02-27 07:55 4th Sub. (Green) H.B. 171
Tyler Clancy proposes the following substitute bill:
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Victim Privacy Changes
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Tyler Clancy
Senate Sponsor: Michael K. McKell
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LONG TITLE
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General Description:
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This bill addresses the privacy of a victim in a criminal investigation or action.
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Highlighted Provisions:
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This bill:
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▸ defines terms;
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▸ addresses access by a defendant and a defendant's attorney to nonpublic electronic data
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related to a victim; and
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▸ provides a victim in a criminal proceeding with a right to privacy in any nonpublic
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electronic data related to the victim that is collected during the course of the criminal
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investigation or action.
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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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77-37-3, as last amended by Laws of Utah 2024, Chapters 96, 164
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ENACTS:
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77-4-202, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1. Section 77-4-202 is enacted to read:
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77-4-202 . Production of nonpublic electronic data related to a victim.
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(1) As used in this section:
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(a) "Intimate image" means the same as that term is defined in Section 76-5b-203.
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(b) "Law enforcement agency" means a public or private agency having general police
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power and charged with making arrests in connection with enforcement of the
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criminal statutes and ordinances of this state or any political subdivision of this state.
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(c)(i) "Nonpublic victim data" means electronic data related to a victim:
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(A) that is obtained from an electronic device possessed or used by a victim or
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from an electronic service provider;
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(B) that is otherwise not available to the public; and
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(C) for which a reasonable person would believe that the victim has a reasonable
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expectation of privacy.
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(ii) "Nonpublic victim data" includes electronic data related to a victim that is
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obtained in the course of a criminal investigation.
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(d) "Prosecuting attorney" means:
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(i) the attorney general and an assistant attorney general;
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(ii) a district attorney or deputy district attorney;
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(iii) a county attorney or assistant county attorney; or
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(iv) an attorney authorized to commence an action on behalf of the state.
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(e) "Victim" means the same as that term is defined in Section 77-37-2.
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(2) In a criminal proceeding involving nonpublic victim data, the nonpublic victim data
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shall remain in the care, custody, and control of:
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(a) a law enforcement agency;
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(b) a prosecuting agency; or
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(c) a court.
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(3)(a) In a criminal proceeding involving nonpublic victim data, a court shall deny a
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request by a defendant to copy, photograph, duplicate, or otherwise reproduce the
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nonpublic victim data if the court, the prosecuting agency, or a law enforcement
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agency provides the defendant's attorney, or an individual the defendant may seek to
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qualify as an expert, an adequate opportunity to view and examine the nonpublic
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victim data.
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(b) An individual described in Subsection (3)(a) may only view or examine the
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nonpublic victim data at the law enforcement agency, the prosecuting agency, or the
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court that has custody and control of the nonpublic victim data.
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(c) A defendant who is self represented:
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(i) may not inspect the nonpublic victim data; and
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(ii) may request that the court appoint counsel for the purpose of inspecting the
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nonpublic victim data on behalf of the defendant.
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(4)(a) Notwithstanding Subsection (3), if nonpublic victim data is relevant or material
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evidence in a criminal proceeding, the court may order the dissemination of the
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nonpublic victim data to a defendant's or a defendant's attorney in accordance with
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Rule 16 of the Utah Rules of Criminal Procedure.
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(b) If the court orders the dissemination of nonpublic victim data under Subsection (4)(a),
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the court:
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(i) may not order the entire contents of a device, or all nonpublic victim data, be
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given to a defendant or the defendant's attorney; and
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(ii) may only require the dissemination of the nonpublic victim data that is relevant or
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material.
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(c) There is a rebuttable presumption against:
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(i) disseminating to the defendant or the defendant's attorney nonpublic victim data
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that is an intimate image; or
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(ii) allowing a defendant or a defendant's attorney to copy, photograph, or otherwise
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reproduce nonpublic victim data that is an intimate image.
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(d) If the court issues an order disseminating an intimate image, or allowing the
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defendant or the defendant's attorney to copy, photograph, or otherwise reproduce an
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intimate image, the court shall include in the order limitations on:
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(i) the number of copies, photographs, or reproductions that the defendant or
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defendant's attorney is permitted to make;
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(ii) who may view the intimate image;
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(iii) how the image may be stored; and
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(iv) the disposition of the intimate image upon the completion of the criminal
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prosecution against the defendant.
