Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 81 Second Substitute (2022GS)

Sponsor

Rep. Pulsipher, S.

Final action

Governor Signed 3/22/2022

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• deletes and modifies definitions;
• modifies the elements of the offense of prostitution;
• adjusts the elements and penalties for the offense of patronizing a prostitute;
• adjusts the elements and penalties for the offense of sexual solicitation; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

SEXUAL SOLICITATION AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Susan Pulsipher
Senate Sponsor: 
Wayne A. Harper
LONG TITLE
General Description:
This bill modifies the elements and penalties for sexual solicitation and related
offenses.
Highlighted Provisions:
This bill:
▸ deletes and modifies definitions;
▸ modifies the elements of the offense of prostitution;
▸ adjusts the elements and penalties for the offense of patronizing a prostitute;
▸ adjusts the elements and penalties for the offense of sexual solicitation; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides a coordination clause.
Utah Code Sections Affected:
AMENDS:
76-10-1301
, as last amended by Laws of Utah 2018, Chapter 308
76-10-1302
, as last amended by Laws of Utah 2020, Chapters 108, 214 and last
amended by Coordination Clause, Laws of Utah 2020, Chapter 214
76-10-1303
, as last amended by Laws of Utah 2018, Chapter 308
76-10-1313
, as last amended by Laws of Utah 2020, Chapter 108
76-10-1315
, as last amended by Laws of Utah 2021, Chapter 262
Utah Code Sections Affected by Coordination Clause:
76-10-1313
, as last amended by Laws of Utah 2020, Chapter 108
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-10-1301
 is amended to read:
76-10-1301.
Definitions.
As used in this part:
(1) "Child" is an individual younger than 18 years [
of age
] 
old
.
[
(2) "Inmate" means an individual who engages in prostitution in or through the agency
of a place of prostitution.
]
[
(3)
] 
(2)
 "Place of prostitution" means a place or business where prostitution or
promotion of prostitution is arranged, regularly carried on, or attempted by one or more
individuals under the control, management, or supervision of another.
[
(4)
] 
(3)
 "Prostitute" 
or "prostituted individual"
 means an individual engaged in [
the
activities
] 
an activity
 described in Subsection 
76-10-1302
(1) 
or 
76-10-1313
(1)(a), (c), (d), or
(f)
.
[
(5)
] 
(4)
 "Public place" means [
any
] 
a
 place to which the public or any substantial
group of the public has access.
[
(6)
] 
(5)
 "Sexual activity" means, regardless of the gender of either participant:
(a) [
acts
] 
an act
 of masturbation, sexual intercourse, or any sexual act involving the
genitals of one individual and the mouth or anus of another individual; or
(b) [
touching
] 
the touching of
 the genitals, female breast, or anus of one individual
with any other body part of another individual with the intent to sexually arouse or gratify
either individual.
Section 2. Section 
76-10-1302
 is amended to read:
76-10-1302.
Prostitution.
(1) An [
individual
] 
actor,
 except for a child under Section 
76-10-1315
,
 is guilty of
prostitution [
when the individual:
] 
if the actor engages in sexual activity with another
individual for a fee, or the functional equivalent of a fee.
[
(a) engages, offers, or agrees to engage in any sexual activity with another individual
for a fee, or the functional equivalent of a fee;
]
[
(b) takes steps in arranging a meeting through any form of advertising, agreeing to
meet, and meeting at an arranged place for the purpose of sexual activity in exchange for a fee
or the functional equivalent of a fee; or
]
[
(c) loiters in or within view of any public place for the purpose of being hired to
engage in sexual activity.
]
(2) (a) Except as provided in Subsection (2)(b) and Section 
76-10-1309
, [
prostitution
]
a violation of Subsection (1)
 is a class B misdemeanor.
(b) Except as provided in Section 
76-10-1309
, an [
individual
] 
actor
 who is convicted a
second time, and on all subsequent convictions, of a subsequent offense of prostitution under
this section or under a local ordinance adopted [
in compliance with
] 
under
 Section 
76-10-1307
,
is guilty of a class A misdemeanor.
(3) A prosecutor may not prosecute an [
individual
] 
actor
 for a violation of Subsection
(1) if the [
individual
] 
actor
 engages in a violation of Subsection (1) at or near the time the
[
individual
] 
actor
 witnesses or is a victim of any of the following offenses, or an attempt to
commit any of the following offenses, and the [
individual
] 
actor
 reports the offense or attempt
to law enforcement in good faith:
(a) assault, Section 
76-5-102
;
(b) aggravated assault, Section 
76-5-103
;
(c) mayhem, Section 
76-5-105
;
(d) aggravated murder, murder, manslaughter, negligent homicide, child abuse
homicide, or homicide by assault under Title 76, Chapter 5, Part 2, Criminal Homicide;
(e) kidnapping, child kidnapping, aggravated kidnapping, human trafficking or
aggravated human trafficking, human smuggling or aggravated human smuggling, or human
trafficking of a child under Title 76, Chapter 5, Part 3, Kidnapping, Trafficking, and
Smuggling;
(f) rape, Section 
76-5-402
;
