76-5-406.5 - Circumstances required for probation or suspension of sentence for certain sex offenses against a child.
76-5-406.5. Circumstances required for probation or suspension of sentence forcertain sex offenses against a child.
(1) In a case involving a conviction for a 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 attemptto commit a felony under those sections or a conviction for a violation of Subsections76-5-404.1(4) and (5), aggravated sexual abuse of a child, the court may suspend execution ofsentence and consider probation to a residential sexual abuse treatment center only if all of thefollowing circumstances are found by the court to be present and the court in its discretion,considering the circumstances of the offense, including the nature, frequency, and duration of theconduct, and considering the best interests of the public and the child victim, finds probation to aresidential sexual abuse treatment center to be proper:
(a) the defendant did not use a weapon, force, violence, substantial duress or menace, orthreat of harm, in committing the offense or before or after committing the offense, in an attemptto 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 ofthe 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 inUtah 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 ofconduct, or previous to or subsequent to the instant offense;
(e) the defendant did not use, show, or display pornography or create sexually-relatedphotographs or tape recordings in the course of the offense;
(f) the defendant did not act in concert with another offender during the offense orknowingly commit the offense in the presence of a person other than the victim or with lewdintent to reveal the offense to another;
(g) the defendant did not encourage, aid, allow, or benefit from any act of prostitution orsexual act by the child victim with any other person or sexual performance by the child victimbefore any other person;
(h) the defendant admits the offense of which he has been convicted and has beenaccepted for mental health treatment in a residential sexual abuse treatment center that has beenapproved by the Department of Corrections under Subsection (3);
(i) rehabilitation of the defendant through treatment is probable, based upon evidenceprovided by a treatment professional who has been approved by the Department of Correctionsunder Subsection (3) and who has accepted the defendant for treatment;
(j) prior to being sentenced, the defendant has undergone a complete psychologicalevaluation 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 doesnot present an immediate and present danger to the community if released on probation andplaced 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 guardianof the child victim, the defendant shall, in addition to establishing all other conditions of thissection, establish it is in the child victim's best interest that the defendant not be imprisoned, bypresenting 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 basedon a showing of good cause; and
(l) if probation is imposed, the defendant, as a condition of probation, may not reside in ahome where children younger than 18 years of age reside for at least one year beginning with thecommencement of treatment, and may not again take up residency in a home where childrenyounger than 18 years of age reside during the period of probation until allowed to do so by orderof the court.
(2) A term of incarceration of at least 90 days is to be served prior to treatment andcontinue until the time when bed space is available at a residential sexual abuse treatment centeras provided under Subsection (3) and probation is to be imposed for up to a maximum of 10years.
(3) (a) The Department of Corrections shall develop qualification criteria for theapproval of the sexual abuse treatment programs and professionals under this section. Thecriteria 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 beresidential, and shall specifically address the sexual conduct for which the defendant wasconvicted.
(4) Establishment by the defendant of all the criteria of this section does not mandate thegranting under this section of probation or modification of the sentence that would otherwise beimposed by Section 76-3-406 regarding sexual offenses against children. The court hasdiscretion 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 thepublic and specifically to children.
(5) The defendant has the burden to establish by a preponderance of evidence eligibilityunder all of the criteria of this section.
(6) If the court finds a defendant granted probation under this section fails to cooperate orsucceed in treatment or violates probation to any substantial degree, the sentence previouslyimposed for the offense shall be immediately executed.
(7) The court shall enter written findings of fact regarding the conditions established bythe defendant that justify the granting of probation under this section.
(8) In cases involving conviction of any sexual offense against a child other than thoseoffenses provided in Subsection (1), the court shall consider the circumstances described inSubsection (1) as advisory in determining whether or not execution of sentence should besuspended and probation granted. The defendant is not required to satisfy all of thosecircumstances for eligibility pursuant to this Subsection (8).
Amended by Chapter 213, 2004 General Session