76-5-412.2. Custodial sexual misconduct — Penalties — Defenses.
| (1) |
Attorney's NoteUnder the Utah Code, punishments for crimes depend on the classification. In the case of this section:
| Class | Prison | Fine |
|---|
| class A misdemeanor | up to 364 days | up to $2,500 |
For details, see Utah Code § 76-3-204
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Terms Used In Utah Code 76-5-412.2- Act: means a voluntary bodily movement and includes speech. See Utah Code 76-1-101.5
- Actor: means a person whose criminal responsibility is in issue in a criminal action. See Utah Code 76-1-101.5
- 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
- State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
| (a) |
As used in this section:
| (i) |
“Actor” means the same as that term is defined in Section 76-5-412. |
| (ii) |
“Indecent liberties” means the same as that term is defined in Section 76-5-401.1. |
| (iii) |
“Person in custody” means the same as that term is defined in Section 76-5-412. |
| (iv) |
“Private provider or contractor” means the same as that term is defined in Section 76-5-412. |
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| (b) |
Terms defined in Section 76-1-101.5 apply to this section. |
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| (2) |
| (a) |
An actor commits custodial sexual misconduct if:
| (i) |
the actor commits any of the acts under Subsection (2)(b) under circumstances not amounting to commission of, or an attempt to commit, an offense under Subsection 76-5-412(4); and |
| (ii) |
| (A) |
the actor knows that the individual is a person in custody; or |
| (B) |
a reasonable person in the actor’s position should have known under the circumstances that the individual was a person in custody. |
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| (b) |
Acts referred to in Subsection (2)(a) are the following acts when committed with the intent to cause substantial emotional or bodily pain to another individual or with the intent to arouse or gratify the sexual desire of any individual:
| (i) |
touching the anus, buttocks, pubic area, or any part of the genitals of a person in custody; |
| (ii) |
touching the breast of a female person in custody; or |
| (iii) |
otherwise taking indecent liberties with a person in custody. |
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| (3) |
| (a) |
A violation of Subsection (2) is a class A misdemeanor. |
| (b) |
Notwithstanding Subsection (3)(a), if the person in custody is younger than 18 years old, a violation of Subsection (2) is a third degree felony. |
| (c) |
If the act committed under Subsection (2) amounts to an offense subject to a greater penalty under another provision of state law than is provided under this Subsection (3), this Subsection (3) does not prohibit prosecution and sentencing for the more serious offense. |
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| (4) |
| (a) |
It is not a defense to the commission of, or attempt to commit, the offense described in Subsection (2) if the person in custody is younger than 18 years old, that the actor:
| (i) |
mistakenly believed the person in custody to be 18 years old or older at the time of the alleged offense; or |
| (ii) |
was unaware of the true age of the person in custody. |
|
| (b) |
Consent of the person in custody is not a defense to any violation or attempted violation of Subsection (2). |
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| (5) |
It is a defense that the commission by the actor of an act under Subsection (2) is the result of compulsion, as the defense is described in Subsection 76-2-302(1). |
Enacted by Chapter 181, 2022 General Session
