Utah 2025 Regular Session

Utah House Bill HB0078 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	Enrolled Copy H.B. 78
	1	+	02-21 13:05 1st Sub. (Buff) H.B. 78
	2	+	Matthew H. Gwynn proposes the following substitute bill:
2	3		1
3	4		Criminal Offenses Amendments
4	5		2025 GENERAL SESSION
5	6		STATE OF UTAH
6	7		Chief Sponsor: Matthew H. Gwynn
7	8		Senate Sponsor: Brady Brammer
8	9		2
9	10
10	11		3
11	12		LONG TITLE
12	13		4
13	14		General Description:
14	15		5
15	16		This bill addresses sentencing and criminal procedures for certain criminal offenses.
16	17		6
17	18		Highlighted Provisions:
18	19		7
19	20		This bill:
20	21		8
21	22		▸ requires a prosecutor, when reducing the level of certain crimes in an information or as
22	23		9
23	24		part of plea deal, to explain on the record why the prosecutor is seeking the reduction;
24	25		10
25	26		▸ requires an indeterminate prison term to be imposed, with exceptions, for certain attempt
26	27		11
27	28		convictions;
28	29		12
29	30		▸ increases penalties for the crime of aggravated child abuse; and
30	31		13
31	32		▸ makes technical and conforming changes.
32	33		14
33	34		Money Appropriated in this Bill:
34	35		15
35	36		None
36	37		16
37	38		Other Special Clauses:
38	39		17
39	40		None
40	41		18
41	42		Utah Code Sections Affected:
42	43		19
43	44		AMENDS:
44	45		20
45	46		76-5-109.2, as enacted by Laws of Utah 2022, Chapter 181
46	47		21
47	48		76-5-406.5, as last amended by Laws of Utah 2022, Chapter 181
48	49		22
49	50		77-2-2.3, as last amended by Laws of Utah 2024, Chapter 234
50	51		23
51	52		77-18-107, as enacted by Laws of Utah 2021, Chapter 260
52	53		24
53	54		REPEALS AND REENACTS:
54	55		25
55	56		76-3-406, as last amended by Laws of Utah 2024, Chapter 96
56	57		26
57	58
58	59		27
59		-	Be it enacted by the Legislature of the state of Utah: ~~H.B. 78 Enrolled Copy~~
	60	+	Be it enacted by the Legislature of the state of Utah:
60	61		28
61	62		Section 1. Section 76-3-406 is repealed and reenacted to read:
	63	+	1st Sub. H.B. 78 1st Sub. (Buff) H.B. 78 02-21 13:05
62	64		29
63	65		76-3-406 . Crimes for which probation, suspension of sentence, lower category of
64	66		30
65	67		offense, or hospitalization may not be granted.
66	68		31
67	69		(1) As used in this section, "attempted child sexual offense" means an attempt to commit a
68	70		32
69	71		felony that is:
70	72		33
71	73		(a) rape of a child as described in Section 76-5-402.1;
72	74		34
73	75		(b) object rape of a child as described in Section 76-5-402.3;
74	76		35
75	77		(c) sodomy on a child as described in Section 76-5-403.1; or
76	78		36
77	79		(d) aggravated sexual abuse of a child as described in Section 76-5-404.3.
