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Lewdness Involving a Child

Utah Code Section: 76-9-702.5

Elements

 

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;

(c)masturbates;

(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.

(2)

(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 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 illegal act occurred at all. There is frequent dispute as to what act occurred and whether it meets the definition set forth in the statute.  This element 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 public, then there is no mens rea (mental state required); the only issue is whether the act occurred and whether it occurred in public. 

If the act occurred in private, the mens rea shifts to 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 the privacy of a person's home.  The sanctity of our homes is fiercely guarded by the constitution, and yet, prosecutions happen for 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

 

Persons convicted of lewdness involving a child are required to register as a sex offender for a period of ten (10) years after completion of their probation. 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.

 

 

Jail/Prison time, fines & restitution

 

Lewdness involving a child is a class A misdemeanor, which carries  maximum potential jail term of 364 days and a fine of $2,500, plus a surcharge.

 

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