Enrolled Copy S.B. 167
1 SEXUAL EXPLOITATION AMENDMENTS
2 2022 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Chris H. Wilson
5 House Sponsor: Karianne Lisonbee
6
7 LONG TITLE
8 General Description:
9 This bill concerns the sexual exploitation of a minor.
10 Highlighted Provisions:
11 This bill:
12 < modifies definitions;
13 < modifies the offense of sexual exploitation of a minor;
14 < creates the offense of aggravated sexual exploitation of a minor;
15 < requires the Sentencing Commission to study and update sentencing and release
16 guidelines concerning the offense of sexual exploitation of a minor;
17 < adds the offense of aggravated sexual exploitation of a minor to statutes that
18 reference sexual exploitation of a minor, including statutes related to:
19 C custody and visitation for an individual other than a parent;
20 C enhancements for offenses committed in concert with three or more persons or
21 in relation to a criminal street gang;
22 C unlawful distribution of a counterfeit intimate image;
23 C lewdness involving a child;
24 C prostitution;
25 C penalties for repeat and habitual sex offenders;
26 C the Sex and Kidnap Offender Registry; and
27 C adoption; and
28 < makes technical and conforming changes.
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29 Money Appropriated in this Bill:
30 None
31 Other Special Clauses:
32 This bill provides a coordination clause.
33 Utah Code Sections Affected:
34 AMENDS:
35 30-5a-103, as last amended by Laws of Utah 2021, Chapter 262
36 31A-21-501, as last amended by Laws of Utah 2012, Chapters 39 and 303
37 62A-2-120, as last amended by Laws of Utah 2021, Chapters 117, 262, and 400
38 63M-7-404, as last amended by Laws of Utah 2021, Chapter 173
39 63M-7-502, as last amended by Laws of Utah 2021, Chapter 260
40 76-1-302, as last amended by Laws of Utah 2019, Chapter 216
41 76-3-203.1, as last amended by Laws of Utah 2021, First Special Session, Chapter 11
42 76-3-203.5, as last amended by Laws of Utah 2013, Chapter 278
43 76-3-407, as last amended by Laws of Utah 2011, Chapter 320
44 76-5b-201, as last amended by Laws of Utah 2021, Chapter 262
45 76-5b-205, as enacted by Laws of Utah 2021, Chapter 134
46 76-9-702.5, as last amended by Laws of Utah 2019, Chapter 394
47 76-10-1302, as last amended by Laws of Utah 2020, Chapters 108, 214 and last
48 amended by Coordination Clause, Laws of Utah 2020, Chapter 214
49 76-10-1602, as last amended by Laws of Utah 2019, Chapters 200 and 363
50 77-22-2.5, as last amended by Laws of Utah 2019, Chapters 382 and 420
51 77-36-1, as last amended by Laws of Utah 2021, Chapters 134 and 159
52 77-41-102, as last amended by Laws of Utah 2021, Chapter 2 and further amended by
53 Revisor Instructions, Laws of Utah 2021, First Special Session, Chapter 2
54 77-41-106, as last amended by Laws of Utah 2020, Chapter 108
55 78B-6-117, as last amended by Laws of Utah 2021, Chapter 262
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56 80-1-102, as last amended by Laws of Utah 2021, First Special Session, Chapter 2
57 ENACTS:
58 76-5b-201.1, Utah Code Annotated 1953
59 Utah Code Sections Affected by Coordination Clause:
60 76-5b-201.1, Utah Code Annotated 1953
61
62 Be it enacted by the Legislature of the state of Utah:
63 Section 1. Section 30-5a-103 is amended to read:
64 30-5a-103. Custody and visitation for individuals other than a parent.
65 (1) (a) In accordance with Section 62A-4a-201, it is the public policy of this state that a
66 parent retain the fundamental right and duty to exercise primary control over the care,
67 supervision, upbringing, and education of the parent's children.
68 (b) There is a rebuttable presumption that a parent's decisions are in the child's best
69 interests.
70 (2) A court may find the presumption in Subsection (1) rebutted and grant custodial or
71 visitation rights to an individual other than a parent who, by clear and convincing evidence,
72 establishes that:
73 (a) the individual has intentionally assumed the role and obligations of a parent;
74 (b) the individual and the child have formed a substantial emotional bond and created a
75 parent-child type relationship;
76 (c) the individual substantially contributed emotionally or financially to the child's well
77 being;
78 (d) the assumption of the parental role is not the result of a financially compensated
79 surrogate care arrangement;
80 (e) the continuation of the relationship between the individual and the child is in the
81 child's best interest;
82 (f) the loss or cessation of the relationship between the individual and the child would
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83 substantially harm the child; and
84 (g) the parent:
85 (i) is absent; or
86 (ii) is found by a court to have abused or neglected the child.
