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Forcible Sodomy

Utah Code Section: 76-5-403

Elements

 

76-5-403.  Sodomy -- Forcible sodomy. 

(1)A person commits sodomy when the actor engages in any sexual act with a person who is 14 years of age or older involving the genitals of one person and mouth or anus of another person, regardless of the sex of either participant.

(2)A person commits forcible sodomy when the actor commits sodomy upon another without the other's consent.

 

 

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.

Jail/Prison time, fines & restitution

 

Conviction for Forcible Sodomy is a first degree felony and carries a potential prison term of:

(1) 5 years to life;

(2) 15 years to life if the trier of fact finds:

     (a) that during the course of commission of

the forcible sodomy the defendant caused serious bodily injury to another or;

     (b) at the time of the commission of the forcible sodomy, the defendant was younger than 18 years of age and was previously convicted of a grievous sexual offense.

      The court may make findings on the record and impose prison of 6 years to life or 10 years to life under this paragraph (2), if the court finds it in the interests of justice.

(3) life without parole, if the trier of fact finds that at the time of the commission of the forcible sodomy the defendant was previously convicted of a grievous sexual offense.   

Imprisonment under this section is mandatory.

 

Sex Offender Registration

 

Persons convicted of forcible sodomy 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.

Defending a Forcible Sodomy charge

 

Defending a forcible sodomy case is simultaneously strategically easy and tactically incredibly difficult.  

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

Defending a forcible sodomy case is tactically difficult in that in the absence of an admission from the defendant that the sodomy 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 defend a forcible sodomy case.

In the alternative, if the sodomy 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 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 a forcible sodomy 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.