The office of the Utah Attorney General at the Capitol in Salt Lake City is pictured on Tuesday, Jan. 16, 2024. (Photo by Spenser Heaps for Utah News Dispatch)
A Utah state senator said the Utah Attorney General’s Office, under the leadership of Sean Reyes, used lawmakers as “pawns” to advocate for increased penalties for certain sex crimes, which critics argue would lead to more people being convicted of first-degree felonies.
The comment came on Friday morning from Sen. Todd Weiler, R-Woods Cross, during a Senate Judiciary, Law Enforcement, and Criminal Justice Committee meeting where lawmakers were considering a bill that makes a number of tweaks to the state criminal code regarding sex crimes involving children.
Sponsored by Sen. Karen Kwan, D-Taylorsville, SB144 passed out of the committee after a 5-2 vote, with Weiler and Sen. Lincoln Fillmore, R-South Jordan, voting “no.”
Weiler’s opposition, he told the committee, in part stems from a controversial provision in the bill that would increase the penalty for someone involved in the production and distribution of child sexual abuse material — also referred to as child pornography — from a second-degree felony, to a first-degree penalty.
Under current law, distributing or producing child sexual abuse material is a second-degree felony unless the victim is under 14 years old. In that case, the perpetrator can be charged with a first-degree felony. Kwan’s bill would eliminate that carveout, enhancing the penalty across the board.
Assistant Attorney General Carl Holland, who presented the bill with Kwan, described a situation where a group of men filmed the rape of a 15-year-old girl. The man convicted of filming and distributing the video faced the same criminal penalty as someone who “simply downloaded pictures of some stranger online.”
“But that filming and distribution caused a different magnitude of harm that this victim is going to have to deal with for the rest of their life,” Holland said. “Distribution is different. Distribution does not permit victims to heal.”
First-degree felonies are reserved for the most serious crimes, like murder, rape or child kidnapping, and critics of the bill worry about putting the distribution of child sexual abuse material on the same plane. Plus, the bill changes the language in existing code so someone who downloads child sexual abuse material — possibly on accident — but doesn’t view it, could still be hit with a first-degree felony.
“If someone kidnapped the child, instead of photographing them, and murdered them, it would also be a first-degree felony,” said Weiler, an attorney. “So you want to elevate photographing a child to essentially the same crime as murdering them?”
The bill also undoes an agreement that happened more than two years ago between lawmakers, defense attorneys and the Utah Attorney General’s Office, which added to Weiler’s concerns.
In 2023, Sen. Chris Wilson, R-Logan, proposed a similar bill, which raised the same concerns from the same Senate committee and defense attorneys. “For the very first time, it created a first-degree felony for a hands-off sexual offense,” said Mark Moffat with the Utah Defense Attorney Association.
Moffat met with Wilson and representatives from the attorney general’s office, and negotiated the bill at length, resulting in the current state code which imposes a first-degree felony if the victim is under 14 years old.
But over the summer, Weiler says, the attorney general’s office tried to undo those negotiations, approaching Kwan and Rep. Stephen Whyte, R-Mapleton, who is sponsoring a similar bill that already passed the House.
“The attorney general’s office circumvented that process and went to Sen. Kwan and Rep. Whyte to get everything that they wanted in Sen. Wilson’s bill. They left me out of that process, they left out the other members of my committee from two years ago that were involved. And I believe, unfortunately, they used Sen. Kwan and Rep. Whyte as pawns,” Weiler said on Friday, before clarifying it was “long before Derek Brown was elected, so it all happened under Sean Reyes.”
Kwan said she wasn’t aware of the history behind the bill. Regardless, she said there’s a need to advance it. The internet is ever evolving, she said, and in the two years since the negotiations took place, a lot has changed.
“The internet moves very quickly and these perpetrators are able to find loopholes, and we need to make sure we are protecting the kids at whatever age they are,” she said. “This is a lifelong sentence for our victims who are going through this and get revictimized every time those pictures get shared.”
‘We’ve enhanced penalties over and over again’
Why does raising the penalty matter? Isn’t it good to throw harsher charges at people involved in the production and distribution of child sexual abuse material?
“We’re not here to say it doesn’t cause damage,” said Moffat. “But there’s a significant difference between viewing images and physically assaulting a child.”
According to critics of the bill, and the legislature’s affinity for increasing punishments and creating new criminal penalties, the approach can lead to a loss in taxpayer dollars without actually reducing crime.
With new laws, is Utah holding criminals accountable or adding to mass incarceration?
“Most of these (bills) are increasing consequences for behavior that is already illegal,” said Moffat. “When you increase penalties, you increase the exposure that people have in prison.”
That could lead to overcrowding, which can make prisons less safe — and in turn can make it harder to recruit and retain employees. Bills that impose mandatory minimum sentences also take discretion away from courts and the Utah Board of Pardons & Parole.
Ultimately the bill passed, but some Republicans on the committee Friday seemed hesitant before voting “yes.”
Sen. Mike Mckell, R-Spanish Fork, said “there are still some concerns that need to be worked out,” while Sen. Calvin Musselman, R-West Haven, said lawmakers should be “cautious” moving forward.
“We’ve enhanced penalties over and over again. I’ve never seen a reduction. On anything. Ever,” Musselman said.
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