Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 78 (2025GS)

Sponsor

Rep. Gwynn, Matthew H.

Final action

Governor Signed 3/25/2025

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• requires a prosecutor, when reducing the level of certain crimes in an information or as part of plea deal, to explain on the record why the prosecutor is seeking the reduction;
• requires an indeterminate prison term to be imposed, with exceptions, for certain attempt convictions;
• increases penalties for the crime of aggravated child abuse; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

13
76-3-406
76-5-109.2
76-5-406.5
77-2-2.3
77-18-107
76-3-406
76-5-109.2
76-5-406.5
77-2-2.3
77-18-107
0
Criminal Offenses Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Matthew H. Gwynn
Senate Sponsor: Brady Brammer
LONG TITLE
General Description:
This bill addresses sentencing and criminal procedures for certain criminal offenses.
Highlighted Provisions:
This bill:
requires a prosecutor, when reducing the level of certain crimes in an information or as 
part of plea deal, to explain on the record why the prosecutor is seeking the reduction;
requires an indeterminate prison term to be imposed, with exceptions, for certain attempt 
convictions;
increases penalties for the crime of aggravated child abuse; and
makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-5-109.2
, as enacted by Laws of Utah 2022, Chapter 181
76-5-406.5
, as last amended by Laws of Utah 2022, Chapter 181
77-2-2.3
, as last amended by Laws of Utah 2024, Chapter 234
77-18-107
, as enacted by Laws of Utah 2021, Chapter 260
REPEALS AND REENACTS:
76-3-406
, as last amended by Laws of Utah 2024, Chapter 96
Be it enacted by the Legislature of the state of Utah:
Section 1, Section 
76-3-406
 is repealed and re-enacted to read:
76-3-406
. Crimes for which probation, suspension of sentence, lower category of 
offense, or hospitalization may not be granted.
(1)
As used in this section, "attempted child sexual offense" means an attempt to commit a 
felony that is:
(a)
rape of a child as described in Section 
76-5-402.1
;
(b)
object rape of a child as described in Section 
76-5-402.3
;
(c)
sodomy on a child as described in Section 
76-5-403.1
; or
(d)
aggravated sexual abuse of a child as described in Section 
76-5-404.3
.
(2)
Except as provided in Subsection (3), a court may not grant probation, suspend the 
execution or imposition of a sentence, enter a judgment for a lower category of offense, 
or order hospitalization, if the effect of which would in any way shorten the prison 
sentence for an actor who commits a capital felony or a first degree felony, or attempts 
to commit a capital felony or a first degree felony, that is:
(a)
aggravated child abuse as described in Section 
76-5-109.2
;
(b)
aggravated murder as described in Section 
76-5-202
;
(c)
murder as described in Section 
76-5-203
;
(d)
child kidnapping as described in Section 
76-5-301.1
;
(e)
aggravated kidnapping as described in Subsection 
76-5-302(3)(b)
;
(f)
rape as described in Subsection 
76-5-402(3)(b)
, (3)(c), or (4);
(g)
rape of a child as described in Section 
76-5-402.1
;
(h)
object rape as described in Subsection 
76-5-402.2(3)(b)
, (3)(c), or (4);
(i)
object rape of a child as described in Section 
76-5-402.3
;
(j)
forcible sodomy as described in Subsection 
76-5-403(3)(b)
, (3)(c), or (4);
(k)
sodomy on a child as described in Section 
76-5-403.1
;
(l)
forcible sexual abuse as described in Subsection 
76-5-404(3)(b)(i)
 or (ii);
(m)
aggravated sexual abuse of a child as described in Section 
76-5-404.3
; or
(n)
aggravated sexual assault as described in Section 
76-5-405
.
(3)
(a)
Except as provided in Subsection 
(3)(b)
, a court may suspend the execution or 
imposition of a prison sentence for an actor who is convicted of an attempt to commit 
a felony described in Subsection (2) if the court:
(i)
makes a finding on the record that:
(A)
details why it is in the interests of justice not to execute or impose the prison 
sentence; and
(B)
the actor does not pose a significant safety risk to the victim of the attempted 
crime or the general public; and
(ii)
orders the actor to complete the terms and conditions of probation that is 
supervised by the Department of Corrections.