78	80		37
79	81		(2) Except as provided in Subsection (3), a court may not grant probation, suspend the
80	82		38
81	83		execution or imposition of a sentence, enter a judgment for a lower category of offense,
82	84		39
83	85		or order hospitalization, if the effect of which would in any way shorten the prison
84	86		40
85	87		sentence for an actor who commits a capital felony or a first degree felony, or attempts
86	88		41
87	89		to commit a capital felony or a first degree felony, that is:
88	90		42
89	91		(a) aggravated child abuse as described in Section 76-5-109.2;
90	92		43
91	93		(b) aggravated murder as described in Section 76-5-202;
92	94		44
93	95		(c) murder as described in Section 76-5-203;
94	96		45
95	97		(d) child kidnapping as described in Section 76-5-301.1;
96	98		46
97	99		(e) aggravated kidnapping as described in Subsection 76-5-302(3)(b);
98	100		47
99	101		(f) rape as described in Subsection 76-5-402(3)(b), (3)(c), or (4);
100	102		48
101	103		(g) rape of a child as described in Section 76-5-402.1;
102	104		49
103	105		(h) object rape as described in Subsection 76-5-402.2(3)(b), (3)(c), or (4);
104	106		50
105	107		(i) object rape of a child as described in Section 76-5-402.3;
106	108		51
107	109		(j) forcible sodomy as described in Subsection 76-5-403(3)(b), (3)(c), or (4);
108	110		52
109	111		(k) sodomy on a child as described in Section 76-5-403.1;
110	112		53
111	113		(l) forcible sexual abuse as described in Subsection 76-5-404(3)(b)(i) or (ii);
112	114		54
113	115		(m) aggravated sexual abuse of a child as described in Section 76-5-404.3; or
114	116		55
115	117		(n) aggravated sexual assault as described in Section 76-5-405.
116	118		56
117	119		(3)(a) Except as provided in Subsection (3)(b), a court may suspend the execution or
118	120		57
119	121		imposition of a prison sentence for an actor who is convicted of an attempt to commit
120	122		58
121	123		a felony described in Subsection (2) if the court:
122	124		59
123	125		(i) makes a finding on the record that:
124	126		60
125	127		(A) details why it is in the interests of justice not to execute or impose the prison
126	128		61
127	129		sentence; and
128		-	- 2 - Enrolled Copy H.B. 78
129	130		62
130	131		(B) the actor does not pose a significant safety risk to the victim of the attempted
	132	+	- 2 - 02-21 13:05 1st Sub. (Buff) H.B. 78
131	133		63
132	134		crime or the general public; and
133	135		64
134	136		(ii) orders the actor to complete the terms and conditions of probation that is
135	137		65
136	138		supervised by the Department of Corrections.
137	139		66
138	140		(b) If a court suspends a sentence for an attempted child sexual offense the court shall
139	141		67
140	142		follow the provisions described in Section 76-5-406.5.
141	143		68
142	144		(4) Except for an offense before the district court in accordance with Section 80-6-502 or
143	145		69
144	146		80-6-504, the provisions of this section do not apply if the sentencing court finds that the
145	147		70
146	148		actor:
147	149		71
148	150		(a) was under 18 years old at the time of the offense; and
149	151		72
150	152		(b) could have been adjudicated in the juvenile court but for the delayed reporting or
151	153		73
152	154		delayed filing of the information.
153	155		74
154	156		(5) Except as provided in Subsection 77-16a-103(6) or (7), a court may not grant probation,
155	157		75
156	158		suspend the execution or imposition of a sentence, enter a judgment for a lower category
157	159		76
158	160		of offense under Section 76-3-402, or order hospitalization under Section 76-3-201 or
159	161		77
160	162		77-18-105 or Title 77, Chapter 16a, Commitment and Treatment of Individuals with a
161	163		78
162	164		Mental Condition, if the court is prohibited from doing so by this section.
163	165		79
164	166		Section 2. Section 76-5-109.2 is amended to read:
165	167		80
166	168		76-5-109.2 . Aggravated child abuse.
167	169		81
168	170		(1)(a) As used in this section:
169	171		82
170	172		(i) "Child" means the same as that term is defined in Section 76-5-109.
171	173		83
172	174		(ii) "Serious physical injury" means the same as that term is defined in Section
173	175		84
174	176		76-5-109.
175	177		85
176	178		(b) Terms defined in Section 76-1-101.5 apply to this section.
177	179		86
178	180		(2) An actor commits aggravated child abuse if the actor:
179	181		87
180	182		(a) inflicts upon a child serious physical injury; or
181	183		88
182	184		(b) having the care or custody of such child, causes or permits another to inflict serious
183	185		89
184	186		physical injury upon a child.
