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H.B. 240
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KIDNAPPING AMENDMENTS
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2001 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Glenn L. Way
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This act modifies the Criminal Code regarding kidnapping offenses, by amending the
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elements of offenses, stating defenses, and specifying lesser included offenses. This act also
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includes cross reference amendments.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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76-3-202, as last amended by Chapter 69, Laws of Utah 1998
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76-5-301, as last amended by Chapter 88, Laws of Utah 1983
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76-5-301.1, as last amended by Chapter 40, Laws of Utah 1996
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76-5-302, as last amended by Chapter 69, Laws of Utah 1998
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76-5-304, as enacted by Chapter 196, Laws of Utah 1973
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77-27-7, as last amended by Chapter 69, Laws of Utah 1998
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ENACTS:
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76-5-305, Utah Code Annotated 1953
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76-5-306, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
76-3-202
is amended to read:
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76-3-202. Paroled persons -- Termination or discharge from sentence -- Time served
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on parole -- Discretion of Board of Pardons and Parole.
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(1) Except as otherwise provided in this section, every person committed to the state prison
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to serve an indeterminate term and later released on parole shall, upon completion of three years
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on parole outside of confinement and without violation, be terminated from his sentence unless
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the person is earlier terminated by the Board of Pardons and Parole. Any person who violates the
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terms of his parole, while serving parole, shall at the discretion of the Board of Pardons and Parole
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be recommitted to prison to serve the portion of the balance of his term as determined by the Board
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of Pardons and Parole, but not to exceed the maximum term.
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(2) Every person convicted of a second degree felony for violating Section
76-5-404
or
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76-5-404.1
, or attempting to violate any of those sections, upon completion of ten years parole
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outside of confinement and without violation, shall be terminated from his sentence unless the
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person is earlier terminated by the Board of Pardons and Parole. Any person who violates the
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terms of his parole, while serving parole, shall at the discretion of the Board of Pardons and Parole
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be recommitted to prison to serve the portion of the balance of his term as determined by the Board
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of Pardons and Parole, but not to exceed the maximum term.
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(3) Every person convicted of a first degree felony for violating Section
76-5-301.1
,
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Subsection
76-5-302
(1)(b)[(v)](vi), Section
76-5-402
,
76-5-402.1
,
76-5-402.2
,
76-5-402.3
,
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76-5-403
,
76-5-403.1
,
76-5-404.1
, or
76-5-405
, or attempting to violate any of those sections, shall
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complete a term of lifetime parole outside of confinement and without violation unless the person
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is earlier terminated by the Board of Pardons and Parole. Any person who violates the terms of
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his parole, while serving parole, shall at the discretion of the Board of Pardons and Parole be
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recommitted to prison to serve the portion of the balance of his term as determined by the Board
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of Pardons and Parole, but not to exceed the maximum term.
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(4) In order for a parolee convicted on or after May 5, 1997, to be eligible for early
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termination from parole, the parolee must provide:
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(a) evidence to the Board of Pardons and Parole that the parolee has completed high school
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classwork and has obtained a high school graduation diploma, a GED certificate, or a vocational
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certificate; or
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(b) documentation of the inability to obtain one of the items listed in Subsection (4)(a)
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because of:
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(i) a diagnosed learning disability; or
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(ii) other justified cause.
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(5) Any person paroled following a former parole revocation may not be discharged from
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his sentence until either:
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(a) he has served three years or ten years as provided in Subsection (2) on parole outside
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of confinement and without violation, or in the case of a person convicted of a first degree felony
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violation of Section
76-5-301.1
, Subsection
76-5-302
(1)(b)[(v)](vi), Section
76-5-402
,
76-5-402.1
,
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76-5-402.2
,
76-5-402.3
,
76-5-403
,
76-5-403.1
,
76-5-404.1
, or
76-5-405
, or attempting to violate
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any of those sections, lifetime parole outside of confinement and without violation;
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(b) his maximum sentence has expired; or
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(c) the Board of Pardons and Parole so orders.
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(6) (a) All time served on parole, outside of confinement and without violation constitutes
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service of the total sentence but does not preclude the requirement of serving a three-year, ten-year,
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or lifetime parole term, as the case may be, outside of confinement and without violation.
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(b) Any time a person spends outside of confinement after commission of a parole
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violation does not constitute service of the total sentence unless the person is exonerated at a
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hearing to revoke the parole.
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(c) Any time spent in confinement awaiting a hearing before the Board of Pardons and
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Parole or a decision by the board concerning revocation of parole constitutes service of the
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sentence. In the case of exoneration by the board, the time spent shall be included in computing
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the total parole term.
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(7) When any parolee without authority from the Board of Pardons and Parole absents
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himself from the state or avoids or evades parole supervision, the period of absence, avoidance,
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or evasion tolls the parole period.