(b)
If a court suspends a sentence for an attempted child sexual offense the court shall 
follow the provisions described in Section 
76-5-406.5
.
(4)
Except for an offense before the district court in accordance with Section 
80-6-502
 or 
80-6-504
, the provisions of this section do not apply if the sentencing court finds that the 
actor:
(a)
was under 18 years old at the time of the offense; and
(b)
could have been adjudicated in the juvenile court but for the delayed reporting or 
delayed filing of the information.
(5)
Except as provided in Subsection 
77-16a-103(6)
 or (7), a court may not grant probation, 
suspend the execution or imposition of a sentence, enter a judgment for a lower category 
of offense under Section 
76-3-402
, or order hospitalization under Section 
76-3-201
 or 
77-18-105
 or Title 77, Chapter 16a, Commitment and Treatment of Individuals with a 
Mental Condition, if the court is prohibited from doing so by this section.
Section 2, Section 
76-5-109.2
 is amended to read:
76-5-109.2
. Aggravated child abuse.
(1)
(a)
As used in this section:
(i)
"Child" means the same as that term is defined in Section 
76-5-109
.
(ii)
"Serious physical injury" means the same as that term is defined in Section 
76-5-109
.
(b)
Terms defined in Section 
76-1-101.5
 apply to this section.
(2)
An actor commits aggravated child abuse if the actor:
(a)
inflicts upon a child serious physical injury; or
(b)
having the care or custody of such child, causes or permits another to inflict serious 
physical injury upon a child.
(3)
(a)
A violation of Subsection 
(2)
 is a 
second
first
 degree felony if done intentionally 
or knowingly.
(b)
A violation of Subsection 
(2)
 is a third degree felony if done recklessly.
(c)
A violation of Subsection 
(2)
 is a class A misdemeanor if done with criminal 
negligence.
(4)
(a)
A parent or legal guardian who provides a child with treatment by spiritual means 
alone through prayer, in lieu of medical treatment, in accordance with the tenets and 
practices of an established church or religious denomination of which the parent or 
legal guardian is a member or adherent may not, for that reason alone, be considered 
to have committed an offense under this section.
(b)
A parent or guardian of a child does not violate this section by selecting a treatment 
option for the medical condition of the child, if the treatment option is one that a 
reasonable parent or guardian would believe to be in the best interest of the child.
(c)
An actor is not guilty of an offense under this section for conduct that constitutes:
(i)
conduct described in Section 
76-2-401
; or
(ii)
the use of reasonable and necessary physical restraint or force on a child:
(A)
in self-defense;
(B)
in defense of others;
(C)
to protect the child; or
(D)
to remove a weapon in the possession of a child for any of the reasons 
described in Subsections 
(4)(c)(ii)(A)
 through 
(C)
.
Section 3, Section 
76-5-406.5
 is amended to read:
76-5-406.5
. Circumstances required for probation or suspension of sentence for 
certain sex offenses against a child.
