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Aggravated Sexual Assault

Utah Code Section: 76-5-405

Elements

 

76-5-405.  Aggravated sexual assault

(1)A person commits aggravated sexual assault if:(a)in the course of a rape, object rape, forcible sodomy, or forcible sexual abuse, the actor:

(i)uses, or threatens the victim with the use of, a dangerous weapon as defined in Section 76-1-601;

(ii)compels, or attempts to compel, the victim to submit to rape, object rape, forcible sodomy, or forcible sexual abuse, by threat of kidnaping, death, or serious bodily injury to be inflicted imminently on any person; or

(iii)is aided or abetted by one or more persons;

(b)in the course of an attempted rape, attempted object rape, or attempted forcible sodomy, the actor:

(i)causes serious bodily injury to any person;

(ii)uses, or threatens the victim with the use of, a dangerous weapon as defined in Section 76-1-601;

(iii)attempts to compel the victim to submit to rape, object rape, or forcible sodomy, by threat of kidnaping, death, or serious bodily injury to be inflicted imminently on any person; or

(iv)is aided or abetted by one or more persons; or

(c)in the course of an attempted forcible sexual abuse, the actor:

(i)causes serious bodily injury to any person;

(ii)uses, or threatens the victim with the use of, a dangerous weapon as defined in Section 76-1-601;

(iii)attempts to compel the victim to submit to forcible sexual abuse, by threat of kidnaping, death, or serious bodily injury to be inflicted imminently on any person; or

(iv)is aided or abetted by one or more persons.

 

 

Jail/Prison time, fines & restitution

 

Aggravated sexual assault is a first degree felony punishable by a term of imprisonment of:

If the defendant is convicted under subsection 1(a), it is is punishable by: 

(a) Not less than 15 years and which may be for life; or

(b)life without parole, if the trier of fact finds that: at the time of the commission of the rape of a child the defendant was previously convicted of a grievous sexual offense.

If the defendant is convicted under subsection 1(b), it is punishable by:

(a) Not less than 10 years and which may be for life; or

(b)life without parole, if the trier of fact finds that: at the time of the commission of the rape of a child the defendant was previously convicted of a grievous sexual offense.

f the defendant is convicted under subsection 1(c), it is punishable by:

(a) Not less than 6 years and which may be for life;

(b) (b)life without parole, if the trier of fact finds that: at the time of the commission of the rape of a child the defendant was previously convicted of a grievous sexual offense.

 

 

Defending an Aggravated Sexual Assault charge

Defending an aggravated sexual assault charge is simultaneously strategically easy and tactically incredibly difficult.  

It is strategically easy in that the defense is either: (1) the alleged act either occurred or it did not or (2) if the alleged act occurred, then consent was given.  

Defending an aggravated sexual assault charge is tactically difficult in that in the absence of an admission that the intercourse occurred, forensic evidence must be scrupulously reviewed and effectively cross examined.  

The defense attorney must have a solid background in DNA evidence and forensic sexual assault examinations, known as a SANE. Without adequate knowledge and experience in the forensic science behind the case, an attorney cannot effectively cross examine a state's expert in an aggravated sexual assault case.

In the alternative, if the alleged act is admitted, then the remaining issue is that of consent. Determination of consent rests on the jury weighing credibility of the alleged victim and the defendant, since typically the only persons present during the alleged assault are the alleged victim and the defendant. As such, it is vital to explore the alleged victim's background and investigate their reputation for truthfulness or lack thereof among their family and friends.

 

Effectively attacking the credibility of alleged victim is the single most important goal in defending am aggravated sexual assault case. This is especially true in light that the jury is instructed that in considering the credibility of a witness, they may consider what the witness has to lose in the case.  Since the defendant always has the most to lose in a case, the defendant is automatically accorded a lower level of credibility. 

 

Sex Offender Registration

Persons convicted of aggravated sexual assault are required to register as a sex offender for the rest of their lives. There is no possibility of removal from the register, and if the person moves states, the person is required to register in their new state.

 

UCA 77-41-106.

