Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                             H.B. 162
Approved for Filing: J. Rogers 6
          6 01-04-24 2:15 PM 6
                             SEXUAL OFFENSE AMENDMENTS
                                      2024 GENERAL SESSION
                                           STATE OF UTAH
                                Chief Sponsor: Angela Romero
                                 Senate Sponsor: ____________
 6
 LONG TITLE
 General Description:
        This bill creates the offense of sexual conduct without affirmative consent.
 Highlighted Provisions:
        This bill:
        < defines terms;
        < creates a third degree felony offense of sexual conduct without affirmative consent;
        < amends the Sex and Kidnap Offender Registry to include the offense of sexual
 conduct without affirmative consent; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        This bill provides a special effective date.
 Utah Code Sections Affected:
 AMENDS:
        77-41-102 (Superseded 07/01/24), as last amended by Laws of Utah 2023, Chapter 123
        77-41-102 (Effective 07/01/24), as last amended by Laws of Utah 2023, Chapters 123,
 128
                                                                                                     H.B. 162
 ENACTS:
        76-5-406.1, Utah Code Annotated 1953
     *HB0162*
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28
 Be it enacted by the Legislature of the state of Utah:
         Section 1. Section 76-5-406.1 is enacted to read:
         76-5-406.1. Sexual conduct without affirmative consent.
         (1) (a) As used in this section:
         (i) "Affirmative consent" means words or actions by an individual who is competent to
 give informed consent indicating a freely given agreement to engage in sexual conduct at the
 time of the act.
         (ii) "Sexual conduct" means:
         (A) engaging in sexual intercourse with another individual;
         (B) causing the penetration, however slight, of the genital or anal opening of another
 individual who is 14 years old or older, by any foreign object, substance, instrument, or device,
 including a part of the human body other than the mouth or genitals, with intent to cause
 substantial emotional or bodily pain to the victim or with the intent to arouse or gratify the
 sexual desire of any individual; or
         (C) engaging in any sexual act with an individual who is 14 years old or older
 involving the genitals of one individual and the mouth or anus of another individual, regardless
 of the sex of either participant.
         (b) Terms defined in Section 76-1-101.5 apply to this section.
         (2) Except as provided in Subsection (4), an individual commits sexual conduct
 without affirmative consent if the individual intentionally or knowingly engages in sexual
 conduct with another individual without that other individual's affirmative consent.
         (3) (a) Except as provided in Subsection (3)(b), a violation of Subsection (2) is a third
 degree felony.
         (b) A violation of Subsection (2) is a class A misdemeanor if it is committed by an
 individual under 18 years old at the time of the offense.
         (4) This section does not apply if, for the same conduct, the individual is guilty of a
 violation of another provision of this part that is punishable by a higher penalty.
         (5) Affirmative consent to one sexual act or affirmative consent to a prior sexual act
 does not, without more, constitute affirmative consent to another sexual act.
         (6) Affirmative consent initially given may be withdrawn through words or conduct at
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       01-04-24 2:15 PM                                                                       H.B. 162
 any time before or during sexual activity.
        (7) This section does not alter the requirement in Utah law that the prosecution will
 bear the burden of proof under this section on all elements of the offense, as defined in
 Subsection 76-1-501(2).
        Section 2. Section 77-41-102 (Superseded 07/01/24) is amended to read:
        77-41-102 (Superseded 07/01/24). Definitions.
        As used in this chapter:
        (1) "Bureau" means the Bureau of Criminal Identification of the Department of Public
 Safety established in section 53-10-201.
        (2) "Business day" means a day on which state offices are open for regular business.
        (3) "Certificate of eligibility" means a document issued by the Bureau of Criminal
 Identification showing that the offender has met the requirements of Section 77-41-112.
        (4) (a) "Convicted" means a plea or conviction of:
        (i) guilty;
        (ii) guilty with a mental condition; or
        (iii) no contest.
        (b) "Convicted" includes, unless otherwise specified, the period a plea is held in
 abeyance pursuant to a plea in abeyance agreement as defined in Section 77-2a-1.
        (c) "Convicted" does not include:
        (i) a withdrawn or dismissed plea in abeyance;
        (ii) a diversion agreement; or
        (iii) an adjudication of a minor for an offense under Section 80-6-701.
        (5) "Department" means the Department of Corrections.
        (6) "Division" means the Division of Juvenile Justice Services.
        (7) "Employed" or "carries on a vocation" includes employment that is full time or part
 time, whether financially compensated, volunteered, or for the purpose of government or
 educational benefit.
        (8) "Indian Country" means:
        (a) all land within the limits of any Indian reservation under the jurisdiction of the
 United States government, regardless of the issuance of any patent, and includes rights-of-way
 running through the reservation;
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        H.B. 162                                                                     01-04-24 2:15 PM
          (b) all dependent Indian communities within the borders of the United States whether
 within the original or subsequently acquired territory, and whether or not within the limits of a
 state; and
          (c) all Indian allotments, including the Indian allotments to which the Indian titles have
 not been extinguished, including rights-of-way running through the allotments.
