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S.B. 76
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DOMESTIC VIOLENCE IN PRESENCE OF
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CHILD AMENDMENTS
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2002 GENERAL SESSION
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STATE OF UTAH
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Sponsor: David H. Steele
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This act modifies the Utah Criminal Code. The act provides that a person is guilty of child
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abuse if the person commits an act of domestic violence in the presence of a child. The act
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eliminates the requirement that there be one or more prior occasions of acts of domestic
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violence in the presence of a child before a person is guilty of child abuse. The act clarifies
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that a charge of child abuse arising from domestic violence in the presence of a child is
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separate and distinct from a charge of domestic violence where the victim is the cohabitant.
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The act adds domestic violence in the presence of a child to the list of acts constituting
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domestic violence. The act makes technical changes.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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76-5-109.1, as last amended by Chapter 81, Laws of Utah 1998
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77-36-1, as last amended by Chapter 229, Laws of Utah 1999
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
76-5-109.1
is amended to read:
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76-5-109.1. Commission of domestic violence in the presence of a child.
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(1) As used in this section:
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(a) "Cohabitant" has the same meaning as defined in Section
30-6-1
.
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[(a)] (b) "Domestic violence" [means] has the same meaning as [that term is defined] in
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Section
77-36-1
.
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[(b)] (c) "In the presence of a child" means:
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(i) in the physical presence of a child; or
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(ii) having knowledge that a child is present and may see or hear an act of domestic
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violence.
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(2) A person is guilty of child abuse if [he] the person:
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(a) commits or attempts to commit criminal homicide, as defined in Section
76-5-201
,
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against a cohabitant in the presence of a child; or
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(b) intentionally causes serious bodily injury to a cohabitant or uses a dangerous weapon,
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as defined in Section
76-1-601
, or other means or force likely to produce death or serious bodily
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injury against a cohabitant, in the presence of a child; or
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(c) under circumstances not amounting to a violation of Subsection (2)(a) or (b), commits
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an act of domestic violence in the presence of a child [after having committed:].
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[(i) a violation of Subsection (2)(a) or (b) on one or more prior occasions; or]
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[(ii) an act of domestic violence in the presence of a child, not amounting to a violation
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of Subsection (2)(a) or (b), on one or more prior occasions.]
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(3) (a) A person who violates Subsection (2)(a) or (b) is guilty of a third degree felony.
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(b) A person who violates Subsection (2)(c) is guilty of a class [A] B misdemeanor.
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(4) A charge under this section is separate and distinct from, and is in addition to, a charge
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of domestic violence where the victim is the cohabitant. Either or both charges may be filed by
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the prosecutor.
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Section 2.
Section
77-36-1
is amended to read:
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77-36-1. Definitions.
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As used in this chapter:
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(1) "Cohabitant" has the same meaning as in Section
30-6-1
.
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(2) "Domestic violence" means any criminal offense involving violence or physical harm
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or threat of violence or physical harm, or any attempt, conspiracy, or solicitation to commit a
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criminal offense involving violence or physical harm, when committed by one cohabitant against
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another. "Domestic violence" also means commission or attempt to commit, any of the following
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offenses by one cohabitant against another:
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(a) aggravated assault, as described in Section
76-5-103
;
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(b) assault, as described in Section
76-5-102
;
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(c) criminal homicide, as described in Section
76-5-201
;
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(d) harassment, as described in Section
76-5-106
;
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(e) telephone harassment, as described in Section
76-9-201
;
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(f) kidnaping, child kidnaping, or aggravated kidnaping, as described in Sections
76-5-301
,
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76-5-301.1
, and
76-5-302
;
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(g) mayhem, as described in Section
76-5-105
;
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(h) sexual offenses, as described in Title 76, Chapter 5, Part 4, and Title 76, Chapter 5a;
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(i) stalking, as described in Section
76-5-106.5
;
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(j) unlawful detention, as described in Section
76-5-304
;
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(k) violation of a protective order or ex parte protective order, as described in Section
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76-5-108
;
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(l) any offense against property described in Title 76, Chapter 6, Part 1, 2, or 3;
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(m) possession of a deadly weapon with intent to assault, as described in Section
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76-10-507
;
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(n) discharge of a firearm from a vehicle, near a highway, or in the direction of any person,
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building, or vehicle, as described in Section
76-10-508
; [or]
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(o) disorderly conduct, as defined in Section
76-9-102
, if a conviction of disorderly
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conduct is the result of a plea agreement in which the defendant was originally charged with any
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of the domestic violence offenses otherwise described in this Subsection (2). Conviction of
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disorderly conduct as a domestic violence offense, in the manner described in this Subsection
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(2)(o), does not constitute a misdemeanor crime of domestic violence under 18 U.S.C. Section 921,
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and is exempt from the provisions of the federal Firearms Act, 18 U.S.C. Section 921 et seq.; or
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(p) child abuse as described in Section
76-5-109.1
.
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(3) "Victim" means a cohabitant who has been subjected to domestic violence.
Legislative Review Note
as of 1-23-02 12:31 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.