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(5) If a prosecuting attorney determines that nonpublic victim data is not relevant or
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material, the prosecuting agency or the law enforcement agency shall:
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(a) retain the nonpublic victim data; and
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(b) make the nonpublic victim data available for review by the defendant's attorney or
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appointed counsel as described in Subsection (3).
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(6)(a) If a prosecuting attorney fails to make nonpublic victim data reasonably available
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for review by a defendant's attorney or appointed counsel, the court may order the
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dissemination of the nonpublic victim data that is subject to a protective order or
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other restrictions as appropriate.
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(b) A prosecuting attorney does not violate the prosecuting attorney's discovery
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obligation by making nonpublic victim data available for review without
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disseminating that nonpublic victim data.
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(7) At the request of a victim or a representative of a victim, the court may:
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(a) conduct an ex parte in camera review of nonpublic victim data that the victim does
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not believe should be made available to the defendant or the defendant's attorney; and
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(b) enter an order prohibiting the inspection, review, or examination of the nonpublic
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victim data if the nonpublic victim data is:
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(i) not relevant or material evidence in the criminal proceeding; or
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(ii) evidence of sexual behavior by the victim that is inadmissible under Rule 412 of
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the Utah Rules of Evidence.
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(8) A law enforcement agency and a prosecuting agency shall establish a policy that
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ensures nonpublic victim data is:
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(a) used solely for legitimate law enforcement and prosecutorial purposes; and
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(b) maintained in a controlled environment and in a manner that protects the privacy of a
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victim.
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(9) This section does not:
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(a) limit the rights of a defendant under the Constitution of the United States or the Utah
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Constitution;
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(b) create a right for a defendant that is beyond the rights created by the requirements of
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Rule 16 of the Utah Rules of Criminal Procedure, the Utah Constitution, and the
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United States Constitution; or
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(c) prevent a law enforcement agency or prosecuting agency from providing information
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to the Utah Office for Victims of Crime that is necessary to provide victim services to
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a victim.
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Section 2. Section 77-37-3 is amended to read:
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77-37-3 . Bill of rights.
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(1) The bill of rights for victims and witnesses is:
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(a) Victims and witnesses have a right to be informed as to the level of protection from
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intimidation and harm available to them, and from what sources, as they participate
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in criminal justice proceedings as designated by Section 76-8-508, regarding
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tampering with a witness, and Section 76-8-509, regarding extortion or bribery to
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dismiss a criminal proceeding. Law enforcement, prosecution, and corrections
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personnel have the duty to timely provide this information in a form which is useful
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to the victim.
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(b) Victims and witnesses, including children and their guardians, have a right to be
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informed and assisted as to their role in the criminal justice process. All criminal
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justice agencies have the duty to provide this information and assistance.
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(c) Victims and witnesses have a right to clear explanations regarding relevant legal
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proceedings; these explanations shall be appropriate to the age of child victims and
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witnesses. All criminal justice agencies have the duty to provide these explanations.
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(d) Victims and witnesses should have a secure waiting area that does not require them
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to be in close proximity to defendants or the family and friends of defendants.
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Agencies controlling facilities shall, whenever possible, provide this area.
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(e) Victims may seek restitution or reparations, including medical costs, as provided in
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Title 63M, Chapter 7, Criminal Justice and Substance Abuse, Title 77, Chapter 38b,
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Crime Victims Restitution Act, and Section 80-6-710. State and local government
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agencies that serve victims have the duty to have a functional knowledge of the
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procedures established by the Crime Victim Reparations Board and to inform victims
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of these procedures.
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(f) Victims and witnesses have a right to have any personal property returned as
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provided in Chapter 11a, Seizure of Property and Contraband, and Chapter 11d, Lost
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or Mislaid Property. Criminal justice agencies shall expeditiously return the property
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when it is no longer needed for court law enforcement or prosecution purposes.
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(g) Victims and witnesses have the right to reasonable employer intercession services,
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including pursuing employer cooperation in minimizing employees' loss of pay and
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other benefits resulting from their participation in the criminal justice process.
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Officers of the court shall provide these services and shall consider victims' and
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witnesses' schedules so that activities which conflict can be avoided. Where conflicts
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cannot be avoided, the victim may request that the responsible agency intercede with
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employers or other parties.
