The Law and Order Code of the Ute Indian Tribe of the Uintah and Ouray Reservation

I. GENERAL PROVISIONS

A. Introductory Provisions

§13-1-1. Name and Citation.

This title shall be known and may be cited as the ''Ute Indian Criminal Code,'' and references in this part to ''Code'' shall refer to this Code unless another is clearly indicated.

§13-1-2. Effective Date.

This Code shall apply to all offenses as herein defined occurring on or after its effective date. If all or any part of any offense was committed prior to such date, the offense shall be governed by the prior existing law except that defenses enumerated herein shall apply to all offenses tried after the effective date.

§13-1-3. Purpose and Construction.

(1) The provisions of this Code shall be construed in accordance with these general principles and
purposes:

(a) to forbid and prevent the commission of offenses and give fair warning of conduct which is declared to be an offense;

(b) to define adequately the conduct and mental state which constitute each offense and safeguard conduct that is without fault from condemnation;

(c) to prescribe penalties which are proportionate to the seriousness of the offense and which permit recognition of differing rehabilitative needs of individual offenders while at the same time recognizing the need of society to protect itself, when necessary, from offenders

(d) to prevent arbitrary and oppressive treatment of persons accused or convicted of offenses and to promote the correction and rehabilitation of such persons.

(2) This Code shall not be strictly construed but shall be construed according to the fair import of the terms used to promote fairness and justice and accomplish the general purposes set forth herein.

§13-1-4. Exclusiveness of Offenses.

No conduct constitutes an offense unless so declared by this Code, or by any other provisions of this Law and Order Code, or by any other Tribal resolution or ordinance or by federal law.

§13-1-5. Civil Liability Unaffected.

This Code does not change, suspend or otherwise affect any civil or other liability, other than criminal liability as defined herein, which would otherwise arise from any conduct defined herein.

§13-1-6. Severability.

If any provision of this Code or the application of any provision of this Code to any person or circumstance is held invalid, the remainder of this Code shall not be affected thereby.

B. Multiple Prosecutions and Double Jeopardy.

§13-1-7. Prosecution for Multiple Offenses.

When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:

(1) one offense is included in the other; or

(2) one offense consists only of a conspiracy, solicitation, or an attempt to commit the other; or

(3) inconsistent findings of fact are required to establish the offenses; or

(4) the offenses only differ in that one is defined to prohibit a specific kind of conduct and the other prohibits the same conduct generally; or

(5) the offense is defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the Code provides that specific periods of such conduct constitute separate offenses.

§13-1-8. Limitation.

Except as provided in the next section, below, a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of the Ute Tribal Court.

§13-1-9. Separate Trials.

Upon application of any party and if justice so requires, the Court may order that separate trials be held for two or more offenses based on the same conduct or arising from the same criminal episode.

§13-1-10. Included Offenses.

(1) A defendant may be convicted of an offense included in an offense charged in the complaint without having been specifically charged with such included offense. An offense is so included when:

(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or

(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

(2) The Court need not charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

§13-1-11. Double Jeopardy.

(1) If a defendant has been prosecuted for one or more offenses arising out of a single criminal episode or the same facts as the original prosecution; a subsequent prosecution for the same or a different offense arising out of such episode or facts is barred if:

(a) the subsequent prosecution is for an offense that was or should have been tried under this Code in the former prosecution, unless such subsequent trial has been ordered as a separate trial by the judge; and

(b) the former prosecution:

(i) resulted in acquittal; or

(ii) resulted in conviction; or

(iii) was improperly terminated; or

(iv) was terminated by a final order of judgment for the defendant that has not been reversed, set aside or vacated and that necessarily required a determination inconsistent with a fact that must be established to secure conviction in the subsequent prosecution.

(2) There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of facts or in a determination that there was insufficient evidence to warrant conviction. A finding of guilty of a lesser included offense is an acquittal of the greater offense even though the conviction for the lesser included offense is subsequently reversed, set aside, or vacated.

(3) There is a conviction if the prosecution resulted in a judgment of guilty that has not been reversed, set aside, or vacated; a verdict of guilty that has not been reversed, set aside, or vacated and that is capable of supporting a judgment; or a plea of guilty accepted by the Court.

(4) There is an improper termination of prosecution if the termination takes place before the verdict, is for reasons not amounting to an acquittal, and takes place after a jury has been impanelled and sworn in, or, if the matter was to be tried without a jury, after the first witness is sworn. However, termination of prosecution is not improper if:

(a) the defendant consents to the termination; or

(b) the defendant waives his right to object to the termination; or

(c) the Court finds and states for the record that the termination is necessary because:

i) it is physically impossible to proceed with the trial in conformity to the law; or

ii) there is a legal defect in the proceeding not attributable to the prosecution that would make any judgment entered upon a verdict reversible as a matter of law; or

(iii) prejudicial conduct in or out of the court room not attributable to the prosecution makes it impossible to proceed with the trial without injustice to the defendant or to the prosecution; or

(iv) the jury is unable to agree on a verdict; or

(v) a false statement of a juror on voire dire prevents a fair trial. (5) A subsequent prosecution of an offense is not barred if the former prosecution resulted in a judgment of guilt held invalid in a subsequent proceeding on a writ of habeas corpus, coram nobis or similar collateral attack.

(6) Prosecution of an offense is not barred by virtue of the fact that the defendant could be or has been charged under 18 U.S.C.A. §1153 (so-called Major Crimes Act) unless such charge has, in fact, resulted in a conviction or acquittal of the defendant by a federal court following trial.

C. Burden of Proof

§13-1-12. Burden and Presumption of Innocence.

(1) A defendant in a criminal proceeding is presumed to be innocent until each element of the offense against him is proved beyond a reasonable doubt. In the absence of such proof the defendant shall be acquitted.

(2) By ''element of the offense'' is meant:

(a) the conduct, attendant circumstances or results of conduct proscribed, prohibited, or forbidden in the definition of the offense; plus

(b) the culpable mental state required; but

(c) jurisdiction is not an element of the offense nor is the statute of limitations or any other matter similarly unconnected with the harm or evil, incident to conduct, sought to be prevented by the offense nor is the existence of justification or excuse as defenses to the offense, and such may be established by a preponderance of the evidence.