(g) rape of a child, Section 
76-5-402.1
;
(h) object rape, Section 
76-5-402.2
;
(i) object rape of a child, Section 
76-5-402.3
;
(j) forcible sodomy, Section 
76-5-403
;
(k) sodomy on a child, Section 
76-5-403.1
;
(l) forcible sexual abuse, Section 
76-5-404
;
(m) aggravated sexual abuse of a child or sexual abuse of a child, Section 
76-5-404.1
;
(n) aggravated sexual assault, Section 
76-5-405
;
(o) sexual exploitation of a minor, Section 
76-5b-201
;
(p) sexual exploitation of a vulnerable adult, Section 
76-5b-202
;
(q) aggravated burglary or burglary of a dwelling under Title 76, Chapter 6, Part 2,
Burglary and Criminal Trespass;
(r) aggravated robbery or robbery under Title 76, Chapter 6, Part 3, Robbery; or
(s) theft by extortion under Subsection 
76-6-406
(2)(a) or (b).
Section 3. Section 
76-10-1303
 is amended to read:
76-10-1303.
Patronizing a prostitute.
(1) An [
individual
] 
actor
 is guilty of patronizing a prostitute [
when the individual
] 
if
the actor
:
(a) pays or offers or agrees to pay a [
prostitute
] 
prostituted individual
, or an individual
the actor believes to be a [
prostitute
] 
prostituted individual
, a fee, or the functional equivalent
of a fee, for the purpose of engaging in an act of sexual activity; or
(b) enters or remains in a place of prostitution for the purpose of engaging in sexual
activity.
(2) Patronizing a prostitute is a class A misdemeanor, except as provided in Subsection
(3), (4), or (5) [
and
] 
or
 Section 
76-10-1309
.
(3) A violation of this section that is preceded by a conviction under this section or a
conviction under 
a
 local ordinance adopted under Section 
76-10-1307
 is a class A
misdemeanor.
(4) A third violation of this section or a local ordinance adopted under Section
76-10-1307
 is a third degree felony.
(5) [
If
] 
(a) Except as provided in Subsection (5)(d), if
 the patronizing of a prostitute
under Subsection (1)(a) involves a child as the other individual, a violation of Subsection (1)(a)
is a [
third
] 
second
 degree felony.
(b) In accordance with Subsection 
76-2-304.5
(5)(a), it is not a defense to a prosecution
under Subsection (5)(a) that the actor mistakenly believed the individual to be 18 years old or
older at the time of the offense or was unaware of the individual's true age.
(c) An actor's belief that the individual was under 18 years old at the time of the
offense, even if the individual was 18 years old or older, is a violation of Subsection (5)(a).
(d) If the act committed under Subsection (5)(a) amounts to an offense that is subject to
a greater penalty under another provision of state law than is provided under Subsection (5)(a),
this Subsection (5) does not prohibit prosecution and sentencing for the more serious offense.
(6) Upon a conviction for a violation of this section, the court shall order
:
(a)
 the maximum fine amount and may not waive or suspend the fine[
.
]
; and
(b) the defendant to pay for and complete a court-approved educational program about
the negative effects on an individual involved with prostitution or human trafficking.
Section 4. Section 
76-10-1313
 is amended to read:
76-10-1313.
Sexual solicitation -- Penalty.
(1) An individual except for a child under Section 
76-10-1315
 is guilty of sexual
solicitation [
when
] 
if
 the individual:
(a) offers or agrees to commit any sexual activity with another individual for a fee, or
the functional equivalent of a fee;
(b) pays or offers or agrees to pay a fee or the functional equivalent of a fee to another
individual to commit any sexual activity; [
or
]
(c) takes steps to arrange a meeting through any form of advertising or agreement to
meet, and meets at an arranged place for the purpose of being hired to engage in sexual activity
in exchange for a fee or the functional equivalent of a fee;
(d) loiters in or within view of a public place for the purpose of being hired to engage
in sexual activity in exchange for a fee, or the functional equivalent of a fee;
[
(c)
] 
(e)
 with intent to [
engage in sexual activity for a fee or the functional equivalent
of a fee or to
] pay another individual to commit any sexual activity for a fee or the functional
equivalent of a fee [
engages in, offers or agrees to engage in, or
]
,
 requests or directs [
another
]
the other individual
 to engage in any of the following acts:
(i) exposure of an individual's genitals, the buttocks, the anus, the pubic area, or the
female breast below the top of the areola;
(ii) masturbation;
(iii) touching of an individual's genitals, the buttocks, the anus, the pubic area, or the
female breast; or
(iv) any act of lewdness[
.
]
; or
(f) with intent to engage in sexual activity for a fee, or the functional equivalent of a
fee, engages in or offers or agrees to engage in an act described in Subsection (1)(e)(i) through
(iv).
(2) An intent to engage in sexual activity for a fee may be inferred from an individual's
engaging in, offering or agreeing to engage in, or requesting or directing another to engage in
any of the acts described in Subsection (1)[
(c)
] 
(e) or (f)
 under the totality of the existing
circumstances.
(3) Except as provided in Section 
76-10-1309
 and Subsections (4) and (5), [
an
individual who is convicted of sexual solicitation under this section
] 