185	187		90
186	188		(3)(a) A violation of Subsection (2) is a [second] first degree felony if done intentionally
187	189		91
188	190		or knowingly.
189	191		92
190	192		(b) A violation of Subsection (2) is a third degree felony if done recklessly.
191	193		93
192	194		(c) A violation of Subsection (2) is a class A misdemeanor if done with criminal
193	195		94
194	196		negligence.
195	197		95
196	198		(4)(a) A parent or legal guardian who provides a child with treatment by spiritual means
197		-	- 3 - H.B. 78 Enrolled Copy
198	199		96
199	200		alone through prayer, in lieu of medical treatment, in accordance with the tenets and
	201	+	- 3 - 1st Sub. (Buff) H.B. 78 02-21 13:05
200	202		97
201	203		practices of an established church or religious denomination of which the parent or
202	204		98
203	205		legal guardian is a member or adherent may not, for that reason alone, be considered
204	206		99
205	207		to have committed an offense under this section.
206	208		100
207	209		(b) A parent or guardian of a child does not violate this section by selecting a treatment
208	210		101
209	211		option for the medical condition of the child, if the treatment option is one that a
210	212		102
211	213		reasonable parent or guardian would believe to be in the best interest of the child.
212	214		103
213	215		(c) An actor is not guilty of an offense under this section for conduct that constitutes:
214	216		104
215	217		(i) conduct described in Section 76-2-401; or
216	218		105
217	219		(ii) the use of reasonable and necessary physical restraint or force on a child:
218	220		106
219	221		(A) in self-defense;
220	222		107
221	223		(B) in defense of others;
222	224		108
223	225		(C) to protect the child; or
224	226		109
225	227		(D) to remove a weapon in the possession of a child for any of the reasons
226	228		110
227	229		described in Subsections (4)(c)(ii)(A) through (C).
228	230		111
229	231		Section 3. Section 76-5-406.5 is amended to read:
230	232		112
231	233		76-5-406.5 . Circumstances required for probation or suspension of sentence for
232	234		113
233	235		certain sex offenses against a child.
234	236		114
235	237		(1) In a case involving a conviction for [a] an attempted violation of Section 76-5-402.1,
236	238		115
237	239		rape of a child[;] , Section 76-5-402.3, object rape of a child[;] , Section 76-5-403.1,
238	240		116
239	241		sodomy on a child[; or any attempt to commit a felony under those sections or a
240	242		117
241	243		conviction for a violation of ] , or Section 76-5-404.3, aggravated sexual abuse of a child,
242	244		118
243	245		the court may suspend the execution of the sentence and consider probation to a
244	246		119
245	247		residential sexual abuse treatment center only if all of the following circumstances are
246	248		120
247	249		found by the court to be present and the court in [its] the court's discretion, considering
248	250		121
249	251		the circumstances of the offense, including the nature, frequency, and duration of the
250	252		122
251	253		conduct, and considering the best interests of the public and the child victim, finds
252	254		123
253	255		probation to a residential sexual abuse treatment center to be proper:
254	256		124
255	257		(a) the defendant did not use a weapon, force, violence, substantial duress or menace, or
256	258		125
257	259		threat of harm, in committing the offense or before or after committing the offense, in
258	260		126
259	261		an attempt to frighten the child victim or keep the child victim from reporting the
260	262		127
261	263		offense;
262	264		128
263	265		(b) the defendant did not cause bodily injury to the child victim during or as a result of
264	266		129
265	267		the offense and did not cause the child victim severe psychological harm;
266		-	- 4 - Enrolled Copy H.B. 78
267	268		130
268	269		(c) the defendant, prior to the offense, had not been convicted of any public offense in
	270	+	- 4 - 02-21 13:05 1st Sub. (Buff) H.B. 78
269	271		131
270	272		Utah or elsewhere involving sexual misconduct in the commission of the offense;
271	273		132
272	274		(d) the defendant did not commit an offense described in this Part 4, Sexual Offenses,
273	275		133
274	276		against more than one child victim or victim, at the same time, or during the same
275	277		134
276	278		course of conduct, or previous to or subsequent to the instant offense;