87 (3) A proceeding under this chapter may be commenced by filing a verified petition, or
88 petition supported by an affidavit, in the juvenile court if a matter is pending, or in the district
89 court in the county where the child:
90 (a) currently resides; or
91 (b) lived with a parent or an individual other than a parent who acted as a parent within
92 six months before the commencement of the action.
93 (4) A proceeding under this chapter may be filed in a pending divorce, parentage
94 action, or other proceeding, including a proceeding in the juvenile court involving custody of or
95 visitation with a child.
96 (5) The petition shall include detailed facts supporting the petitioner's right to file the
97 petition including the criteria set forth in Subsection (2) and residency information as set forth
98 in Section 78B-13-209.
99 (6) A proceeding under this chapter may not be filed against a parent who is actively
100 serving outside the state in any branch of the military.
101 (7) Notice of a petition filed pursuant to this chapter shall be served in accordance with
102 the rules of civil procedure on all of the following:
103 (a) the child's biological, adopted, presumed, declarant, and adjudicated parents;
104 (b) any individual who has court-ordered custody or visitation rights;
105 (c) the child's guardian;
106 (d) the guardian ad litem, if one has been appointed;
107 (e) an individual or agency that has physical custody of the child or that claims to have
108 custody or visitation rights; and
109 (f) any other individual or agency that has previously appeared in any action regarding
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110 custody of or visitation with the child.
111 (8) The court may order a custody evaluation to be conducted in any action brought
112 under this chapter.
113 (9) The court may enter temporary orders in an action brought under this chapter
114 pending the entry of final orders.
115 (10) Except as provided in Subsection (11), a court may not grant custody of a child
116 under this section to an individual who is not the parent of the child and who, before a custody
117 order is issued, is convicted, pleads guilty, or pleads no contest to a felony or attempted felony
118 involving conduct that constitutes any of the following:
119 (a) child abuse, as described in Section 76-5-109;
120 (b) child abuse homicide, as described in Section 76-5-208;
121 (c) child kidnapping, as described in Section 76-5-301.1;
122 (d) human trafficking of a child, as described in Section 76-5-308.5;
123 (e) sexual abuse of a minor, as described in Section 76-5-401.1;
124 (f) rape of a child, as described in Section 76-5-402.1;
125 (g) object rape of a child, as described in Section 76-5-402.3;
126 (h) sodomy on a child, as described in Section 76-5-403.1;
127 (i) sexual abuse of a child or aggravated sexual abuse of a child, as described in
128 Section 76-5-404.1;
129 (j) sexual exploitation of a minor, as described in Section 76-5b-201; [or]
130 (k) aggravated sexual exploitation of a minor, as described in Section 76-5b-201.1; or
131 [(k)] (l) an offense in another state that, if committed in this state, would constitute an
132 offense described in this Subsection (10).
133 (11) (a) As used in this Subsection (11), "disqualifying offense" means an offense
134 listed in Subsection (10) that prevents a court from granting custody except as provided in this
135 Subsection (11).
136 (b) An individual described in Subsection (10) may only be considered for custody of a
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137 child if the following criteria are met by clear and convincing evidence:
138 (i) the individual is a relative, as defined in Section 80-3-102, of the child;
139 (ii) at least 10 years have elapsed from the day on which the individual is successfully
140 released from prison, jail, parole, or probation related to a disqualifying offense;
141 (iii) during the 10 years before the day on which the individual files a petition with the
142 court seeking custody the individual has not been convicted, plead guilty, or plead no contest to
143 an offense greater than an infraction or traffic violation that would likely impact the health,
144 safety, or well-being of the child;
145 (iv) the individual can provide evidence of successful treatment or rehabilitation
146 directly related to the disqualifying offense;
147 (v) the court determines that the risk related to the disqualifying offense is unlikely to
148 cause harm, as defined in Section 80-1-102, or potential harm to the child currently or at any
149 time in the future when considering all of the following:
150 (A) the child's age;
151 (B) the child's gender;
152 (C) the child's development;
153 (D) the nature and seriousness of the disqualifying offense;
154 (E) the preferences of a child 12 years old or older;
155 (F) any available assessments, including custody evaluations, parenting assessments,
156 psychological or mental health assessments, and bonding assessments; and
157 (G) any other relevant information;
158 (vi) the individual can provide evidence of the following:
159 (A) the relationship with the child is of long duration;
160 (B) that an emotional bond exists with the child; and
161 (C) that custody by the individual who has committed the disqualifying offense ensures
162 the best interests of the child are met;
163 (vii) (A) there is no other responsible relative known to the court who has or likely
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164 could develop an emotional bond with the child and does not have a disqualifying offense; or
165 (B) if there is a responsible relative known to the court that does not have a
166 disqualifying offense, Subsection (11)(d) applies; and
167 (viii) that the continuation of the relationship between the individual with the
168 disqualifying offense and the child could not be sufficiently maintained through any type of
169 visitation if custody were given to the relative with no disqualifying offense described in