 

 

Determining Consent

 

76-5-406.  Sexual offenses against the victim without consent of victim -- Circumstances. 
     An act of sexual intercourse, rape, attempted rape, rape of a child, attempted rape of a child, object rape, attempted object rape, object rape of a child, attempted object rape of a child, sodomy, attempted sodomy, forcible sodomy, attempted forcible sodomy, sodomy on a child, attempted sodomy on a child, forcible sexual abuse, attempted forcible sexual abuse, sexual abuse of a child, attempted sexual abuse of a child, aggravated sexual abuse of a child, attempted aggravated sexual abuse of a child, or simple sexual abuse is without consent of the victim under any of the following circumstances:

(1)the victim expresses lack of consent through words or conduct;

(2)the actor overcomes the victim through the actual application of physical force or violence;

(3)the actor is able to overcome the victim through concealment or by the element of surprise;

(4)(a)

(i)the actor coerces the victim to submit by threatening to retaliate in the immediate future against the victim or any other person, and the victim perceives at the time that the actor has the ability to execute this threat; or

(ii)the actor coerces the victim to submit by threatening to retaliate in the future against the victim or any other person, and the victim believes at the time that the actor has the ability to execute this threat;

(b)as used in this Subsection (4), "to retaliate" includes threats of physical force, kidnapping, or extortion;

(5)the actor knows the victim is unconscious, unaware that the act is occurring, or physically unable to resist;

(6)the actor knows or reasonably should know that the victim has a mental disease or defect, which renders the victim unable to:

(a)appraise the nature of the act;

(b)resist the act;

(c)understand the possible consequences to the victim's health or safety; or

(d)appraise the nature of the relationship between the actor and the victim.

(7)the actor knows that the victim submits or participates because the victim erroneously believes that the actor is the victim's spouse;

(8)the actor intentionally impaired the power of the victim to appraise or control his or her conduct by administering any substance without the victim's knowledge;

(9)the victim is younger than 14 years of age;

(10)the victim is younger than 18 years of age and at the time of the offense the actor was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust in relation to the victim as defined in Section 76-5-404.1;

(11)the victim is 14 years of age or older, but younger than 18 years of age, and the actor is more than three years older than the victim and entices or coerces the victim to submit or participate, under circumstances not amounting to the force or threat required under Subsection (2)or (4); or

(12)the actor is a health professional or religious counselor, as those terms are defined in this Subsection (12), the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been manifested; for purposes of this Subsection (12):

(a)"health professional" means an individual who is licensed or who holds himself or herself out to be licensed, or who otherwise provides professional physical or mental health services, diagnosis, treatment, or counseling including, but not limited to, a physician, osteopathic physician, nurse, dentist, physical therapist, chiropractor, mental health therapist, social service worker, clinical social worker, certified social worker, marriage and family therapist, professional counselor, psychiatrist, psychologist, psychiatric mental health nurse specialist, or substance abuse counselor; and

(b)"religious counselor" means a minister, priest, rabbi, bishop, or other recognized member of the clergy.

 
Removal from Sex Offender Registry in 5 Years

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There is a possibility of removal from the sex offender registry within 5 years of the termination of the sentence (the end of probation) under the following conditions:

 

The offender was convicted of:

(1) Kidnapping, and the conviction is the only conviction for which the offender is required to register;

(2) Unlawful Detention, and the conviction is the only conviction for which the offender is required to register;

(3) Unlawful sexual activity with a minor and, at the time of the offense, was not more than 10 years older than the victim; or

(4) Unlawful sexual conduct with a 16 or 17 year old, and at the time of the offense, was not more than 15 years older than the victim;

 

Requirements:

(b)five years have passed since the completion of the offender's sentence;

(c)the offender has successfully completed all treatment ordered by the court;

(i)the offender has not been convicted of any other crime, excluding traffic offenses, as evidenced by a certificate of eligibility issued by the bureau;

(ii) "Traffic offense" does not include a violation of Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;

(e)the offender has paid all restitution ordered by the court;

(f)the offender has complied with all the registration requirements at all times as required in this chapter, as evidenced by a document obtained by the offender from the Utah Department of Corrections, which confirms compliance; and

(g)the office that prosecuted the offender, and the victim, or if the victim is still a minor, the victim's parent, are notified and provided with an opportunity to respond in accordance with Subsection (3)(a).