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H.B. 56
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CHILD ABUSE HOMICIDE
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Gordon E. Snow
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AN ACT RELATING TO CRIMINAL LAW; AMENDING PROVISIONS REGARDING THE
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VICTIM'S AGE IN MURDER OFFENSES INVOLVING CHILD ABUSE.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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76-5-109, as last amended by Chapter 67, Laws of Utah 1999
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76-5-202, as last amended by Chapter 90, Laws of Utah 1999
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76-5-203, as last amended by Chapters 2 and 90, Laws of Utah 1999
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76-5-208, as last amended by Chapter 303, Laws of Utah 1997
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
76-5-109
is amended to read:
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76-5-109. Child abuse.
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(1) As used in this section:
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(a) "Child" means a human being who is [17] under 18 years of age [or less].
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(b) "Child abuse" means any offense described in Subsection (2) or (3), or in Section
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76-5-109.1
.
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(c) "Physical injury" means an injury to or condition of a child which impairs the physical
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condition of the child, including:
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(i) a bruise or other contusion of the skin;
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(ii) a minor laceration or abrasion;
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(iii) failure to thrive or malnutrition; or
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(iv) any other condition which imperils the child's health or welfare and which is not a
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serious physical injury as defined in Subsection (1)(d).
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(d) "Serious physical injury" means any physical injury or set of injuries which seriously
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impairs the child's health, or which involves physical torture or causes serious emotional harm to
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the child, or which involves a substantial risk of death to the child, including:
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(i) fracture of any bone or bones;
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(ii) intracranial bleeding, swelling or contusion of the brain, whether caused by blows,
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shaking, or causing the child's head to impact with an object or surface;
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(iii) any burn, including burns inflicted by hot water, or those caused by placing a hot
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object upon the skin or body of the child;
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(iv) any injury caused by use of a dangerous weapon as defined in Section
76-1-601
;
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(v) any combination of two or more physical injuries inflicted by the same person, either
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at the same time or on different occasions;
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(vi) any damage to internal organs of the body;
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(vii) any conduct toward a child which results in severe emotional harm, severe
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developmental delay or retardation, or severe impairment of the child's ability to function;
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(viii) any injury which creates a permanent disfigurement or protracted loss or impairment
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of the function of a bodily member, limb, or organ;
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(ix) any conduct which causes a child to cease breathing, even if resuscitation is successful
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following the conduct; or
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(x) any conduct which results in starvation or failure to thrive or malnutrition that
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jeopardizes the child's life.
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(2) Any person who inflicts upon a child serious physical injury or, having the care or
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custody of such child, causes or permits another to inflict serious physical injury upon a child is
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guilty of an offense as follows:
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(a) if done intentionally or knowingly, the offense is a felony of the second degree;
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(b) if done recklessly, the offense is a felony of the third degree; or
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(c) if done with criminal negligence, the offense is a class A misdemeanor.
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(3) Any person who inflicts upon a child physical injury or, having the care or custody of
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such child, causes or permits another to inflict physical injury upon a child is guilty of an offense
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as follows:
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(a) if done intentionally or knowingly, the offense is a class A misdemeanor;
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(b) if done recklessly, the offense is a class B misdemeanor; or
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(c) if done with criminal negligence, the offense is a class C misdemeanor.
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(4) A parent or legal guardian who provides a child with treatment by spiritual means
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alone through prayer, in lieu of medical treatment, in accordance with the tenets and practices of
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an established church or religious denomination of which the parent or legal guardian is a member
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or adherent shall not, for that reason alone, be deemed to have committed an offense under this
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section.
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Section 2.
Section
76-5-202
is amended to read:
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76-5-202. Aggravated murder.