§13-1-13. Negating Defenses.

The prosecution need not negate any defense either in the complaint or by proof unless the defense is in issue as a result of evidence presented at trial by either side, or unless the defense is an affirmative defense, and the defendant has presented evidence of such.

§13-1-14. Presumptions of Fact.

An evidentiary presumption established by this Code has the following consequences:

(1) When the evidence of facts which support the presumption exist, the issue of the existence of the presumed fact must be submitted to the jury unless the Court is satisfied that the evidence as a whole clearly negates the presumed fact;

(2) In submitting the issue of the presumed fact to the jury, the Court shall charge the jury that while the presumed fact must on all evidence be proved beyond a reasonable doubt, the law regards the facts that give rise to the presumed fact as evidence of the presumed fact.

II. PRINCIPLES OF CRIMINAL RESPONSIBILITY

§13-2-1. Acts and Omissions to Act.

(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

(2) The following are not voluntary acts within the meaning of this section:

(a) a reflex or convulsion;

(b) a bodily movement during unconsciousness or sleep;

(c) conduct during hypnosis;

(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or

(b) a duty to perform the omitted act is otherwise imposed by law. (4) Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.


§13-2-2. Culpability General Requirements.

(1) A person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each element of the offense, or unless his acts constitute an offense involving strict liability.

(2) Kinds of culpability defined are:

(a) Purposely: a person acts purposely with respect to an element of an offense when:

i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances, or he believes or hopes that they exist.

(b) Knowingly: a person acts knowingly with respect to an element of an offense when:
i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
(c) Recklessly: a person acts recklessly with respect to an element of an offense when he consciously disregards a substantial and unjustifiable risk that the element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

(d) Negligently: a person acts negligently with respect to an element of an offense when he should be aware of a substantial and unjustifiable risk that the element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

(e) Strict Liability: an element of an offense shall involve strict liability only when the definition of the offense or element clearly indicated a legislative purpose to impose strict liability for an element of the offense by use of the phrase ''strict liability'' or other terms of similar import, and when so used no proof of a culpable mental state is required to establish the commission of the element or offense.

(3) When the culpability sufficient to establish an element of an offense is not specifically prescribed, such element is established if a person acts purposely, knowingly, or recklessly with respect thereto.

(4) When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

(5) When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element is also established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element is also established if a person acts purposely.

(6) When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the offense.

(7) When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is or should be aware of a high probability of its existence, unless he actually believes that it does not exist.

(8) A requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.

(9) Neither the knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense so provides.

(10) When the grade or degree of an offense depends on whether the offense is committed purposely, knowingly, recklessly, or negligently, its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any element of the offense.

§13-2-3. Causal Relationships Between Conduct and Result.

(1) Conduct is the cause of a result when:

(a) it is an antecedent but for which the result in question would not have occurred; and

(b) the relationship between the cause and result satisfies any additional causal requirements imposed by this Code or the definition of the offense.

(2) When a particular mental state is specified in conjunction with an element of an offense, proof of that element is not avoided because the actual result differed from that intended or that which was probable or likely under the circumstances either in kind or degree or because a different person or different property was injured or affected than that intended or than that which was probable or likely under the circumstances, unless such differences are sufficient without consideration of the mental state involved to constitute a defense or avoidance or unless such differences are of such a magnitude that it would be unjust to find the element involved in light of such differences.

§13-2-4. Ignorance or Mistake.

(1) Ignorance or mistake as to a matter of fact or law is a defense only if:

(a) the ignorance or mistake negates a specific mental state required to establish an element of the offense; or

(b) the law provides that the actual state of mind which existed itself constitutes a defense.

(2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense if the situation had been as he supposed in which the punishment available upon conviction shall not exceed that prescribed for the other offense.

(3) A belief that conduct does not legally constitute an offense is a defense for prosecution of an offense based on that conduct only when:

(a) the enactment defining the offense is not known to the actor and has not been published or reasonably made available prior to the conduct alleged; or

(b) the actor acted in reasonable reliance upon an official statement of law contained in a subsequent enactment or an interpretation rendered by a judge or presiding Tribal body in a written opinion. In either case the defendant shall have the burden of proving, by a preponderance of the evidence, his defense under this subsection.

§13-2-5. Liability for Conduct of Another.

(1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for whom he is legally accountable, or both.

(2) A person is legally accountable for the conduct of another person when:

(a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage~e in such conduct; or

(b) he is made accountable for the conduct of such other person by this Code or the definition of the offense; or

(c) he is an accomplice of such other person in the commission of the offense.

(3) A person is an accomplice of another person in the commission of an offense if:

(a) with the purpose promoting or facilitating the commission of an offense, he

i) solicits such other person to commit it; or

ii) aids or agrees or attempts to aid such other person in planning or committing it; or

iii) having legal duty to prevent the commission of the offense, fails to make proper effort to do so; or
(b) his conduct is expressly declared by law to establish his complicity.

(4) When causing a particular result is an element of an offense an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

(5) A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for whom he is legally accountable, unless such liability is inconsistent with the purpose of his incapacity.

(6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:

(a) he is a victim of that offense; or

(b) the offense is so defined that his conduct is inevitably incident to its commission; or

(c) he terminates his complicity prior to the commission of the offense and

i) wholly deprives it of effectiveness in the offense; or

ii) gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has immunity from prosecution or has been acquitted.

§13-2-6. Corporations and Unincorporated Associations.

(1) A person is legally accountable for any conduct he performs or causes to be performed in the name of a corporation or unincorporated association or in its behalf to the same extent as if it were performed in his own name or behalf.

(2) Whenever a duty to act is imposed by law upon a corporation or unincorporated association, any agent of the corporation or association having primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the required act to the same extent as if the duty were imposed by law directly upon himself.

(3) When a person is convicted of an offense by reason of his legal accountability for the conduct of a corporation or an unincorporated association, he is subject to the sentence authorized by law when a natural person is convicted of an offense of the class involved.

§13-2-7. Intoxication.