277	279		135
278	280		(e) the defendant did not use, show, or display pornography or create sexually-related
279	281		136
280	282		photographs or tape recordings in the course of the offense;
281	283		137
282	284		(f) the defendant did not act in concert with another offender during the offense or
283	285		138
284	286		knowingly commit the offense in the presence of a person other than the victim or
285	287		139
286	288		with lewd intent to reveal the offense to another;
287	289		140
288	290		(g) the defendant did not encourage, aid, allow, or benefit from any act of prostitution or
289	291		141
290	292		sexual act by the child victim with any other person or sexual performance by the
291	293		142
292	294		child victim before any other person;
293	295		143
294	296		(h) the defendant admits the offense of which he has been convicted and has been
295	297		144
296	298		accepted for mental health treatment in a residential sexual abuse treatment center
297	299		145
298	300		that has been approved by the Department of Corrections under Subsection (3);
299	301		146
300	302		(i) rehabilitation of the defendant through treatment is probable, based upon evidence
301	303		147
302	304		provided by a treatment professional who has been approved by the Department of
303	305		148
304	306		Corrections under Subsection (3) and who has accepted the defendant for treatment;
305	307		149
306	308		(j) prior to being sentenced, the defendant has undergone a complete psychological
307	309		150
308	310		evaluation conducted by a professional approved by the Department of Corrections
309	311		151
310	312		and:
311	313		152
312	314		(i) the professional's opinion is that the defendant is not an exclusive pedophile and
313	315		153
314	316		does not present an immediate and present danger to the community if released on
315	317		154
316	318		probation and placed in a residential sexual abuse treatment center; and
317	319		155
318	320		(ii) the court accepts the opinion of the professional;
319	321		156
320	322		(k) if the offense is committed by a parent, stepparent, adoptive parent, or legal guardian
321	323		157
322	324		of the child victim, the defendant shall, in addition to establishing all other conditions
323	325		158
324	326		of this section, establish it is in the child victim's best interest that the defendant not
325	327		159
326	328		be imprisoned, by presenting evidence provided by a treatment professional who:
327	329		160
328	330		(i) is treating the child victim and understands he will be treating the family as a
329	331		161
330	332		whole; or
331	333		162
332	334		(ii) has assessed the child victim for purposes of treatment as ordered by the court
333	335		163
334	336		based on a showing of good cause; and
335		-	- 5 - H.B. 78 Enrolled Copy
336	337		164
337	338		(l) if probation is imposed, the defendant, as a condition of probation, may not reside in
	339	+	- 5 - 1st Sub. (Buff) H.B. 78 02-21 13:05
338	340		165
339	341		a home where children younger than 18 years old reside for at least one year
340	342		166
341	343		beginning with the commencement of treatment, and may not again take up residency
342	344		167
343	345		in a home where children younger than 18 years old reside during the period of
344	346		168
345	347		probation until allowed to do so by order of the court.
346	348		169
347	349		(2) A term of incarceration of at least 90 days is to be served prior to treatment and
348	350		170
349	351		continue until the time when bed space is available at a residential sexual abuse
350	352		171
351	353		treatment center as provided under Subsection (3) and probation is to be imposed for up
352	354		172
353	355		to a maximum of 10 years.
354	356		173
355		-	(3)(a) The Department of Corrections shall develop qualification criteria for the ~~approval~~
	357	+	(3)(a) The Department of Corrections shall develop qualification criteria for the
356	358		174
357		-	of the sexual abuse treatment programs and professionals under this section. ~~The~~
	359	+	approval of the sexual abuse treatment programs and professionals under this section.
358	360		175
359		-	criteria shall include the screening criteria employed by the department for ~~sexual~~
	361	+	The criteria shall include the screening criteria employed by the department for
360	362		176
361		-	offenders.