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(8) While on parole, time spent in confinement outside the state may not be credited
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toward the service of any Utah sentence. Time in confinement outside the state for a conviction
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obtained in another jurisdiction shall toll the expiration of the Utah sentence.
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(9) This section does not preclude the Board of Pardons and Parole from paroling or
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discharging an inmate at any time within the discretion of the Board of Pardons and Parole unless
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otherwise specifically provided by law.
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(10) The parolee may petition the Board of Pardons and Parole for termination of lifetime
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parole as provided by this section [
76-3-202
] in the case of a person convicted of a first degree
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felony violation Section
76-5-301.1
, Subsection
76-5-302
(1)(b)[(v)](vi), Section
76-5-402
,
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76-5-402.1
,
76-5-402.2
,
76-5-402.3
,
76-5-403
,
76-5-403.1
,
76-5-404.1
, or
76-5-405
, or attempting
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to violate any of those sections.
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Section 2.
Section
76-5-301
is amended to read:
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76-5-301. Kidnapping.
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(1) [A person] An actor commits [kidnaping when he] kidnapping if the actor intentionally
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or knowingly [and], without authority of law, and against the will of the victim:
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(a) detains or restrains [another] the victim for any substantial period of time; [or]
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(b) detains or restrains [another] the victim in circumstances exposing [him] the victim to
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risk of [serious] bodily injury; [or]
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(c) holds [another] the victim in involuntary servitude; [or]
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(d) detains or restrains a minor without the consent of [its] the minor's parent or legal
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guardian or the consent of a person acting in loco parentis, if the minor is 14 years of age or older
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but younger than 18 years of age; or
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(e) moves the victim any substantial distance or across a state line.
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(2) As used in this section, acting "against the will of the victim" includes acting without
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the consent of the legal guardian or custodian of a victim who is a mentally incompetent person.
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[(2) Kidnaping] (3) Kidnapping is a second degree felony [of the second degree].
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Section 3.
Section
76-5-301.1
is amended to read:
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76-5-301.1. Child kidnapping.
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(1) [A person] An actor commits child [kidnaping when] kidnapping if the [person] actor
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intentionally or knowingly, without authority of law, and [against the will of the victim,] by any
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means and in any manner, seizes, confines, detains, or transports a child under the age of 14 [with
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intent to keep or conceal the child from its parent, guardian, or other person having lawful custody
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or control of the child. (2) A seizure, confinement, detention, or transportation is deemed to be
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against the will of the victim if the victim is younger than 14 years of age at the time of the offense,
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and the seizure, confinement, detention, or transportation, is] without the [effective] consent of the
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victim's [custodial] parent[,] or guardian, or the consent of a person acting in loco parentis.
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[(3)] (2) Violation of Section
76-5-303
is not a violation of this section.
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[(4)] (3) Child [kidnaping] kidnapping is a first degree felony punishable by imprisonment
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for an indeterminate term of not less than 6, 10, or 15 years and which may be for life.
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Imprisonment is mandatory in accordance with Section
76-3-406
.
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Section 4.
Section
76-5-302
is amended to read:
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76-5-302. Aggravated kidnapping.
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(1) [A person] An actor commits aggravated [kidnaping] kidnapping if the [person
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intentionally or knowingly, without authority of law and against the will of the victim, by any
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means and in any manner, seizes, confines, detains, or transports the victim] actor, in the course
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of committing unlawful detention or kidnapping:
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(a) [and in committing, attempting to commit, or in the immediate flight after the attempt
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or commission of the kidnaping, the actor] possesses, uses, or threatens to use a dangerous weapon
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as defined in Section
76-1-601
; or
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(b) acts with intent:
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(i) to hold the victim for ransom or reward, or as a shield or hostage, or to compel a third
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person to engage in particular conduct or to forbear from engaging in particular conduct;
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(ii) to facilitate the commission, attempted commission, or flight after commission or
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attempted commission of a felony;
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(iii) to hinder or delay the discovery of or reporting of a felony;
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[(iii)] (iv) to inflict bodily injury on or to terrorize the victim or another;
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[(iv)] (v) to interfere with the performance of any governmental or political function; or
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[(v)] (vi) to commit a sexual offense as described in Title 76, Chapter 5, Part 4 [of this
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chapter], Sexual Offenses.
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[(2) A detention or moving is deemed to be the result of force, threat, or deceit if the
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victim is mentally incompetent or younger than 16 years and the detention or moving is
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accomplished without the effective consent of the victim's custodial parent, guardian, or person
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acting in loco parentis to the victim.]
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(2) As used in this h [
Subsection (2)
]
SECTION
h , "in the course of committing unlawful
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detention or
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kidnapping" means in the course of committing, attempting to commit, or in the immediate flight
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after the attempt or commission of a violation of:
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(a ) Section
76-5-301
, kidnapping; or
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(b) Section
76-5-304
, unlawful detention.