          (9) "Jurisdiction" means any state, Indian Country, United States Territory, or any
 property under the jurisdiction of the United States military, Canada, the United Kingdom,
 Australia, or New Zealand.
          (10) "Kidnap offender" means any individual, other than a natural parent of the victim:
          (a) who has been convicted in this state of a violation of:
          (i) Subsection 76-5-301(2)(c) or (d), kidnapping;
          (ii) Section 76-5-301.1, child kidnapping;
          (iii) Section 76-5-302, aggravated kidnapping;
          (iv) Section 76-5-308, human trafficking for labor;
          (v) Section 76-5-308.3, human smuggling;
          (vi) Section 76-5-308, human smuggling, when the individual smuggled is under 18
 years old;
          (vii) Section 76-5-308.5, human trafficking of a child for labor;
          (viii) Section 76-5-310, aggravated human trafficking;
          (ix) Section 76-5-310.1, aggravated human smuggling;
          (x) Section 76-5-311, human trafficking of a vulnerable adult for labor; or
          (xi) attempting, soliciting, or conspiring to commit any felony offense listed in
 Subsections (10)(a)(i) through (x);
          (b) (i) who has been convicted of any crime, or an attempt, solicitation, or conspiracy
 to commit a crime in another jurisdiction, including any state, federal, or military court that is
 substantially equivalent to the offenses listed in Subsection (10)(a); and
          (ii) who is:
          (A) a Utah resident; or
          (B) not a Utah resident, but who, in any 12-month period, is in this state for a total of
 10 or more days, regardless of whether or not the offender intends to permanently reside in this
 state;
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        01-04-24 2:15 PM                                                                         H.B. 162
        (c) (i) (A) who is required to register as a kidnap offender in any other jurisdiction of
 original conviction;
        (B) who is required to register as a kidnap offender by any state, federal, or military
 court; or
        (C) who would be required to register as a kidnap offender if residing in the
 jurisdiction of the conviction regardless of the date of the conviction or any previous
 registration requirements; and
        (ii) in any 12-month period, who is in this state for a total of 10 or more days,
 regardless of whether or not the offender intends to permanently reside in this state;
        (d) (i) (A) who is a nonresident regularly employed or working in this state; or
        (B) who is a student in this state; and
        (ii) (A) who was convicted of one or more offenses listed in this Subsection (10), or
 any substantially equivalent offense in another jurisdiction; or
        (B) as a result of the conviction, who is required to register in the individual's state of
 residence;
        (e) who is found not guilty by reason of insanity in this state or in any other jurisdiction
 of one or more offenses listed in this Subsection (10); or
        (f) (i) who is adjudicated under Section 80-6-701 for one or more offenses listed in
 Subsection (10)(a); and
        (ii) who has been committed to the division for secure care, as defined in Section
 80-1-102, for that offense if:
        (A) the individual remains in the division's custody until 30 days before the individual's
 21st birthday;
        (B) the juvenile court extended the juvenile court's jurisdiction over the individual
 under Section 80-6-605 and the individual remains in the division's custody until 30 days
 before the individual's 25th birthday; or
        (C) the individual is moved from the division's custody to the custody of the
 department before expiration of the division's jurisdiction over the individual.
        (11) "Natural parent" means a minor's biological or adoptive parent, and includes the
 minor's noncustodial parent.
        (12) "Offender" means a kidnap offender as defined in Subsection (10) or a sex
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        H.B. 162                                                                     01-04-24 2:15 PM
 offender as defined in Subsection (18).
         (13) "Online identifier" or "Internet identifier":
         (a) means any electronic mail, chat, instant messenger, social networking, or similar
 name used for Internet communication; and
         (b) does not include date of birth, social security number, PIN number, or Internet
 passwords.
         (14) "Primary residence" means the location where the offender regularly resides, even
 if the offender intends to move to another location or return to another location at any future
 date.
         (15) "Register" means to comply with the requirements of this chapter and
 administrative rules of the department made under this chapter.
         (16) "Registration website" means the Sex and Kidnap Offender Notification and
 Registration website described in Section 77-41-110 and the information on the website.
         (17) "Secondary residence" means any real property that the offender owns or has a
 financial interest in, or any location where, in any 12-month period, the offender stays
 overnight a total of 10 or more nights when not staying at the offender's primary residence.