	363	+	sexual offenders.
362	364		177
363	365		(b) The sexual abuse treatment program shall be at least one year in duration, shall be
364	366		178
365	367		residential, and shall specifically address the sexual conduct for which the defendant
366	368		179
367	369		was convicted.
368	370		180
369	371		(4) Establishment by the defendant of all the criteria of this section does not mandate the
370	372		181
371	373		granting under this section of probation or modification of the sentence that would
372	374		182
373	375		otherwise be imposed by Section 76-3-406 regarding sexual offenses against children.
374	376		183
375	377		The court has discretion to deny the request based upon its consideration of the
376	378		184
377	379		circumstances of the offense, including:
378	380		185
379	381		(a) the nature, frequency, and duration of the conduct;
380	382		186
381	383		(b) the effects of the conduct on any child victim involved;
382	384		187
383	385		(c) the best interest of the public and any child victim; and
384	386		188
385	387		(d) the characteristics of the defendant, including any risk the defendant presents to the
386	388		189
387	389		public and specifically to children.
388	390		190
389	391		(5) The defendant has the burden to establish by a preponderance of evidence eligibility
390	392		191
391	393		under all of the criteria of this section.
392	394		192
393	395		(6) If the court finds a defendant granted probation under this section fails to cooperate or
394	396		193
395	397		succeed in treatment or violates probation to any substantial degree, the sentence
396	398		194
397	399		previously imposed for the offense shall be immediately executed.
398	400		195
399	401		(7) The court shall enter written findings of fact regarding the conditions established by the
400	402		196
401	403		defendant that justify the granting of probation under this section.
402	404		197
403	405		(8) In cases involving conviction of any sexual offense against a child other than those
404		-	- 6 - Enrolled Copy H.B. 78
405	406		198
406	407		offenses provided in Subsection (1), the court shall consider the circumstances described
	408	+	- 6 - 02-21 13:05 1st Sub. (Buff) H.B. 78
407	409		199
408	410		in Subsection (1) as advisory in determining whether or not execution of sentence
409	411		200
410	412		should be suspended and probation granted. The defendant is not required to satisfy all
411	413		201
412	414		of those circumstances for eligibility pursuant to this Subsection (8).
413	415		202
414	416		Section 4. Section 77-2-2.3 is amended to read:
415	417		203
416	418		77-2-2.3 . Reducing the level of an offense.
417	419		204
418	420		(1) [Notwithstanding] Subject to Subsection (2) and notwithstanding any other provision of
419	421		205
420	422		law, [a] if a prosecuting attorney determines that it is in the interests of justice, the
421	423		206
422	424		prosecuting attorney may:
423	425		207
424	426		(a) present and file an information charging an individual for an offense under
425	427		208
426	428		Subsections 76-3-103(1)(b) through (d), Subsection 76-3-103(2), or Section 76-3-104
427	429		209
428	430		with a classification of the offense at one degree lower than the classification that is
429	431		210
430	432		provided in [statute if the prosecuting attorney believes that the sentence would be
431	433		211
432	434		disproportionate to the offense because there are special circumstances relating to the
433	435		212
434	436		offense] the applicable section; or
435	437		213
436	438		(b) subject to the approval of the court, amend an information, as part of a plea
437	439		214
438	440		agreement, to charge an individual for an offense under Subsections 76-3-103(1)(b)
439	441		215
440	442		through (d), Subsection 76-3-103(2), or Section 76-3-104 with a classification of the
441	443		216
442	444		offense at one degree lower than the classification that is provided in [statute] the
443	445		217
444	446		applicable section.
445	447		218
446	448		(2) If the offense the prosecuting attorney is seeking to lower by one degree, either by
447	449		219
448	450		information or plea agreement under Subsection (1)(a) or (b), is an offense listed in
449	451		220
450	452		Subsection 76-3-406(2), the prosecuting attorney shall, on the record, state that it is in
451	453		221
452	454		the interests of justice to lower the offense by one degree.