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(1) Criminal homicide constitutes aggravated murder if the actor intentionally or
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knowingly causes the death of another under any of the following circumstances:
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(a) the homicide was committed by a person who is confined in a jail or other correctional
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institution;
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(b) the homicide was committed incident to one act, scheme, course of conduct, or
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criminal episode during which two or more persons were killed, or during which the actor
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attempted to kill one or more persons in addition to the victim who was killed;
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(c) the actor knowingly created a great risk of death to a person other than the victim and
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the actor;
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(d) the homicide was committed while the actor was engaged in the commission of, or an
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attempt to commit, or flight after committing or attempting to commit, aggravated robbery,
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robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon
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a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child
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abuse [of a child under the age of 14 years,] as [otherwise] defined in Subsection
76-5-109
(2)(a),
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or aggravated sexual assault, aggravated arson, arson, aggravated burglary, burglary, aggravated
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kidnaping, kidnaping, or child kidnaping;
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(e) the homicide was committed for the purpose of avoiding or preventing an arrest of the
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defendant or another by a peace officer acting under color of legal authority or for the purpose of
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effecting the defendant's or another's escape from lawful custody;
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(f) the homicide was committed for pecuniary or other personal gain;
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(g) the defendant committed, or engaged or employed another person to commit the
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homicide pursuant to an agreement or contract for remuneration or the promise of remuneration
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for commission of the homicide;
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(h) the actor was previously convicted of aggravated murder, murder, or of a felony
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involving the use or threat of violence to a person. For the purpose of this subsection an offense
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committed in another jurisdiction, which if committed in Utah would be punishable as aggravated
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murder or murder, is considered aggravated murder or murder;
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(i) the homicide was committed for the purpose of:
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(i) preventing a witness from testifying;
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(ii) preventing a person from providing evidence or participating in any legal proceedings
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or official investigation;
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(iii) retaliating against a person for testifying, providing evidence, or participating in any
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legal proceedings or official investigation; or
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(iv) disrupting or hindering any lawful governmental function or enforcement of laws;
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(j) the victim is or has been a local, state, or federal public official, or a candidate for
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public office, and the homicide is based on, is caused by, or is related to that official position, act,
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capacity, or candidacy;
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(k) the victim is or has been a peace officer, law enforcement officer, executive officer,
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prosecuting officer, jailer, prison official, firefighter, judge or other court official, juror, probation
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officer, or parole officer, and the victim is either on duty or the homicide is based on, is caused by,
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or is related to that official position, and the actor knew, or reasonably should have known, that
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the victim holds or has held that official position;
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(l) the homicide was committed by means of a destructive device, bomb, explosive,
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incendiary device, or similar device which was planted, hidden, or concealed in any place, area,
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dwelling, building, or structure, or was mailed or delivered;
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(m) the homicide was committed during the act of unlawfully assuming control of any
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aircraft, train, or other public conveyance by use of threats or force with intent to obtain any
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valuable consideration for the release of the public conveyance or any passenger, crew member,
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or any other person aboard, or to direct the route or movement of the public conveyance or
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otherwise exert control over the public conveyance;
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(n) the homicide was committed by means of the administration of a poison or of any
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lethal substance or of any substance administered in a lethal amount, dosage, or quantity;
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(o) the victim was a person held or otherwise detained as a shield, hostage, or for ransom;
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(p) the actor was under a sentence of life imprisonment or a sentence of death at the time
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of the commission of the homicide; or
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(q) the homicide was committed in an especially heinous, atrocious, cruel, or exceptionally
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depraved manner, any of which must be demonstrated by physical torture, serious physical abuse,
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or serious bodily injury of the victim before death.
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(2) Aggravated murder is a capital offense.
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(3) (a) It is an affirmative defense to a charge of aggravated murder or attempted
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aggravated murder that the defendant caused the death of another or attempted to cause the death
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of another:
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(i) under the influence of extreme emotional distress for which there is a reasonable
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explanation or excuse; or
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(ii) under a reasonable belief that the circumstances provided a legal justification or excuse
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for his conduct although the conduct was not legally justifiable or excusable under the existing
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circumstances.
