Lewdness Involving a Child
Utah Code Section: 76-9-702.5
76-9-702.5. Lewdness involving a child.
(1)A person is guilty of lewdness involving a child if the person under circumstances not amounting to rape of a child, object rape of a child, sodomy upon a child, sexual abuse of a child, aggravated sexual abuse of a child, or an attempt to commit any of those offenses, intentionally or knowingly does any of the following to, or in the presence of, a child who is under 14 years of age:
(a)performs an act of sexual intercourse or sodomy;
(b)exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area:
(i)in a public place; or
(ii)in a private place:
(A)under circumstances the person should know will likely cause affront or alarm; or
(B)with the intent to arouse or gratify the sexual desire of the actor or the child;
(d)under circumstances not amounting to sexual exploitation of a child under Section 76-5b-201, causes a child under the age of 14 years to expose his or her genitals, anus, or breast, if female, to the actor, with the intent to arouse or gratify the sexual desire of the actor or the child; or
(e)performs any other act of lewdness.
(a)Lewdness involving a child is a class A misdemeanor, except under Subsection (2)(b).
(b)Lewdness involving a child is a third degree felony if at the time of the violation:
(i)the person is a sex offender as defined in Section 77-27-21.7; or
(ii)the person has previously been convicted of a violation of this section.
Defending a Lewdness Involving a Child Charge
Lewdness Involving a Child are challenging cases in that the prosecution must prove beyond a reasonable doubt the actus reus (that the act occurred) and a curious mens rea (the mental state the defendant had in committing the act, if not committed in public.
Initially, the question for a defense attorney is whether the prosecution can establish that the claimed act occurred at all. There is frequent considerable dispute as to what act was performed and whether it meets the definition. This is of particular debate when the prosecution relies on subparagraph "(e) performs any other act of lewdness". Defense attorneys have challenged this catch-all paragraph and the Utah appellate courts have clarified that the defendant's conduct must be “similar in kind”—involving an element of lasciviousness—to acts enumerated in the statute. That does not mean that catchall “lewdness” must be “as seriously offensive as” the listed acts; but the charged conduct must be “similar in kind, class, character, or nature as the others.” State v. Bagnes, 2014 UT 4, ¶ 19, 322 P.3d 719, 724.
Second, there must be an analysis of whether the act occurred in public or in private. If the act occurred in private, then there is an additional question of whether the person committed the act under circumstances in which the person should know would likely cause affront or alarm, or with the intent to gratify the sexual desire of the child. There is intense debate over acts that occur in a person's home that people might be able to see if they are looking into the person's home, such as sunbathing in the backyard or walking around a home naked after a shower. A skilled defense attorney analyzes how much effort was required to see the defendant and whether the tables can be turned on someone spying on, or peeping on the defendant.
The next issue to address is whether the target of the act was someone under the age of 14 or if the act was committed in the presence of a child under the age of 14. Case law defines "in the presence" as only requiring that a child be in the same place as a person committing a lewd act. Salt Lake City v. Howe, 2016 UT App 219, ¶ 15, 387 P.3d 562, 567
Sex Offender Registration
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Jail/Prison time, fines & restitution
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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;
(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).