years.
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(3)(a) The Department of Corrections shall develop qualification criteria for the approval
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of the sexual abuse treatment programs and professionals under this section. The
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criteria shall include the screening criteria employed by the department for sexual
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offenders.
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(b) The sexual abuse treatment program shall be at least one year in duration, shall be
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residential, and shall specifically address the sexual conduct for which the defendant
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was convicted.
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(4) Establishment by the defendant of all the criteria of this section does not mandate the
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granting under this section of probation or modification of the sentence that would
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otherwise be imposed by Section 76-3-406 regarding sexual offenses against children.
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The court has discretion to deny the request based upon its consideration of the
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circumstances of the offense, including:
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(a) the nature, frequency, and duration of the conduct;
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(b) the effects of the conduct on any child victim involved;
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(c) the best interest of the public and any child victim; and
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(d) the characteristics of the defendant, including any risk the defendant presents to the
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public and specifically to children.
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(5) The defendant has the burden to establish by a preponderance of evidence eligibility
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under all of the criteria of this section.
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(6) If the court finds a defendant granted probation under this section fails to cooperate or
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succeed in treatment or violates probation to any substantial degree, the sentence
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previously imposed for the offense shall be immediately executed.
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(7) The court shall enter written findings of fact regarding the conditions established by the
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defendant that justify the granting of probation under this section.
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(8) In cases involving conviction of any sexual offense against a child other than those
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offenses provided in Subsection (1), the court shall consider the circumstances described
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in Subsection (1) as advisory in determining whether or not execution of sentence
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should be suspended and probation granted. The defendant is not required to satisfy all
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of those circumstances for eligibility pursuant to this Subsection (8).
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Section 4. Section 77-2-2.3 is amended to read:
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77-2-2.3 . Reducing the level of an offense.
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(1) [Notwithstanding] Subject to Subsection (2) and notwithstanding any other provision of
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law, [a] if a prosecuting attorney determines that it is in the interests of justice, the
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prosecuting attorney may:
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(a) present and file an information charging an individual for an offense under
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Subsections 76-3-103(1)(b) through (d), Subsection 76-3-103(2), or Section 76-3-104
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with a classification of the offense at one degree lower than the classification that is
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provided in [statute if the prosecuting attorney believes that the sentence would be
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disproportionate to the offense because there are special circumstances relating to the
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offense] the applicable section; or
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(b) subject to the approval of the court, amend an information, as part of a plea
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agreement, to charge an individual for an offense under Subsections 76-3-103(1)(b)
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through (d), Subsection 76-3-103(2), or Section 76-3-104 with a classification of the
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offense at one degree lower than the classification that is provided in [statute] the
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applicable section.
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(2) If the offense the prosecuting attorney is seeking to lower by one degree, either by
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information or plea agreement under Subsection (1)(a) or (b), is an offense listed in
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Subsection 76-3-406(2), the prosecuting attorney shall, on the record, state that it is in
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the interests of justice to lower the offense by one degree.
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[(2)] (3) A court may:
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(a) enter a judgment of conviction for an offense filed under Subsection (1) at one
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degree lower than classified in [statute] the applicable section; and
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(b) impose a sentence for the offense filed under Subsection (1) at one degree lower than
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classified in [statute] the applicable section.
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[(3)] (4) A conviction of an offense at one degree lower than classified in [statute] the
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applicable section under Subsection [(2)] (3) does not affect the requirements for
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registration of the offense under Title 77, Chapter 41, Sex, Kidnap, and Child Abuse
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Offender Registry, if the elements of the offense for which the defendant is convicted
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are the same as the elements of an offense described in Section 77-41-102.
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[(4)] (5) This section does not preclude an individual from obtaining and being granted an
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expungement for the individual's record in accordance with Title 77, Chapter 40a,
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Expungement of Criminal Records.
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Section 5. Section 77-18-107 is amended to read:
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77-18-107 . Home confinement -- Electronic monitoring for home confinement.
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(1) The court may order home confinement as a condition of probation under the
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supervision of the department, except as provided in [Sections 76-3-406 and 76-5-406.5]
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Sections 76-3-406 and 76-5-406.5.
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(2) The department shall establish procedures and standards for home confinement for all
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defendants supervised by the department for home confinement.
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(3) If the court places the defendant on probation and orders the defendant to participate in
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home confinement under Subsection (1), the court may order the defendant to participate
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in home confinement through the use of electronic monitoring until further order of the
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court.
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(4) The electronic monitoring of a defendant shall alert the department and the appropriate
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law enforcement agency of the defendant's whereabouts.
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(5) An electronic monitoring device shall be used under conditions that require:
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(a) the defendant to wear an electronic monitoring device at all times; and
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(b) the device be placed in the home of the defendant to monitor the defendant's
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compliance with the court's order.
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(6) If a court orders a defendant to participate in home confinement through electronic
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monitoring as a condition of probation under Subsection (3), the court shall:
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(a) place the defendant on probation under the supervision of the department;
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(b) order the department to place an electronic monitoring device on the defendant and
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install electronic monitoring equipment in the residence of the defendant; and
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(c) order the defendant to pay the costs associated with home confinement to the
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department or the program provider.
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(7) The department shall pay the costs of home confinement through electronic monitoring
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only for an individual who is determined to be indigent by the court.
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(8) The department may provide the electronic monitoring described in this section directly
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or by contract with a private provider.
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Section 6. Effective Date.
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This bill takes effect on May 7, 2025.
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