         (18) "Sex offender" means any individual:
         (a) convicted in this state of:
         (i) a felony or class A misdemeanor violation of Section 76-4-401, enticing a minor;
         (ii) Section 76-5b-202, sexual exploitation of a vulnerable adult;
         (iii) Section 76-5-308.1, human trafficking for sexual exploitation;
         (iv) Section 76-5-308.5, human trafficking of a child for sexual exploitation;
         (v) Section 76-5-310, aggravated human trafficking for sexual exploitation;
         (vi) Section 76-5-311, human trafficking of a vulnerable adult for sexual exploitation;
         (vii) Section 76-5-401, unlawful sexual activity with a minor, except as provided in
 Subsection 76-5-401(3)(b) or (c);
         (viii) Section 76-5-401.1, sexual abuse of a minor, except as provided in Subsection
 76-5-401.1(3);
         (ix) Section 76-5-401.2, unlawful sexual conduct with a 16 or 17 year old;
         (x) Section 76-5-402, rape;
         (xi) Section 76-5-402.1, rape of a child;
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        01-04-24 2:15 PM                                                                        H.B. 162
        (xii) Section 76-5-402.2, object rape;
        (xiii) Section 76-5-402.3, object rape of a child;
        (xiv) a felony violation of Section 76-5-403, forcible sodomy;
        (xv) Section 76-5-403.1, sodomy on a child;
        (xvi) Section 76-5-404, forcible sexual abuse;
        (xvii) Section 76-5-404.1, sexual abuse of a child, or Section 76-5-404.3, aggravated
 sexual abuse of a child;
        (xviii) Section 76-5-405, aggravated sexual assault;
        (xix) Section 76-5-406.1, sexual conduct without affirmative consent, if the individual
 was 18 years old or older at the time of the offense;
        [(xix)] (xx) Section 76-5-412, custodial sexual relations, when the individual in
 custody is younger than 18 years old, if the offense is committed on or after May 10, 2011;
        [(xx)] (xxi) Section 76-5b-201, sexual exploitation of a minor;
        [(xxi)] (xxii) Section 76-5b-201.1, aggravated sexual exploitation of a minor;
        [(xxii)] (xxiii) Section 76-5b-204, sexual extortion or aggravated sexual extortion;
        [(xxiii)] (xxiv) Section 76-7-102, incest;
        [(xxiv)] (xxv) Section 76-9-702, lewdness, if the individual has been convicted of the
 offense four or more times;
        [(xxv)] (xxvi) Section 76-9-702.1, sexual battery, if the individual has been convicted
 of the offense four or more times;
        [(xxvi)] (xxvii) any combination of convictions of Section 76-9-702, lewdness, and of
 Section 76-9-702.1, sexual battery, that total four or more convictions;
        [(xxvii)] (xxviii) Section 76-9-702.5, lewdness involving a child;
        [(xxviii)] (xxix) a felony or class A misdemeanor violation of Section 76-9-702.7,
 voyeurism;
        [(xxix)] (xxx) Section 76-10-1306, aggravated exploitation of prostitution; or
        [(xxx)] (xxxi) attempting, soliciting, or conspiring to commit any felony offense listed
 in this Subsection (18)(a);
        (b) (i) who has been convicted of any crime, or an attempt, solicitation, or conspiracy
 to commit a crime in another jurisdiction, including any state, federal, or military court that is
 substantially equivalent to the offenses listed in Subsection (18)(a); and
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        H.B. 162                                                                    01-04-24 2:15 PM
        (ii) who is:
        (A) a Utah resident; or
        (B) not a Utah resident, but who, in any 12-month period, is in this state for a total of
 10 or more days, regardless of whether the offender intends to permanently reside in this state;
        (c) (i) (A) who is required to register as a sex offender in any other jurisdiction of
 original conviction;
        (B) who is required to register as a sex offender by any state, federal, or military court;
 or
        (C) who would be required to register as a sex offender if residing in the jurisdiction of
 the original conviction regardless of the date of the conviction or any previous registration
 requirements; and
        (ii) who, in any 12-month period, is in the state for a total of 10 or more days,
 regardless of whether or not the offender intends to permanently reside in this state;
        (d) (i) (A) who is a nonresident regularly employed or working in this state; or
        (B) who is a student in this state; and
        (ii) (A) who was convicted of one or more offenses listed in Subsection (18)(a), or any
 substantially equivalent offense in any jurisdiction; or
        (B) who is, as a result of the conviction, required to register in the individual's
 jurisdiction of residence;
        (e) who is found not guilty by reason of insanity in this state, or in any other
 jurisdiction of one or more offenses listed in Subsection (18)(a); or
        (f) (i) who is adjudicated under Section 80-6-701 for one or more offenses listed in
 Subsection (18)(a); and
        (ii) who has been committed to the division for secure care, as defined in Section
 80-1-102, for that offense if:
        (A) the individual remains in the division's custody until 30 days before the individual's
 21st birthday;
        (B) the juvenile court extended the juvenile court's jurisdiction over the individual
 under Section 80-6-605 and the individual remains in the division's custody until 30 days
 before th