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(3) Aggravated [kidnaping] kidnapping is a first degree felony punishable by imprisonment
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for an indeterminate term of not less than 6, 10, or 15 years and which may be for life.
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Imprisonment is mandatory in accordance with Section
76-3-406
.
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Section 5.
Section
76-5-304
is amended to read:
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76-5-304. Unlawful detention.
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(1) [A person] An actor commits unlawful detention if [he] the actor intentionally or
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knowingly, without authority of law, and against the will of the victim, detains or restrains [another
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unlawfully so as to interfere substantially with his liberty] the victim under circumstances not
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constituting a violation of:
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(a) kidnapping, Section
76-5-301
;
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(b) child kidnapping, Section
76-5-301.1
; or
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(c) aggravated kidnapping, Section
76-5-302
.
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(2) As used in this section, acting "against the will of the victim" includes acting without
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the consent of the legal guardian or custodian of a victim who is a mentally incompetent person.
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[(2)] (3) Unlawful detention is a class B misdemeanor.
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Section 6.
Section
76-5-305
is enacted to read:
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76-5-305. Defenses.
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It is a defense under this part that:
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(1) the actor was acting under a reasonable belief that:
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(a) the conduct was necessary to protect any person from imminent bodily injury or death;
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or
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(b) the detention or restraint was authorized by law; or
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(2) the alleged victim is younger than 18 years of age or is mentally incompetent, and the
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actor was acting under a reasonable belief that the custodian, guardian, legal guardian, custodial
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parent, or person acting in loco parentis to the victim would, if present, have consented to the
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actor's conduct.
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Section 7.
Section
76-5-306
is enacted to read:
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76-5-306. Lesser included offenses.
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In this part, the following offenses are lesser included offenses of Section
76-5-302
,
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aggravated kidnapping:
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(1) Section
76-5-301
, kidnapping; and
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(2) Section
76-5-304
, unlawful detention.
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Section 8.
Section
77-27-7
is amended to read:
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77-27-7. Parole or hearing dates -- Interview -- Hearings -- Report of alienists --
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Mental competency.
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(1) The Board of Pardons and Parole shall determine within six months after the date of
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an offender's commitment to the custody of the Department of Corrections, for serving a sentence
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upon conviction of a felony or class A misdemeanor offense, a date upon which the offender shall
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be afforded a hearing to establish a date of release or a date for a rehearing, and shall promptly
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notify the offender of the date.
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(2) Before reaching a final decision to release any offender under this chapter, the chair
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shall cause the offender to appear before the board, its panel, or any appointed hearing officer, who
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shall personally interview the offender to consider his fitness for release and verify as far as
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possible information furnished from other sources. Any offender may waive a personal appearance
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before the board. Any offender outside of the state shall, if ordered by the board, submit to a
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courtesy hearing to be held by the appropriate authority in the jurisdiction in which the offender
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is housed in lieu of an appearance before the board. The offender shall be promptly notified in
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writing of the board's decision.
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(3) In the case of an offender convicted of violating or attempting to violate any of the
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provisions of Section
76-5-301.1
, Subsection
76-5-302
(1)(b)[(v)](vi), [Sections] Section
76-5-402
,
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76-5-402.1
,
76-5-402.2
,
76-5-402.3
,
76-5-403
,
76-5-403.1
,
76-5-404
,
76-5-404.1
, [and] or
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76-5-405
, the chair shall appoint one or more alienists who shall examine the offender within six
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months prior to a hearing at which an original parole date is granted on any offense listed in this
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subsection. The alienists shall report in writing the results of the examination to the board prior
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to the hearing. The report of the appointed alienists shall specifically address the question of the
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offender's current mental condition and attitudes as they relate to any danger the offender may pose
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to children or others if the offender is released on parole.
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(4) The parolee may petition the board for termination of lifetime parole as provided in
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Section
76-3-202
in the case of a person convicted of a first degree felony violation or convicted
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of attempting to violate Section
76-5-301.1
, Subsection
76-5-302
(1)(b)[(v)](vi), [Sections] Section
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76-5-402
,
76-5-402.1
,
76-5-402.2
,
76-5-402.3
,
76-5-403
,
76-5-403.1
,
76-5-404.1
, [and] or
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76-5-405
.
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(5) In any case where an offender's mental competency is questioned by the board, the
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chair shall appoint one or more alienists to examine the offender and report in writing to the board,
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specifically addressing the issue of competency.
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(6) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
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board shall make rules governing:
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(a) the hearing process;
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(b) alienist examination; and
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(c) parolee petitions for termination of parole.
Legislative Review Note
as of 1-15-01 12:50 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.