453	455		222
454	456		[(2)] (3) A court may:
455	457		223
456	458		(a) enter a judgment of conviction for an offense filed under Subsection (1) at one
457	459		224
458	460		degree lower than classified in [statute] the applicable section; and
459	461		225
460	462		(b) impose a sentence for the offense filed under Subsection (1) at one degree lower than
461	463		226
462	464		classified in [statute] the applicable section.
463	465		227
464	466		[(3)] (4) A conviction of an offense at one degree lower than classified in [statute] the
465	467		228
466	468		applicable section under Subsection [(2)] (3) does not affect the requirements for
467	469		229
468	470		registration of the offense under Title 77, Chapter 41, Sex, Kidnap, and Child Abuse
469	471		230
470	472		Offender Registry, if the elements of the offense for which the defendant is convicted
471	473		231
472	474		are the same as the elements of an offense described in Section 77-41-102.
473		-	- 7 - H.B. 78 Enrolled Copy
474	475		232
475	476		[(4)] (5) This section does not preclude an individual from obtaining and being granted an
	477	+	- 7 - 1st Sub. (Buff) H.B. 78 02-21 13:05
476	478		233
477	479		expungement for the individual's record in accordance with Title 77, Chapter 40a,
478	480		234
479	481		Expungement of Criminal Records.
480	482		235
481	483		Section 5. Section 77-18-107 is amended to read:
482	484		236
483	485		77-18-107 . Home confinement -- Electronic monitoring for home confinement.
484	486		237
485	487		(1) The court may order home confinement as a condition of probation under the
486	488		238
487		-	supervision of the department, except as provided in [Sections 76-3-406 and 76-5-406.5]
	489	+	supervision of the department, except as provided in [Sections Ŝ→ Section
	490	+	238a
	491	+	76-3-406 ←Ŝ and
488	492		239
489		-	Sections 76-3-406 and 76-5-406.5.
	493	+	76-5-406.5] Ŝ→ Sections 76-3-406 and 76-5-406.5 ←Ŝ .
490	494		240
491	495		(2) The department shall establish procedures and standards for home confinement for all
492	496		241
493	497		defendants supervised by the department for home confinement.
494	498		242
495	499		(3) If the court places the defendant on probation and orders the defendant to participate in
496	500		243
497	501		home confinement under Subsection (1), the court may order the defendant to participate
498	502		244
499	503		in home confinement through the use of electronic monitoring until further order of the
500	504		245
501	505		court.
502	506		246
503	507		(4) The electronic monitoring of a defendant shall alert the department and the appropriate
504	508		247
505	509		law enforcement agency of the defendant's whereabouts.
506	510		248
507	511		(5) An electronic monitoring device shall be used under conditions that require:
508	512		249
509	513		(a) the defendant to wear an electronic monitoring device at all times; and
510	514		250
511	515		(b) the device be placed in the home of the defendant to monitor the defendant's
512	516		251
513	517		compliance with the court's order.
514	518		252
515	519		(6) If a court orders a defendant to participate in home confinement through electronic
516	520		253
517	521		monitoring as a condition of probation under Subsection (3), the court shall:
518	522		254
519	523		(a) place the defendant on probation under the supervision of the department;
520	524		255
521	525		(b) order the department to place an electronic monitoring device on the defendant and
522	526		256
523	527		install electronic monitoring equipment in the residence of the defendant; and
524	528		257
525	529		(c) order the defendant to pay the costs associated with home confinement to the
526	530		258
527	531		department or the program provider.
528	532		259
529	533		(7) The department shall pay the costs of home confinement through electronic monitoring
530	534		260
531	535		only for an individual who is determined to be indigent by the court.
532	536		261
533	537		(8) The department may provide the electronic monitoring described in this section directly
534	538		262
535	539		or by contract with a private provider.
536	540		263
537	541		Section 6. Effective Date.
538	542		264
539	543		This bill takes effect on May 7, 2025.
540	544		- 8 -