(1)
In a case involving a conviction for 
a
an attempted
 violation of Section 
76-5-402.1
, 
rape of a child
;
,
 Section 
76-5-402.3
, object rape of a child
;
,
 Section 
76-5-403.1
, 
sodomy on a child
; or any attempt to commit a felony under those sections or a 
conviction for a violation of 
, or 
Section 
76-5-404.3
, aggravated sexual abuse of a child, 
the court may suspend 
the 
execution of 
the 
sentence and consider probation to a 
residential sexual abuse treatment center only if all of the following circumstances are 
found by the court to be present and the court in 
its
the court's
 discretion, considering 
the circumstances of the offense, including the nature, frequency, and duration of the 
conduct, and considering the best interests of the public and the child victim, finds 
probation to a residential sexual abuse treatment center to be proper:
(a)
the defendant did not use a weapon, force, violence, substantial duress or menace, or 
threat of harm, in committing the offense or before or after committing the offense, in 
an attempt to frighten the child victim or keep the child victim from reporting the 
offense;
(b)
the defendant did not cause bodily injury to the child victim during or as a result of 
the offense and did not cause the child victim severe psychological harm;
(c)
the defendant, prior to the offense, had not been convicted of any public offense in 
Utah or elsewhere involving sexual misconduct in the commission of the offense;
(d)
the defendant did not commit an offense described in this 
Part 4, Sexual Offenses
, 
against more than one child victim or victim, at the same time, or during the same 
course of conduct, or previous to or subsequent to the instant offense;
(e)
the defendant did not use, show, or display pornography or create sexually-related 
photographs or tape recordings in the course of the offense;
(f)
the defendant did not act in concert with another offender during the offense or 
knowingly commit the offense in the presence of a person other than the victim or 
with lewd intent to reveal the offense to another;
(g)
the defendant did not encourage, aid, allow, or benefit from any act of prostitution or 
sexual act by the child victim with any other person or sexual performance by the 
child victim before any other person;
(h)
the defendant admits the offense of which he has been convicted and has been 
accepted for mental health treatment in a residential sexual abuse treatment center 
that has been approved by the Department of Corrections under Subsection 
(3)
;
(i)
rehabilitation of the defendant through treatment is probable, based upon evidence 
provided by a treatment professional who has been approved by the Department of 
Corrections under Subsection 
(3)
 and who has accepted the defendant for treatment;
(j)
prior to being sentenced, the defendant has undergone a complete psychological 
evaluation conducted by a professional approved by the Department of Corrections 
and:
(i)
the professional's opinion is that the defendant is not an exclusive pedophile and 
does not present an immediate and present danger to the community if released on 
probation and placed in a residential sexual abuse treatment center; and
(ii)
the court accepts the opinion of the professional;
(k)
if the offense is committed by a parent, stepparent, adoptive parent, or legal guardian 
of the child victim, the defendant shall, in addition to establishing all other conditions 
of this section, establish it is in the child victim's best interest that the defendant not 
be imprisoned, by presenting evidence provided by a treatment professional who:
(i)
is treating the child victim and understands he will be treating the family as a 
whole; or
(ii)
has assessed the child victim for purposes of treatment as ordered by the court 
based on a showing of good cause; and
(l)
if probation is imposed, the defendant, as a condition of probation, may not reside in 
a home where children younger than 18 years old reside for at least one year 
beginning with the commencement of treatment, and may not again take up residency 
in a home where children younger than 18 years old reside during the period of 
probation until allowed to do so by order of the court.
(2)
A term of incarceration of at least 90 days is to be served prior to treatment and 
continue until the time when bed space is available at a residential sexual abuse 
treatment center as provided under Subsection 
(3)
 and probation is to be imposed for up 
to a maximum of 10 years.
(3)
(a)
The Department of Corrections shall develop qualification criteria for the approval 
of the sexual abuse treatment programs and professionals under this section. The 
criteria shall include the screening criteria employed by the department for sexual 
offenders.
(b)
The sexual abuse treatment program shall be at least one year in duration, shall be 
residential, and shall specifically address the sexual conduct for which the defendant 
was convicted.
(4)
Establishment by the defendant of all the criteria of this section does not mandate the 
granting under this section of probation or modification of the sentence that would 
otherwise be imposed by Section 
76-3-406
 regarding sexual offenses against children. 
The court has discretion to deny the request based upon its consideration of the 
circumstances of the offense, including:
(a)
the nature, frequency, and duration of the conduct;
(b)
the effects of the conduct on any child victim involved;
(c)
the best interest of the public and any child victim; and
(d)
the characteristics of the defendant, including any risk the defendant presents to the 
public and specifically to children.
(5)
The defendant has the burden to establish by a preponderance of evidence eligibility 
under all of the criteria of this section.
(6)
If the court finds a defendant granted probation under this section fails to cooperate or 
succeed in treatment or violates probation to any substantial degree, the sentence 
previously imposed for the offense shall be immediately executed.
(7)
The court shall enter written findings of fact regarding the conditions established by the 
defendant that justify the granting of probation under this section.
(8)
In cases involving conviction of any sexual offense against a child other than those 
offenses provided in Subsection 
(1)
, the court shall consider the circumstances described 
in Subsection 
(1)
 as advisory in determining whether or not execution of sentence 
should be suspended and probation granted. The defendant is not required to satisfy all 
of those circumstances for eligibility pursuant to this Subsection 
(8)
.
