| (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 attempt to commit a felony under those sections or a conviction for a violation of Section 76-5-404.3, aggravated sexual abuse of a child, the court may suspend execution of 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 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:
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Terms Used In Utah Code 76-5-406.5- Act: means a voluntary bodily movement and includes speech. See Utah Code 76-1-101.5
- Bodily injury: means physical pain, illness, or any impairment of physical condition. See Utah Code 76-1-101.5
- Conduct: means an act or omission. See Utah Code 76-1-101.5
- Conviction: A judgement of guilt against a criminal defendant.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Offense: means a violation of any penal statute of this state. See Utah Code 76-1-101.5
- Person: means an individual, public or private corporation, government, partnership, or unincorporated association. See Utah Code 76-1-101.5
- Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
- written: includes any handwriting, typewriting, printing, electronic storage or transmission, or any other method of recording information or fixing information in a form capable of being preserved. See Utah Code 76-1-101.5
| (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 4, 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. |
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