a violation of Subsection
(1)(a), (c), (d), or (f)
 or under a local ordinance adopted in compliance with Section
76-10-1307
 is [
guilty of a class A misdemeanor.
]
:
[
(4) An individual who is convicted a third time under this section or a local ordinance
adopted in compliance with Section 
76-10-1307
 is guilty of a third degree felony.
]
(a) a class B misdemeanor on a first or second violation; and
(b) a class A misdemeanor on a third or subsequent violation.
(4) Except as provided in Section 
76-10-1309
 and Subsections (5) and (8), a violation
of Subsection (1)(b) or (e) or a local ordinance adopted under Section 
76-10-1307
 is:
(a) a class A misdemeanor on the first or second violation; and
(b) a third degree felony on a third or subsequent violation.
(5) If an individual commits an act of sexual solicitation 
in violation of Subsection (1)
and the individual solicited is a child, the offense is a [
third
] 
second
 degree felony if the
solicitation does not amount to 
a violation of
:
(a) [
a violation of
] Section 
76-5-308
, human trafficking or human smuggling; [
or
]
(b) Section 
76-5-308.5
, human trafficking of a child; or
[
(b)
] 
(c)
 [
a violation of
] Section 
76-5-310
, aggravated human trafficking or aggravated
human smuggling.
(6) (a) Upon encountering a child engaged in commercial sex or sexual solicitation, a
law enforcement officer shall follow the procedure described in Subsection 
76-10-1315
(2).
(b) A child engaged in commercial sex or sexual solicitation shall be referred to the
Division of Child and Family Services for services and may not be subjected to delinquency
proceedings.
(7) A prosecutor may not prosecute an individual for a violation of Subsection (1) if
the individual engages in a violation of Subsection (1) at or near the time the individual
witnesses or is a victim of any of the offenses or an attempt to commit any of the offenses
described in Subsection 
76-10-1302
(3), and the individual reports the offense or attempt to law
enforcement in good faith.
(8) (a) As part of a sentence imposed under Subsection (3), the court may lower, waive,
or suspend a fine if the defendant completes a court-approved program that provides
information or services intended to help an individual no longer engage in prostitution.
(b) As part of a sentence imposed under Subsection (4), the court shall order the
defendant to pay for and complete a court-approved educational program about the negative
effects on an individual involved with prostitution or human trafficking.
Section 5. Section 
76-10-1315
 is amended to read:
76-10-1315.
Safe harbor for children as victims in commercial sex or sexual
solicitation.
(1) As used in this section:
(a) "Child engaged in commercial sex" means a child who:
(i) engages, offers, or agrees to engage in any sexual activity with another individual
for a fee, or the functional equivalent of a fee;
(ii) takes steps in arranging a meeting through any form of advertising, agreeing to
meet, and meeting at an arranged place for the purpose of sexual activity in exchange for a fee
or the functional equivalent of a fee; or
(iii) loiters in or within view of any public place for the purpose of being hired to
engage in sexual activity.
(b) "Child engaged in sexual solicitation" means a child who offers or agrees to
commit or engage in any sexual activity with another person for a fee
,
 or the functional
equivalent of a fee
,
 under Subsection 
76-10-1313
(1)(a) [
or
]
,
 (c)
, (d), or (f)
.
(c) "Division" means the Division of Child and Family Services created in Section
62A-4a-103
.
(d) "Juvenile receiving center" means the same as that term is defined in Section
80-1-102
.
(2) Upon encountering a child engaged in commercial sex or sexual solicitation, a law
enforcement officer shall:
(a) conduct an investigation regarding possible human trafficking of the child pursuant
to Sections 
76-5-308
 and 
76-5-308.5
;
(b) refer the child to the division;
(c) bring the child to a juvenile receiving center, if available; and
(d) contact the child's parent or guardian, if practicable.
(3) When law enforcement refers a child to the division under Subsection (2)(b) the
division shall provide services to the child under Title 62A, Chapter 4a, Child and Family
Services.
(4) A child may not be subjected to delinquency proceedings for prostitution under
Section 
76-10-1302
, or [
sex
] 
sexual
 solicitation under Section 
76-10-1313
.
Section 6. 
 Coordinating H.B. 81 with S.B. 123 -- Technical amendment.
If this H.B. 81 and S.B. 123, Criminal Code Recodification, both pass and become law,
it is the intent of the Legislature that the Office of Legislative Research and General Counsel
prepare the Utah Code database for publication by amending Subsection 
76-10-1313
(5) to read:
"
(5) If an individual commits an act of sexual solicitation 
in violation of Subsection (1)
and the individual solicited is a child, the offense is a [
third
] 
second
 degree felony if the
solicitation does not amount to 
a violation of
:
(a) [
a violation of
] Section 
76-5-308
, 
76-5-308.1
, or 
76-5-308.5
,
 human trafficking or 
Section 
76-5-308.3
,
 human smuggling; or
(b) [
a violation of
] Section 
76-5-310
, aggravated human trafficking or 
Section
76-5-310.1
,
 aggravated human smuggling.
".