(1) Except as provided in subsection 4 of this section, intoxication of the actor is not a defense unless it negates an element of the offense.

(2) When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.

(3) Intoxication does not, in itself, constitute a mental disease as that term is used in this Code.

(4) Intoxication which (a) is not self-induced, or (b) is the result of intoxication excessive in degree given the amount of intoxicant, to which result the actor does not know he is susceptible, is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its wrongfulness or to conform his conduct to the requirements of the law.

(5) ''Intoxication'' means a disturbance of mental or physical capabilities and/or capacities resulting from the introduction of substances into the body. Except as otherwise provided in this Code, intoxication can be proven by its external indications and no proof of specific consumption or blood alcohol content is necessary, though such is permissible to prove such.

§13-2-8. Duress.

(1) Except as herein otherwise provided, it is an affirmative defense that the actor engaged in conduct charged to constitute an offense because he was coerced to do so by the use of, or threat to use, unlawful force against his person or the person of another, which a law-abiding person of reasonable firmness in his situation would have been unable to resist.

(2) The defense provided in this section is unavailable to a person who intentionally, knowingly, or recklessly places himself in a situation in which it is probable that he will be subjected to duress.

(3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under subsection 1 above. No presumption of duress arises from the mere presence of the husband at the time a woman acted.

(4) The defense provided in this section is unavailable in any situation where the coerced conduct threatens to cause death or serious bodily harm to some person other than the actor or does in fact cause such harm.

§13-2-9. Consent.

(1) The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negates an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.

(2) When conduct is charged to constitute an offense because it threatens to cause or causes bodily harm, consent to such conduct or to the infliction of such harm is a defense only if:

(a) the bodily harm consented to or threatened by the conduct consented to is not serious; or

(b) the conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful athletic contest, competitive sport or other lawful activity; or

(c) the consent establishes a justification for the conduct under this Code.

(3) Unless otherwise provided by this Code or the law defining the offense, assent does not constitute consent if:

(a) it is given by a person who is legally incompetent to authorize the conduct charged to constitute an offense; or

(b) it is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known to the actor to be unable to make a reasonable judgment as to the nature 6r the harmfulness of the conduct charged to constitute the offense; or

(c) it is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or

(d) it is induced by force, duress, or deception.

§13-2-10. Entrapment.

(1) A public law enforcement officer or official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting an offense by either:

(a) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or

(b) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.

(2) The defense afforded by this section shall be unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.

(3) Except as provided in (2) above, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried to and decided by the Court and not by the jury. Evidence of past offenses shall be admissible only if the defendant takes the stand in his own defense.

§13-2-11. Mental Disease or Defect.

(1) In any prosecution for an offense, it shall be a defense that the defendant, at the time of the conduct upon which the prosecution is based, as a result of mental disease or defect, lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

(2) As used in this section, the terms ''mental disease'' or ''defect'' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(3) The defense afforded by this section shall not be available unless notice of intent to rely on such defense is given at least two weeks before trial. By giving such notice, the defendant will be deemed to have consented to be examined for the prosecution by not more than two professional medical or other experts for the purpose of ascertaining the state of defendant's mental health.

(4) No person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.

§13-2-12. Justification.

Conduct which is justified is a defense to prosecution for any offense based on the conduct. The defense of justification may be claimed:

(1) when the actor's conduct is in defense of persons or property or as otherwise described in the next succeeding 5 sections; or

(2) when the actor's conduct is reasonable and in fulfillment of his duties as a Tribal or governmental officer or employee; or

(3) when the actor's conduct is reasonable discipline of minors by parents, guardians, teachers or other persons in loco parentis; or

(4) when the actor's conduct is reasonable discipline of persons in custody under this Code.

§13-2-13. Force in Defense of Persons.

(1) A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such force is necessary to defend himself or a third person against such other's imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or serious bodily injury only if he reasonably believes that such force is necessary to prevent death or serious bodily injury to himself or a third person.

(2) A person is not justified in using force under the circumstances specified in 1) of this section if he:

(a) initially provokes the use of force against himself with the intent to use force as an excuse to inflict bodily harm upon the assailant; or

(b) is attempting to commit, committing, or fleeing after the commission of an offense; or

(c) was the aggressor or was engaged in a combat by agreement, unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other notwithstanding continues or threatens to continue the use of unlawful force.

§13-2-14. Force in Arrest.

Any person is justified in using any force, except deadly force, which he reasonably believes to be necessary to effect an arrest or to defend himself or another from bodily harm while making an arrest.

§13-2-15. Deadly Force by Law Enforcement Officer.

A law enforcement officer, or any person acting by his command in his aid and assistance is justified in using deadly force when:

(1) in effecting the arrest or preventing an escape from custody following an arrest and the officer reasonably believes both that:

(a) such force is necessary to prevent the arrest from being defeated by resistance or escape; and

(b) the person to be arrested is attempting to escape by use of a deadly weapon.

(2) the officer is in the performance of his legal duty or the execution of legal process and reasonably believes the use of force is necessary to protect himself or others from imminent danger to life.

§13-2-16. Force in Defense of Habitation.

A person is justified in using force against another when and to the extent that he reasonably believes that the force is necessary to prevent or terminate the other's unlawful entry into or attack upon his place of habitation; however, he is justified in the use of force which is intended or likely to cause death or serious bodily injury only if:

(1) the entry is made or attempted in a violent and tumultuous manner and he reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any parson, dwelling or person therein and that the force is necessary to prevent the assault or offer of personal violence; or

(2) he reasonably believes that the entry is made or attempted for the purpose of committing a Class A offense or other offense involving threat of bodily injury therein and that such force is necessary to prevent the commission of such offense.

§13-2-17. Force in Defense of Property.

A person is justified in using force, other than deadly force against another when and to the extent that he reasonably believes that force is necessary to prevent or terminate criminal interference with real or personal property:

(1) lawfully in his possession; or

(2) lawfully in the possession of his immediate family; or

(3) belonging to a person whose property he has a legal duty to protect.

§13-2-18. Justification of a Defense; Civil Remedies.

(1) In any prosecution based on conduct which is justified as specified in this Code, such justification is an affirmative defense.