170 Subsection (11)(d).
171 (c) The individual with the disqualifying offense bears the burden of proof regarding
172 why placement with that individual is in the best interest of the child over another responsible
173 relative or equally situated individual who does not have a disqualifying offense.
174 (d) If, as provided in Subsection (11)(b)(vii)(B), there is a responsible relative known
175 to the court who does not have a disqualifying offense:
176 (i) preference for custody is given to a relative who does not have a disqualifying
177 offense; and
178 (ii) before the court may place custody with the individual who has the disqualifying
179 offense over another responsible, willing, and able relative:
180 (A) an impartial custody evaluation shall be completed; and
181 (B) a guardian ad litem shall be assigned.
182 (12) Subsections (10) and (11) apply to a case pending on March 25, 2017, for which a
183 final decision on custody has not been made and to a case filed on or after March 25, 2017.
184 Section 2. Section 31A-21-501 is amended to read:
185 31A-21-501. Definitions.
186 For purposes of this part:
187 (1) "Applicant" means:
188 (a) in the case of an individual life or accident and health policy, the person who seeks
189 to contract for insurance benefits; or
190 (b) in the case of a group life or accident and health policy, the proposed certificate
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191 holder.
192 (2) "Cohabitant" means an emancipated individual pursuant to Section 15-2-1 or an
193 individual who is 16 years [of age] old or older who:
194 (a) is or was a spouse of the other party;
195 (b) is or was living as if a spouse of the other party;
196 (c) is related by blood or marriage to the other party;
197 (d) has one or more children in common with the other party; or
198 (e) resides or has resided in the same residence as the other party.
199 (3) "Child abuse" means the commission or attempt to commit against a child a
200 criminal offense described in:
201 (a) Title 76, Chapter 5, Part 1, Assault and Related Offenses;
202 (b) Title 76, Chapter 5, Part 4, Sexual Offenses;
203 (c) Section 76-9-702, Lewdness;
204 (d) Section 76-9-702.1, Sexual battery; or
205 (e) Section 76-9-702.5, Lewdness involving a child.
206 (4) "Domestic violence" means any criminal offense involving violence or physical
207 harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to
208 commit a criminal offense involving violence or physical harm, when committed by one
209 cohabitant against another and includes commission or attempt to commit, any of the following
210 offenses by one cohabitant against another:
211 (a) aggravated assault, as described in Section 76-5-103;
212 (b) assault, as described in Section 76-5-102;
213 (c) criminal homicide, as described in Section 76-5-201;
214 (d) harassment, as described in Section 76-5-106;
215 (e) electronic communication harassment, as described in Section 76-9-201;
216 (f) kidnaping, child kidnaping, or aggravated kidnaping, as described in Sections
217 76-5-301, 76-5-301.1, and 76-5-302;
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218 (g) mayhem, as described in Section 76-5-105;
219 (h) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
220 [Section 76-5b-201] Sections 76-5b-201 and 76-5b-201.1;
221 (i) stalking, as described in Section 76-5-106.5;
222 (j) unlawful detention or unlawful detention of a minor, as described in Section
223 76-5-304;
224 (k) violation of a protective order or ex parte protective order, as described in Section
225 76-5-108;
226 (l) any offense against property described in Title 76, Chapter 6, Part 1, Property
227 Destruction, Part 2, Burglary and Criminal Trespass, or Part 3, Robbery;
228 (m) possession of a deadly weapon with intent to assault, as described in Section
229 76-10-507; or
230 (n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
231 person, building, or vehicle, as described in Section 76-10-508.
232 (5) "Subject of domestic abuse" means an individual who is, has been, may currently
233 be, or may have been subject to domestic violence or child abuse.
234 Section 3. Section 62A-2-120 is amended to read:
235 62A-2-120. Background check -- Direct access to children or vulnerable adults.
236 (1) As used in this section:
237 (a) (i) "Applicant" means:
238 (A) the same as that term is defined in Section 62A-2-101;
239 (B) an individual who is associated with a licensee and has or will likely have direct
240 access to a child or a vulnerable adult;
241 (C) an individual who provides respite care to a foster pa