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(b) Under Subsection (3)(a)(i), emotional distress does not include:
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(i) a condition resulting from mental illness as defined in Section
76-2-305
; or
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(ii) distress that is substantially caused by the defendant's own conduct.
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(c) The reasonableness of an explanation or excuse under Subsection (3)(a)(i) or the
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reasonable belief of the actor under Subsection (3)(a)(ii) shall be determined from the viewpoint
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of a reasonable person under the then existing circumstances.
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(d) This affirmative defense reduces charges only as follows:
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(i) aggravated murder to murder; and
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(ii) attempted aggravated murder to attempted murder.
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Section 3.
Section
76-5-203
is amended to read:
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76-5-203. Murder.
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(1) Criminal homicide constitutes murder if the actor:
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(a) intentionally or knowingly causes the death of another;
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(b) intending to cause serious bodily injury to another commits an act clearly dangerous
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to human life that causes the death of another;
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(c) acting under circumstances evidencing a depraved indifference to human life engages
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in conduct which creates a grave risk of death to another and thereby causes the death of another;
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(d) while in the commission, attempted commission, or immediate flight from the
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commission or attempted commission of aggravated robbery, robbery, rape, object rape, forcible
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sodomy, or aggravated sexual assault, aggravated arson, arson, aggravated burglary, burglary,
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aggravated kidnapping, kidnapping, child kidnapping, rape of a child, object rape of a child,
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sodomy upon a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of
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a child, or child abuse, as defined in Subsection
76-5-109
(2)(a), [when the victim is younger than
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14 years of age,] causes the death of another person other than a party as defined in Section
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76-2-202
;
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(e) recklessly causes the death of a peace officer while in the commission or attempted
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commission of:
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(i) an assault against a peace officer as defined in Section
76-5-102.4
; or
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(ii) interference with a peace officer while making a lawful arrest as defined in Section
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76-8-305
if the actor uses force against a peace officer;
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(f) commits a homicide which would be aggravated murder, but the offense is reduced
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pursuant to Subsection
76-5-202
(3); or
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(g) commits aggravated murder, but special mitigation is established under Section
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76-5-205.5
.
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(2) Murder is a first degree felony.
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(3) (a) It is an affirmative defense to a charge of murder or attempted murder that the
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defendant caused the death of another or attempted to cause the death of another:
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(i) under the influence of extreme emotional distress for which there is a reasonable
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explanation or excuse; or
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(ii) under a reasonable belief that the circumstances provided a legal justification or excuse
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for his conduct although the conduct was not legally justifiable or excusable under the existing
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circumstances.
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(b) Under Subsection (3)(a)(i) emotional distress does not include:
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(i) a condition resulting from mental illness as defined in Section
76-2-305
; or
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(ii) distress that is substantially caused by the defendant's own conduct.
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(c) The reasonableness of an explanation or excuse under Subsection (3)(a)(i) or the
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reasonable belief of the actor under Subsection (3)(a)(ii) shall be determined from the viewpoint
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of a reasonable person under the then existing circumstances.
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(d) This affirmative defense reduces charges only as follows:
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(i) murder to manslaughter; and
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(ii) attempted murder to attempted manslaughter.
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Section 4.
Section
76-5-208
is amended to read:
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76-5-208. Child abuse homicide.
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(1) Criminal homicide constitutes child abuse homicide if the actor causes the death of a
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person under [17] 18 years of age and the death results from child abuse, as defined in Subsection
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76-5-109
(1):
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(a) if done recklessly as provided in Subsection
76-5-109
(2)(b);
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(b) if done with criminal negligence as provided in Subsection
76-5-109
(2)(c); or
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(c) if done with the mental culpability as provided in Subsection
76-5-109
(3)(a), (b), or
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(c).
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(2) Child abuse homicide as described in Subsection (1)(a) is a second degree felony.
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(3) Child abuse homicide as described in Subsections (1)(b) and (c) is a third degree
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felony.
Legislative Review Note
as of 12-30-99 11:08 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.