(2) The fact that conduct is justifiable as specified in this Code does not abolish or impair any civil right or remedy which might arise from such conduct.

§13-2-19. Choice of Evils.

(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

(b) neither this Code nor any other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

III. SENTENCES AND PUNISHMENTS

A. Classification of Offenses

§13-3-1. Sentencing in General.

(1) A person adjudged guilty of an offense under this Code shall be sentenced in accordance with this part.

(2) Penal laws enacted or adopted after the effective date of this Code shall be classified for sentencing purposes in accordance with the provisions in this part.

§13-3-2. Designation of Offenses.

Offenses are designated as Class A offenses, Class B offenses, and Class C offenses.


§13-3-3. Class of Offense Not Specified.

Any offense for which no penalty or sentence is specified or which is not specifically designated as a certain class of offense shall be treated for purposes of sentencing and punishment as a Class C offense.

B. Sentencing

§13-3-4. General Principles.

The sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.

§13-3-5. Sentences and Combinations of Sentences; Civil Penalties.

(1) A Court may, as provided in this part, sentence a person adjudged guilty of an offense to any one of the following sentences or a combination of such sentences:

(a) to pay a fine; or

(b) to removal from and/or disqualification of public or private office, but only if such is specifically provided for as a punishment for conviction of a specific offense; or

(c) to probation and/or suspension of sentence on such terms and conditions as the Court may direct; or

(d) to imprisonment or confinement, either full or part time.

(2) A Court shall also have the authority to order a person adjudged guilty of an offense to pay any or all of the following amounts or do the following acts:

(a) pay court costs not to exceed $25.00; or

(b) pay any civil penalty provided by law; or

(c) pay money damages, surrender property, or perform any other act for the benefit of any person or party injured personally or in his property by the person adjudged guilty provided such injuries are fairly attributable to the act or failure to act constituting the offense for which guilt was adjudged.

(3) This part shall not deprive a Court of authority to cite for contempt, cancel or suspend a license, forfeit property, or do any other act or make any other order authorized by law.

§13-3-6. Maximum Fines and Sentences of Imprisonment.

(1) A person convicted of an offense may be sentenced as follows:

(a) if the offense is a Class A offense, to a term of imprisonment not to exceed 6 months and to a fine not to exceed $500.00;

(b) if the offense is a Class B offense, to a term of imprisonment not to exceed 3 months and to a fine not to exceed $200.00;

(c) if the offense is a Class C offense, to a term of imprisonment not to exceed 45 days and to a fine not to exceed $100.00.

(2) The terms of imprisonment listed above apply only to full-time incarceration in the Tribal or some other jail or penitentiary and do not apply to full- or part-time residence or confinement in a medical or rehabilitative facility as a condition of probation or parole or as otherwise ordered by the Court.

(3) The fines listed above may be imposed in addition to any assessment of costs or other civil penalties and in addition to any amounts ordered paid as restitution.

§13-3-7. Payment of Fines and Other Monies.

(1) Fines shall be paid in cash unless upon request of the defendant the Court allows payment by commodities of like value, or by other means.

(2) The Court may, upon request of a defendant or upon its own motion, allow that any fines or other required payments be paid in installments and on conditions tailored to the means of the defendant.

(3) The imposition of incarceration should not be imposed as an automatic alternative to payment of a fine or other money, but rather a Court should upon default to pay a fine or other money as required, examine the reason for the default and may, if justice requires, impose an additional sentence of incarceration of no more than one day of incarceration for each $4.00 of the required money left unpaid.

(4) The methods available for collecting a civil judgment shall be available to collect any unpaid money upon order of the Court following a failure to make any required payment and ascertainment of a reason therefor.

(5) When justice requires, the Court may revoke or remit a fine or any unpaid portion thereof or any other monies required to be paid, or may modify the terms and conditions of payment.

§13-3-8. Decision to Impose a Fine.

In determining whether to impose a fine and its amount, the Court should consider:

(1) The financial resources of the defendant and the burden that payment of a fine will impose with due regard to his other obligations;

(2) The ability of the defendant to pay a fine on an installment basis or on other conditions to be fixed by the Court;

(3) The extent to which payment of a fine will interfere with the ability of the defendant to make any ordered restitution or reparation to the victim of the crime; and

(4) Whether there are particular reasons which make a fine appropriate as a deterrent to the offense involved or appropriate as a corrective measure for the defendant.

§13-3-9. Concurrent and Consecutive Sentences.

(1) Unless the Court shall direct otherwise in its pronouncement of sentence, all sentences shall run concurrently and not consecutively.

(2) The Court shall consider the gravity and circumstances of the offenses and the history, character, and rehabilitative needs of the defendant as well as the need to protect the public in determining whether to impose consecutive sentences.

(3) The Court shall not impose consecutive sentences for offenses arising out of a single course of criminal conduct, including solicitation and criminal conspiracy; unless the criminal conduct involved the death or serious bodily injury of any victim of the crime or a serious threat of such, or unless the offense was committed in a willful, malicious or aggravated manner and involved an offense against the person of the victim or victims.

(4) A consecutive sentence shall not be imposed unless the Court has obtained and considered a pre-sentence report from the Department of Probation and Parole and/or the Board for the Disposition of Offenders.

(5) In no event shall the maximum term of imprisonment imposed exceed 3 years from the date of sentencing.

(6) Whenever a sentence is imposed or sentences are imposed to run concurrently with the other or with sentences presently being served, the greater sentence shall be the term to be served with all lesser sentences merging therein, or, if equal sentences are imposed, they shall merge into one sentence, but in no event shall the imposition of one sentence cut short the time to be served on another sentence unless the Court specifically directs that such be the result.

§13-3-10. Credit.

(1) Credit against a term of imprisonment imposed following an adjudication of guilty shall be given to a defendant for all time spent in custody as a result of the criminal charge for which the sentence is imposed or as a result of the conduct on which such charge is based. Such credit shall apply to time spent in custody prior to trial, during trial, pending sentence, and pending resolution of an appeal.