Section 4, Section 
77-2-2.3
 is amended to read:
77-2-2.3
. Reducing the level of an offense.
(1)
Notwithstanding
Subject to Subsection (2) and notwithstanding
 any other provision of 
law, 
a
if a prosecuting attorney determines that it is in the interests of justice, the
prosecuting attorney may:
(a)
present and file an information charging an individual for an offense under 
Subsections 
76-3-103
(1)(b) through (d), Subsection 
76-3-103
(2), or Section 
76-3-104
with a classification of the offense at one degree lower than the classification that is 
provided in 
statute if the prosecuting attorney believes that the sentence would be 
disproportionate to the offense because there are special circumstances relating to the 
offense
the applicable section
; or
(b)
subject to the approval of the court, amend an information, as part of a plea 
agreement, to charge an individual for an offense under Subsections 
76-3-103
(1)(b) 
through (d), Subsection 
76-3-103
(2), or Section 
76-3-104
 with a classification of the 
offense at one degree lower than the classification that is provided in 
statute
the 
applicable section
.
(2)
If the offense the prosecuting attorney is seeking to lower by one degree, either by 
information or plea agreement under Subsection (1)(a) or (b), is an offense listed in 
Subsection 
76-3-406(2)
, the prosecuting attorney shall, on the record, state that it is in 
the interests of justice to lower the offense by one degree.
(2)
(3)
A court may:
(a)
enter a judgment of conviction for an offense filed under Subsection (1) at one 
degree lower than classified in 
statute
the applicable section
; and
(b)
impose a sentence for the offense filed under Subsection (1) at one degree lower than 
classified in 
statute
the applicable section
.
(3)
(4)
A conviction of an offense at one degree lower than classified in 
statute
the 
applicable section
 under Subsection 
(2)
(3)
 does not affect the requirements for 
registration of the offense under Title 77, Chapter 41, Sex, Kidnap, and Child Abuse 
Offender Registry, if the elements of the offense for which the defendant is convicted 
are the same as the elements of an offense described in Section 
77-41-102
.
(4)
(5)
This section does not preclude an individual from obtaining and being granted an 
expungement for the individual's record in accordance with Title 77, Chapter 40a, 
Expungement of Criminal Records.
Section 5, Section 
77-18-107
 is amended to read:
77-18-107
. Home confinement -- Electronic monitoring for home confinement.
(1)
The court may order home confinement as a condition of probation under the 
supervision of the department, except as provided in 
Sections 
76-3-406
 and 
76-5-406.5
Sections 
76-3-406
 and 
76-5-406.5
.
(2)
The department shall establish procedures and standards for home confinement for all 
defendants supervised by the department for home confinement.
(3)
If the court places the defendant on probation and orders the defendant to participate in 
home confinement under Subsection 
(1)
, the court may order the defendant to participate 
in home confinement through the use of electronic monitoring until further order of the 
court.
(4)
The electronic monitoring of a defendant shall alert the department and the appropriate 
law enforcement agency of the defendant's whereabouts.
(5)
An electronic monitoring device shall be used under conditions that require:
(a)
the defendant to wear an electronic monitoring device at all times; and
(b)
the device be placed in the home of the defendant to monitor the defendant's 
compliance with the court's order.
(6)
If a court orders a defendant to participate in home confinement through electronic 
monitoring as a condition of probation under Subsection 
(3)
, the court shall:
(a)
place the defendant on probation under the supervision of the department;
(b)
order the department to place an electronic monitoring device on the defendant and 
install electronic monitoring equipment in the residence of the defendant; and
(c)
order the defendant to pay the costs associated with home confinement to the 
department or the program provider.
(7)
The department shall pay the costs of home confinement through electronic monitoring 
only for an individual who is determined to be indigent by the court.
(8)
The department may provide the electronic monitoring described in this section directly 
or by contract with a private provider.
Section 6. 
Effective Date.
This bill takes effect on 
May 7, 2025
.
3-7-25 8:24 AM