Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 401 (2016GS)

Sponsor

Rep. Dee, B.

Final action

House/ filed 3/10/2016

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• adds special function officers as actors who are subject to prosecution for custodial sexual relations or custodial sexual misconduct.

Every vote on this bill

Bill text

PUBLIC SAFETY AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brad L. Dee
Senate Sponsor: 
 J. Stuart Adams
LONG TITLE
General Description:
This bill modifies the Utah Criminal Code regarding custodial sexual offenses.
Highlighted Provisions:
This bill:
▸ adds special function officers as actors who are subject to prosecution for custodial
sexual relations or custodial sexual misconduct.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-5-412
, as last amended by Laws of Utah 2002, Fifth Special Session, Chapter 8
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-5-412
 is amended to read:
76-5-412.
Custodial sexual relations -- Custodial sexual misconduct -- Definitions
-- Penalties -- Defenses.
(1) As used in this section:
(a) "Actor" means:
(i) a correctional officer, as defined in Section 
53-13-104
;
(ii) a special function officer, as defined in Section 
53-13-105
;
[
(ii)
] 
(iii)
 a law enforcement officer, as defined in Section 
53-13-103
; or
[
(iii)
] 
(iv)
 an employee of, or private provider or contractor for, the Department of
Corrections or a county jail.
(b) "Person in custody" means a person, either an adult 18 years of age or older, or a
minor younger than 18 years of age, who is:
(i) a prisoner, as defined in Section 
76-5-101
, and includes a prisoner who is in the
custody of the Department of Corrections created under Section 
64-13-2
, but who is being
housed at the Utah State Hospital established under Section 
62A-15-601
 or other medical
facility;
(ii) under correctional supervision, such as at a work release facility or as a parolee or
probationer; or
(iii) under lawful or unlawful arrest, either with or without a warrant.
(c) "Private provider or contractor" means any person or entity that contracts with the
Department of Corrections or with a county jail to provide services or functions that are part of
the operation of the Department of Corrections or a county jail under state or local law.
(2) (a) An actor commits custodial sexual relations if the actor commits any of the acts
under Subsection (3):
(i) under circumstances not amounting to commission of, or an attempt to commit, an
offense under Subsection (6); and
(ii) (A) the actor knows that the individual is a person in custody; or
(B) a reasonable person in the actor's position should have known under the
circumstances that the individual was a person in custody.
(b) A violation of Subsection (2)(a) is a third degree felony, but if the person in custody
is younger than 18 years of age, a violation of Subsection (2)(a) is a second degree felony.
(c) If the act committed under this Subsection (2) amounts to an offense subject to a
greater penalty under another provision of state law than is provided under this Subsection (2),
this Subsection (2) does not prohibit prosecution and sentencing for the more serious offense.
(3) Acts referred to in Subsection (2)(a) are:
(a) having sexual intercourse with a person in custody;
(b) engaging in any sexual act with a person in custody involving the genitals of one
person and the mouth or anus of another person, regardless of the sex of either participant; or
(c) causing the penetration, however slight, of the genital or anal opening of a person in
custody by any foreign object, substance, instrument, or device, including a part of the human
body, with the intent to cause substantial emotional or bodily pain to any person, regardless of
the sex of any participant.
(4) (a) An actor commits custodial sexual misconduct if the actor commits any of the
acts under Subsection (5):
(i) under circumstances not amounting to commission of, or an attempt to commit, an
offense under Subsection (6); and
(ii) (A) the actor knows that the individual is a person in custody; or
(B) a reasonable person in the actor's position should have known under the
circumstances that the individual was a person in custody.
(b) A violation of Subsection (4)(a) is a class A misdemeanor, but if the person in
custody is younger than 18 years of age, a violation of Subsection (4)(a) is a third degree
felony.
(c) If the act committed under this Subsection (4) amounts to an offense subject to a
greater penalty under another provision of state law than is provided under this Subsection (4),
this Subsection (4) does not prohibit prosecution and sentencing for the more serious offense.
(5) Acts referred to in Subsection (4)(a) are the following acts when committed with
the intent to cause substantial emotional or bodily pain to any person or with the intent to
arouse or gratify the sexual desire of any person, regardless of the sex of any participant:
(a) touching the anus, buttocks, or any part of the genitals of a person in custody;
(b) touching the breast of a female person in custody;
(c) otherwise taking indecent liberties with a person in custody; or
(d) causing a person in custody to take indecent liberties with the actor or another
person.
(6) The offenses referred to in Subsections (2)(a)(i) and (4)(a)(i) are:
(a) Section 
76-5-401
, unlawful sexual activity with a minor;
(b) Section 
76-5-402
, rape;
(c) Section 
76-5-402.1
, rape of a child;
(d) Section 
76-5-402.2
, object rape;
(e) Section 
76-5-402.3
, object rape of a child;
(f) Section 
76-5-403
, forcible sodomy;
(g) Section 
76-5-403.1
, sodomy on a child;
(h) Section 
76-5-404
, forcible sexual abuse;
(i) Section 
76-5-404.1
, sexual abuse of a child or aggravated sexual abuse of a child; or
(j) Section 
76-5-405
, aggravated sexual assault.
(7) (a) It is not a defense to the commission of the offense of custodial sexual relations
under Subsection (2) or custodial sexual misconduct under Subsection (4), or an attempt to
commit either of these offenses, if the person in custody is younger than 18 years of age, that
the actor:
(i) mistakenly believed the person in custody to be 18 years of age or older at the time
of the alleged offense; or
(ii) was unaware of the true age of the person in custody.
(b) Consent of the person in custody is not a defense to any violation or attempted
violation of Subsection (2) or (4).
(8) It is a defense that the commission by the actor of an act under Subsection (2) or (4)
is the result of compulsion, as the defense is described in Subsection 
76-2-302
(1).
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