(2) In case of re-prosecution for any reason of the same offense or an offense based on the same conduct for which a defendant has been imprisoned, credit shall be given for all time spent in custody under the prior prosecution as provided in subsection 1) above.

(3) Credit as provided in this section should be considered and computed by the Court at the time of sentencing.

§13-3-11. Reduction of Sentences.

(1) The Court may, upon motion of any party or its own motion, reduce or modify a sentence within a reasonable time after its imposition as provided in the Rules of Criminal Procedure if new factors bearing on the sentence become known. Such reduction or modification shall be done in open court.

(2) In the event that commitment to a special type of facility other than a jail or penitentiary is imposed or accepted as a condition of probation or parole, the Court may for good cause shown terminate or reduce such commitment.

(3) The Court shall have authority to terminate at any time continued supervision or the power revoke either a sentence not involving confinement or a sentence involving less than total confinement in a jail or penitentiary. The Court shall also have the power to lessen the conditions on which such sentences were imposed or lessen the time in which the power to revoke will exist.

(4) Except as otherwise specifically provided in this part, the Court shall not increase a term of imprisonment once it has been imposed.

§13-3-12. Board for the Disposition of Offenders.

(1) The Tribal Business Committee shall appoint a Board for the Disposition of Offenders to be composed of the following:

(a) A doctor or psychiatry or psychology licensed to practice medicine or psychology in the State of Utah;

(b) a criminologist or social worker with graduate training and a degree in such field from an accredited university;

(c) a probation and parole officer from the Tribal Adult Probation and Parole Department;

(d) the head of the Alcohol and Drug Abuse Rehabilitation program on the Reservation;

(e) such other persons as the Committee believes would be appropriate on such a Board;

(f) the trial judge who conducted the trial of an offender shall be a member of the Board for purpose of considering the disposition of such offender.

(2) The purpose and duties of the Board for the Disposition of Offenders in all cases referred to it as provided herein are:

(a) with the aid of the Adult Probation and Parole Department, to compile and consider the history and background of an offender;

(b) to consider the present social, economic, and family situation of the offender;

(c) to consider the actual or potential threat of further criminal activity by the offender and the need to protect the public from such;

(d) to consider the corrective and rehabilitative needs of the offender and the facilities available to the offender;

(e) based upon consideration of such factors, to make a recommendation to the Court regarding the sentencing of an offender.

(3) The Court shall defer immediate sentencing following pronouncement of a judgment of guilty and refer the offender to the Board for the Disposition of Offenders for their sentencing recommendation in the following cases:

(a) whenever the offender has been convicted of a Class A offense;

(b) whenever the offender has been convicted of an offense involving the use of alcohol or drugs by the offender;

(c) whenever the offender has been convicted of an offense involving the family relationship or involving any member of the offender's family as the victim of the offense;

(d) whenever the offender is under 21 years of age at the time of sentencing;

(e) whenever the Court shall be considering the imposition of consecutive sentences;

(f) whenever the offender shall have been convicted of two or more prior offenses in the 12-month period preceding the judgment of guilty in the present cause;

(g) whenever requested by the offender, unless such request reasonably appears to the Court to be for the sole purpose of delaying the pronouncement of sentence or some other improper motive;

(h) whenever the judge deems it appropriate or desirable to do so.

(4) The Board shall forward its recommendations together with any written reports on the defendant which it has considered to the Court with as little delay as is reasonably possible. A majority vote of the Board members shall determine the Board's recommendation in cases of disagreement, by the dissenting provided, however, that a minority recommendation may be included if desired Board members.

(5) The Court, upon receipt of the recommendations of the Board, shall consider and give weight to such recommendations but shall not be bound to follow such either in whole or in part, when pronouncing sentence on a defendant.

(6) In the event that the Board for the Disposition of Offenders has not been appointed or is for any reason unavailable or unable to meet, the Court shall not be required to defer immediate sentencing, but may, if it deems it advisable, defer sentencing and request such pre-sentence help as is available from Reservation sources.

§13-3-13. Sentencing Proceeding.

As soon as practicable after the determination of guilt and the examination of any pre-sentence reports or recommendations, a proceeding should be held at which the Court shall:

(1) hear submissions by the parties on the facts relevant to the sentence;

(2) hear argument by the defendant or his counsel on the applicability of various sentencing alternatives to the facts of the case;

(3) afford the defendant the opportunity to make a statement to the Court;

(4) in cases where guilt was determined by plea, inform itself, if not previously informed, of the existence of plea discussions or agreements and the extent to which they involve recommendations as to the appropriate sentence;

(5) make specific findings on all controverted issues of fact which are deemed relevant to the sentencing decision;

(6) ascertain and consider all credits due the defendant as a result of prior periods of incarceration;

(7) carefully state and assure that a record is made of the precise terms of the sentence imposed and assure that those responsible for executing the sentence be informed of such terms;

(8) state for the record the reasons for selecting the particular sentence imposed, unless the Court deems it to be in the best interests of the defendant not to do so;

(9) require that a record be kept of the sentencing proceeding with a verbatim recording or transcription of such if possible.

C. Suspension of Sentence and Probation

§13-3-14. Suspension of Sentence and Probation.

(1) Except as otherwise provided in this Code, the Court shall have the authority to suspend the imposition of sentence on a person who has been convicted of an offense and place him on probation as provided herein.

(2) When the Court suspends the imposition of sentence on a person who has been convicted of a crime or sentences him to be placed on probation, it shall attach such reasonable conditions, as authorized herein, as it deems necessary to insure that he will lead a law abiding life or likely to assist him to do so.

