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Forcible Sexual Abuse

Utah Code Section: 76-5-404

Elements

A person commits forcible sexual abuse if the victim is 14 years of age or older and, under circumstances not amounting to rape, object rape, sodomy, or attempted rape or sodomy, the actor:

(1) touches the anus, buttocks, or any part of the genitals of another, or

(2) touches the breast of a female, or

(3) otherwise takes indecent liberties with another, or

(4) causes another to take indecent liberties with the actor or another,

(5) with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person, without the consent of the other, regardless of the sex of any participant.

 

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.

Defending a Forcible Sexual Abuse Case

Defending forcible sexual abuse is unique in that the state needs to prove not only the actus reus (that the act occurred), but also a mens rea (the defendant's state of mind) of specific intent.

The first potential defense is a denial that the act ever occurred.  Since most sex crimes occur outside the presence of anyone other than the alleged defendant and victim, credibility is almost everything in this defense, assuming the defendant did not make pretrial statements.  If incriminating statements were made, then the attorney needs to investigate the possibility of suppressing the statements on the basis that they were illegally obtained or otherwise unreliable for various reasons.  The credibility of the victim, both in their general reputation for truthfulness and also their ability to accurately remember and perceive events, must be scrupulously examined and investigated by the defense attorney. 

The second defense is somewhat unique to forcible sexual abuse, in that the state has to prove that it was the defendant's specific intent to cause substantial emotional or bodily pain or with the intent to arouse or gratify the sexual desire of any person.  

In many cases, the intent can be inferred through words or sexual stimulation (most commonly established via claims of erections in men).

However, claims of forcible sexual assault frequently take place after an evening of partying, specifically excessive use of alcohol, drugs, or a combination of the two.

Sex Offender Registration

Utah Code Section 77-41-102(17)(xii) identifies forcible sexual abuse as a registerable sex offense.  77-41-105(3)(a) requires a person convicted of forcible sexual abuse to register with the Utah Sex Offender Registry for the duration of their sentence (including probation), plus 10 years.   

Jail/Prison time, fines & restitution

 

Forcible sexual abuse is:

 

(a)except as provided below, a felony of the second degree, punishable by a term of imprisonment of not less than one year nor more than 15 years; or

(b)except as provided below, a felony of the first degree, punishable by a term of imprisonment for 15 years and which may be for life, if the trier of fact finds that during the course of the commission of the forcible sexual abuse the defendant caused serious bodily injury to another.

If, when imposing a sentence as a first degree felony, a court finds that a lesser term than the term described above for the first degree felony is in the interests of justice, the court may impose a term of imprisonment of not less than:

(a)10 years and which may be for life; or

(b)six years and which may be for life.

 

Imprisonment for a first degree conviction is mandatory in accordance with Section 76-3-406.