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(h) Victims and witnesses, particularly children, should have a speedy disposition of the
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entire criminal justice process. All involved public agencies shall establish policies
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and procedures to encourage speedy disposition of criminal cases.
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(i) Victims and witnesses have the right to timely notice of judicial proceedings they are
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to attend and timely notice of cancellation of any proceedings. Criminal justice
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agencies have the duty to provide these notifications. Defense counsel and others
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have the duty to provide timely notice to prosecution of any continuances or other
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changes that may be required.
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(j) A victim in a criminal proceeding has a right to privacy in nonpublic victim data, as
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defined in Section 77-4-202, that is collected during the course of the criminal
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investigation or action.
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(2) In addition to the rights of a victim described in Subsection (1), a victim of a sexual
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offense has the right to:
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(a) request voluntary testing for themselves for HIV infection as described in Section
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53-10-803;
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(b) request mandatory testing of the alleged sexual offender for HIV infection as
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described in Section 53-10-802;
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(c) not to be prevented from, or charged for, a medical forensic examination;
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(d) have the evidence from a sexual assault kit, or the contents of the sexual assault kit,
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preserved for the time periods described in Title 77, Chapter 11c, Retention of
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Evidence, without any charge to the victim;
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(e) be informed whether a DNA profile was obtained from the testing of the evidence in
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a sexual assault kit or from other crime scene evidence;
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(f) be informed whether a DNA profile developed from the evidence in a sexual assault
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kit, or from other crime scene evidence, has been entered into the Utah Combined
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DNA Index System;
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(g) be informed of any result from a sexual assault kit or from other crime scene
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evidence if that disclosure would not impede or compromise an ongoing
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investigation, including:
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(i) whether there is a match between a DNA profile developed from the evidence in a
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sexual assault kit, or from other crime scene evidence, and a DNA profile
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contained in the Utah Combined DNA Index System; and
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(ii) a toxicology result or other information that is collected from a sexual assault kit
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as part of a medical forensic examination of the victim;
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(h) be informed in writing of policies governing the collection and preservation of a
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sexual assault kit;
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(i) be informed of the status and location of a sexual assault kit;
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(j) upon written request by the victim, receive a notice of intent from an agency, as
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defined in Section 53-10-905, if the agency intends to destroy or dispose of evidence
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from a sexual assault kit;
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(k) be granted further preservation of the sexual assault kit if the agency, as defined in
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Section 53-10-905, intends to destroy or dispose of evidence from a sexual assault kit
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and the victim submits a written request as described in Section 53-10-905;
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(l) designate a person of the victim's choosing to act as a recipient of the information
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provided under this Subsection (2) or Subsections (3) and (4); and
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(m) be informed of all the enumerated rights in this Subsection (2).
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(3) Subsections (2)(e) through (g) do not require that the law enforcement agency
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communicate with the victim or the victim's designee regarding the status of DNA
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testing, absent a specific request received from the victim or the victim's designee.
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(4) A law enforcement agency investigating a sexual offense may:
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(a) release the information indicated in Subsections (2)(e) through (g) upon the request
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of the victim of the sexual offense, or the victim's designee and is the designated
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agency to provide that information to the victim or the victim's designee;
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(b) require that the victim's request be in writing; and
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(c) respond to the victim's request with verbal communication, written communication,
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or by email if an email address is available.
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(5) A law enforcement agency investigating a sexual offense shall:
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(a) notify the victim of the sexual offense, or the victim's designee, if the law
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enforcement agency determines that DNA evidence will not be analyzed in a case
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where the identity of the perpetrator has not be confirmed;
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(b) provide the information described in this section in a timely manner; and
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(c) upon request of the victim or the victim's designee, advise the victim or the victim's
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designee of any significant changes in the information of which the law enforcement
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agency is aware.
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(6) The law enforcement agency investigating the sexual offense is responsible for
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informing the victim of the sexual offense, or the victim's designee, of the rights
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established under this section.
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(7) Informational rights of the victim under this chapter are based upon the victim
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providing the current name, address, telephone number, and email address, if an email
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address is available, of the person to whom the information should be provided to the
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criminal justice agencies involved in the case.
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Section 3. Effective date.
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This bill takes effect on May 7, 2025.
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