(3) The Court, as a condition of its order of probation,, may require the defendant:

(a) to meet his family responsibilities;

(b) to devote himself to a specific employment or occupation;

(c) to undergo available medical or psychiatric or other rehabilitative treatment and to enter and remain in a specified institution, when required for that purpose;

(d) to pursue a prescribed secular course of study or vocational training;

(e) to attend or reside in a facility established for the instruction, recreation or residence of persons on probation;

(f) to refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;

(g) to refrain from all use of intoxicants, narcotics, or drugs, the sale of which is controlled by the State or federal government, unless taken or used under a doctor's orders and obtained by a doctor's prescription;

(h) to have in his possession no firearm or other dangerous weapon unless granted written permission by the Court or the Adult Probation and Parole Department;

(i) to make restitution of the fruits of his crime or to make reparation, in an amount he can afford to pay, for the loss or damage caused thereby;

(j) to remain within the jurisdiction of the Court and to notify the Court or the probation officer of any change of address or employment;

(k) to report as directed to the Court or the probation officer and to permit the officer to visit his home;

(l) to post a bond, with or without surety, conditioned on the performance of any of the foregoing obligations;

(m) to satisfy any other conditions reasonably related to the rehabilitation of the defendant and not incompatible with his freedom of conscience or unduly restrictive of his liberty given his status as a probationer.

(4) When the Court sentences a person who has been convicted of a Class A offense or a Class B offense to be placed on probation, it may require him to serve a term of imprisonment not to exceed 30 days in the case of a Class A offense and 15 days in the case of a Class B offense as an additional condition of its order. Such term of imprisonment shall be counted as part of the period of the probation but shall not count as part of any sentence pronounced as a result of a revocation of probation.

(5) The defendant shall be given a copy of the requirements of his probation stated with sufficient specificity to enable him to guide himself accordingly.

§13-3-15. Period of Suspension or Probation; Modification.

(1) When the Court has suspended sentence or has sentenced a defendant to be placed on probation, the maximum period of the suspension or probation shall be 2 years, provided, however, that the maximum period will be imposed for Class B and C offenses only when such appears to be consistent with the rehabilitative needs of the defendant. Shorter periods may be imposed at the Court's discretion.

(2) During the period of suspension or probation, the Court, on application of the probation officer or of the defendant, or on its own motion, may modify the requirements imposed on the defendant or add further requirements consistent with the rehabilitative needs of the defendant or may discharge the defendant.

(3) Upon termination of the period of suspension or probation, or the earlier discharge of the defendant, the defendant shall be relieved of any obligations imposed by the order of the Court and shall have satisfied his sentence for the offense.

§13-3-16. Violation of Terms of Suspension or Probation.

(1) At any time before the discharge of the defendant or the termination of the period of suspension or probation:

(a) the Court may summon the defendant to appear before it or it may issue a warrant for his arrest;

(b) a probation or law enforcement officer, having probable cause to believe the defendant has failed to comply with a requirement imposed as a condition of the probation order or that he has committed another crime, may arrest him without a warrant;

(c) the Court, if there is probable cause to believe that the defendant has committed another crime or if he has been held to answer therefor, may commit him without bail, pending a determination of the charge by the Court;

(d) the Court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the probation order, or if he has been convicted of another crime, may revoke the suspension or probation and sentence or re-sentence the defendant as provided in this Code.

(2) When the Court revokes a suspension or probation, it may impose on the defendant any sentence that might have been imposed originally for the crime for which he was convicted, except that the defendant shall not be sentenced to imprisonment unless:

(a) he has been convicted of another crime; or

(b) his conduct indicates that his continued liberty involves undue risk that he will commit another crime; or

(c) such disposition is essential to vindicate the authority of the Court.

(3) The Court shall not revoke suspension or probation or increase the requirements imposed thereby except after a hearing upon written notice to the defendant of the grounds on which such action is proposed. The defendant shall have the right to hear and controvert the evidence against him, to offer evidence in his defense and to be represented by counsel of his choice at his own expense.

(4) Whenever a defendant is taken into and held in custody as provided in this section for violation of probation conditions other than the alleged commission of an offense, he shall be entitled to have his sentence considered by the Court within 48 hours of his confinement, unless he requests further time to prepare his defense.

§13-3-17. Order Removing Disqualification or Disability Based on Conviction.

(1) When the Court has suspended sentence or has sentenced the defendant to be placed on probation and the defendant has fully complied with the requirements imposed as a condition of such order and has satisfied the sentence, the Court may order that so long as the defendant is not convicted of another offense, the judgment shall not constitute a conviction for the purpose of any disqualification or disability imposed by law upon conviction of a crime or offense.

(2) Proof of a conviction as relevant evidence upon the trial or determination of any issue or for the purpose of impeaching the defendant as a witness is not a disqualification or disability within the meaning of this section.

§13-3-18. Final Judgment.

A judgment suspending sentence or sentencing a defendant to be placed on probation shall be deemed tentative to the extent such is modifiable as provided herein, but for all other purposes shall constitute a final judgment.

D. Parole.

§13-3-19. Eligibility for Parole.

(1) Except as otherwise provided herein, a defendant sentenced to and serving a term of imprisonment for more than 60 days shall be eligible to petition the Court for a grant of release on parole.

(2) Parole may be granted as provided herein to a defendant who has demonstrated good behavior and faithful performance of duties while incarcerated.

(3) Parole shall not be considered or granted to a defendant who has been convicted of an offense involving the death or serious bodily injury of a victim of the offense unless the defendant has been sentenced to consecutive sentences totaling in excess of one year and such consideration may be given only after the defendant has served one year under such sentences.

(4) The provisions on parole contained herein shall apply only to confinement in a jail or penitentiary and shall not apply to confinement ordered in a medical or rehabilitative facility.

§13-3-20. Petition for Parole.

(1) Parole may be granted by the Court on its own motion or on the petition of an incarcerated defendant.

(2) Any defendant eligible for parole as set forth above may petition the Court for consideration of parole. Such petition may be made on a form to be provided for such purposes by the Court, at a time no earlier than the expiration of half the period of imprisonment ordered by the Court. If a defendant desires, he will be allowed opportunity to contact and meet with counsel on the jail premises to aid him in the preparation of his petition for parole. The completed petition shall be forwarded without unnecessary delay to the Court by the defendant's counsel or the jailer.

§13-3-21. Consideration of Parole.

(1) The Court, upon receipt of a petition for parole, shall cause the clerk of the Court to prepare a report stating the term for which the defendant was sentenced, the offenses charged, the time served and may include a sworn statement from a Tribal jailer regarding the conduct of the defendant while incarcerated and any other information deemed relevant by the Court.

(2) Unless it appears that the defendant is not eligible for parole as a result of some reason other than his behavior while incarcerated, the judge shall schedule a parole hearing within 14 days and shall request a report from the Board for the Disposition of Offenders and/or the Adult Probation and Parole Department on the background and rehabilitative needs of the defendant.

(3) A hearing shall be held at which the defendant shall have the right to be represented by counsel and present evidence. The Court may, upon consideration of all relevant factors, grant parole to a defendant upon any or all of the conditions set forth in this Code for the granting of probation and for like periods as if probation were then imposed.

(4) The Court's decision to grant or refuse parole shall be reviewable only for abuse of discretion.


§13-3-22. Powers Over Parolee.

Once parole is granted, the defendant shall be subject to the same procedures and conditions as if he were originally placed on probation and the Court shall have the power to modify or revoke the probation under like rules and circumstances as provided in this Code for defendants on probation.

IV. OFFENSES

A. Inchoate Offenses

§13-4-1. Attempt.

(1) A person is guilty of an attempt to commit an offense if, acting with the kind of culpability otherwise required for the commission of the offense, he engages in conduct constituting a substantial step towards commission of the offense.

(2) Conduct does not constitute a substantial step towards the commission of an offense unless it is strongly corroborative of the actor's intent to commit the offense.

(3) No defense to the offense of attempt shall arise:

(a) because the offense attempted was actually committed; or

(b) due to the factual or legal impossibility of consummating the intended offense if the offense could have been committed had the circumstances been as the actor believed them to be.

(4) Except as otherwise provided in this Code, attempt shall be:

(a) a Class A offense if the attempted offense was a Class A offense;

(b) a Class B offense if the attempted offense was a Class B offense;

(c) a Class C offense if the attempted offense was a Class C offense.

§13-4-2. Criminal Conspiracy.

(1) A person is guilty of criminal conspiracy when he, intending that conduct constituting a crime be performed, agrees with one or more persons to engage in or cause the performance of such conduct and any one of them commits an overt act in pursuance of the conspiracy, except that where the offense is a Class A offense the overt act is not required for the commission of conspiracy.

(2) Conspiracy to commit:

(a) a Class A offense is a Class A offense;

(b) a Class B offense is a Class B offense;

(c) a Class C' offense is a Class C offense.

§13-4-3. Solicitation.

(1) A person is guilty of solicitation when he, intending that another person commit an offense, entices, advises, incites, orders, or otherwise encourages such other person to commit an offense.

(2) Solicitation to commit:

(a) a Class A offense is a Class B offense;

(b) a Class B offense is a Class C offense;

(c) a Class C offense is not an offense.

B. Offenses Against the Person

1. Assault and Related Offenses.

§13-4-4. Simple Assault.

(1) A person is guilty of simple assault if he:

(a) attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another; or

(b) negligently causes bodily injury to another with a deadly weapon; or

(c) attempts by a show of force or violence to put another in fear of imminent serious bodily injury; or

(d) recklessly endangers another by an act or omission to act which threatens to cause serious bodily harm to another, whether or not such harm actually occurs.

(2) Simple Assault is a class B offense unless committed in a fight or scuffle entered into by mutual consent, in which case, it is a Class C offense.

§13-4-5. Aggravated Assault.

(1) A person is guilty of aggravated assault if he:

(a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or

(b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(c) intentionally or knowingly uses a deadly weapon to put another in fear of imminent serious bodily injury.

(2) Aggravated Assault is a Class A offense.

§13-4-6. Mayhem.

(1) A person is guilty of mayhem if he unlawfully and purposely or knowingly;

(a) deprives a human being of a member of his body or disables or renders it useless; or

(b) cuts out or disables the tongue, puts out an eye, or slits the nose, ear or lip of another.

(2) Mayhem is a Class A offense.

§13-4-7. Terroristic Threats.

(1) A person is guilty of terroristic threats if he threatens verbally or in writing to commit any offense involving violence with intent to terrorize another or place such other in fear of imminent serious bodily injury or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

(2) Terroristic threats is a Class B offense, unless serious public inconvenience or the evacuation of a building, place of assembly or facility of public transportation is intended by the actor or actually results, in which case it is a Class A offense.

2. Criminal Homicide and Related Offenses.

§13-4-8. Criminal Homicide.

(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being.

(2) Criminal homicide is a Class A offense, and if the offense is found to have been committed purposely or knowingly, no suspension of sentence, probation or parole shall be granted, and the maximum fine and incarceration shall be imposed.

§13-4-9. Vehicular Homicide.

(1) A person is guilty of vehicular homicide if, while under the influence of an alcoholic beverage, intoxicating liquor, a controlled substance, or any drug, to a degree which renders the person incapable of safely driving a vehicle, he causes the death of another by operating a motor vehicle in a reckless, negligent, or careless manner.

(2) The presumptions established in the Utah Code Annotated as adopted by reference into this Law and Order Code regarding blood alcohol content and the presumption of intoxication shall be applicable to this Section, and any chemical test administered on a defendant with his consent or after his arrest, whether with or against his consent, shall be admissible in accordance with the rules of evidence.

(3) For purpose of this Section, a motor vehicle is any self-propelled vehicle and includes, but is not limited to, any automobile, truck, van, motorcycle, train, engine, water craft, aircraft or snowmobile.

(4) Vehicular homicide is a Class A offense.

§13-4-10. Causing a Suicide.

(1) A person is guilty of causing a suicide if he purposely causes a suicide by force, duress, or deception.

(2) Causing a suicide is a Class A offense.

§13-4-11. Aiding or Soliciting a Suicide.

(1) A person is guilty of aiding or soliciting a suicide if he purposely aids or solicits another to commit suicide.

(2) Aiding or soliciting a suicide is a Class A offense if the defendant's conduct has actually caused or contributed substantially to a suicide or an attempted suicide; otherwise, it is a Class C offense.

3. Kidnapping and Related Offenses.

§13-4-12. Kidnapping.

(1) A person is guilty of kidnaping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes:

(a) to hold for ransom or reward, or as a shield or hostage; or

(b) to facilitate commission of any offense or flight thereafter; or

(c) to inflict bodily injury on or to terrorize the victim or another; or

(d) to interfere with the performance of any Tribal, governmental or political function.

(2) A removal, restraint, or confinement is unlawful within the meaning of this part if it is accomplished by force, threat or deception, or, in the case of a person under the age of 14 or incompetent, if it is accomplished without the consent of a parent, guardian or other person responsible for general supervision of his welfare.

(3) Kidnapping is a Class A offense.

§13-4-13. False Imprisonment.

(1) A person is guilty of false imprisonment if he knowingly restrains another unlawfully so as to interfere with his liberty.

(2) False imprisonment is a Class C offense unless the detention occurs under circumstances which expose the victim to a risk of serious bodily injury in which case it is a Class B offense.

§13-4-14. Custodial Interference.

(1) A person, whether a parent or other person, is guilty of custodial interference if:

(a) without good cause, he takes, entices, conceals, or detains a child under the age of 16 from his parent, guardian or other lawful custodian:

i) knowing he has no legal right to do so; and

ii) with intent to hold the child for a period substantially longer than any visitation or custody period previously awarded by a court of competent jurisdiction; or

(b) having actual physical custody of a child under the age of 16 pursuant to a judicial award of a court of competent jurisdiction which has given another person visitation or custody rights, and without good cause, he detains or conceals the child with intent to deprive the other person of his lawful visitation or custody rights; or

(c) without good cause he takes, entices or detains an incompetent or other person who has been committed by authority of law to the custody of another person or institution from the other person or institution, knowing he has no legal right to do so.

(2) Custodial interference is a Class C offense.


§13-4-15. Criminal Coercion.

(1) A person is guilty of criminal coercion if; with purpose to restrict unlawfully another's freedom of action to his detriment, he threatens to:

(a) commit any criminal offense; or

(b) accuse anyone of a criminal offense; or

(c) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business reputation; or

(d) take or withhold action as an official, or cause an official to take or withhold action.

(2) It is an affirmative defense to prosecution based on this section, except for subsection (a) above, that the actor believed the accusation or secret to be true or the proposed official action justified and that his purpose was limited to compelling the other to behave in a way reasonably related to the circumstances which were the subject of the accusation, exposure, or proposed official action; for example, as by refraining from further misbehavior, making good a wrong done, refraining from taking any action or responsibility for which the actor believes the other disqualified.

(3) Criminal coercion is a Class C offense, unless the threat is to commit a Class A offense or the actor's purpose is to cause the accomplishment of a Class A or Class B offense by the other, in which case it is a Class B offense.

4. Sexual Offenses.

§13-4-16. Rape.

(1) A male person who has sexual intercourse with a female not his wife is guilty of rape if:

(a) he compels her to submit by force or by the threat of imminent death, serious bodily injury, extreme pain, or kidnaping to be inflicted on her or anyone else; or

(b) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or

(c) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or

(d) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or

(e) the female is unconscious or he knows that she is unaware that a sexual act is being committed upon her or that she submits because she falsely supposes that he is her husband; or

(f) the female is less than 14 years old.

(2) Sexual intercourse includes intercourse per os or per anum, with some penetration, however slight; emission is not required.

(3) Rape is a Class A offense.

§13-4-17. Unlawful Sexual Intercourse.

(1) A male person is guilty of unlawful sexual intercourse if he has sexual intercourse with a female, not his wife, who is under 16 years of age, regardless of her consent.

(2) Unlawful sexual intercourse is a Class A offense except that when the male at the time of intercourse was no more than three years older than the female, and the female consented, it is a Class C offense. Evidence of the defendant's age in relation to the victim shall be raised by the defendant and need not be affirmatively proven by the prosecution.

§13-4-18. Deviate Sexual Intercourse.

(1) A person is guilty of deviate sexual intercourse if he engages in deviate sexual intercourse, or causes another to engage in deviate sexual intercourse and if:

(a) he compels the other person to participate by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or

(b) he compels the other person to participate by any threat that would prevent resistance by a person of ordinary resolution; or

(c) he has substantially impaired the other person's power to appraise or control his conduct by administering or employing without the knowledge of the other person drugs, intoxicants or other means for the purpose of preventing resistance; or

(d) he knows that the other person suffers from a mental disease or defect which renders him incapable of appraising the nature of his conduct or he knows that the other person is unconscious or submits because he is unaware that a sexual act is being committed upon him; or

(e) the other person is less than 16 years old.

(2) Deviate sexual intercourse means sexual intercourse per Os or per anum between human beings who are not husband and wife, or any form of sexual intercourse with an animal.

(3) Deviate sexual intercourse is a Class A offense.

§13-4-19. Sexual Assault.

(1) A person is guilty of sexual assault if he subjects another not his spouse to any sexual contact and:

(a) he knows that the conduct is offensive to the other person; or

(b) he knows that the other person suffers from a mental disease or defect which renders him incapable of appraising the nature of his conduct; or

(c) he knows that the other person is unaware that a sexual act is being committed; or

(d) he has substantially impaired the other person's power to appraise or control his conduct by administering or employing without the other's knowledge drugs, intoxicants, or other means for the purpose of preventing resistance; or

(e) the other person is less than 14 years old; or

(f) the other person is less than 16 years old and the actor is at least four years older than
the other person; or

(g) the other person is less than 21 years old and the actor is his parent, guardian or otherwise responsible for general supervision of his welfare; or

(h) the other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him.

(2) Sexual contact is any touching of the sexual or other intimate parts of the person of another or otherwise taking indecent liberties with another for the purpose of arousing or gratifying sexual desire of either party.

(3) Sexual assault is a Class B offense.

§13-4-20. Indecent Exposure.

(1) A person is guilty of indecent exposure if, for the purpose of arousing or gratifying sexual desire of himself or of any other person other than his spouse, he exposes his genitals.

(2) Indecent exposure is a Class C offense.


§13-4-21. Provisions Applicable to Sexual Offenses.

(1) The provisions of the code relating to sexual offenses shall not apply to conduct between married persons; provided, however, that for purposes of these provisions, persons living apart under a decree of judicial separation are not married.