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Sexual Battery

Utah Code Section: 76-9-702.1

Elements

76-9-702.1.  Sexual battery. 

(1)A person is guilty of sexual battery if the person, under circumstances not amounting to an offense under Subsection (2), intentionally touches, whether or not through clothing, the anus, buttocks, or any part of the genitals of another person, or the breast of a female person, and the actor's conduct is under circumstances the actor knows or should know will likely cause affront or alarm to the person touched.

(2)Offenses referred to in Subsection (1) are:

(a)rape, Section 76-5-402;

(b)rape of a child, Section 76-5-402.1;

(c)object rape, Section 76-5-402.2;

(d)object rape of a child, Section 76-5-402.3;

(e)forcible sodomy, Subsection 76-5-403(2);

(f)sodomy on a child, Section 76-5-403.1;

(g)forcible sexual abuse, Section 76-5-404;

(h)sexual abuse of a child, Subsection 76-5-404.1(2);

(i)aggravated sexual abuse of a child, Subsection 76-5-404.1(4);

(j)aggravated sexual assault, Section 76-5-405; and

(k)an attempt to commit any offense under this Subsection (2).

(3)Sexual battery is a class A misdemeanor.

(4)For purposes of Subsection 77-41-102(17) only, a plea of guilty or nolo contendere to a charge under this section that is held in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction. This Subsection (4) also applies if the charge under this section has been subsequently reduced or dismissed in accordance with the plea in abeyance agreement.

 

 

Defending a Sexual Battery Charge

Sexual battery charges are challenging cases in that the prosecution must prove beyond a reasonable doubt the actus reus (that the act occurred) and that the defendant at a minimum should have known that the touching would cause affront or alarm to the person touched.

Initially, the question for a defense attorney is whether the prosecution can establish that the act occurred at all. 

The touching that is contemplated in the statute is broad; it captures any touching of the genitals, buttocks or breasts of females. 

The "should know" component of a sexual battery charge is prime territory for defenses.  For example, should a person have known that they would cause affront or alarm to someone by their touching?  What if the touching was inadvertent?  What if they legitimately thought they had consent based on a totality of circumstances?

All of the foregoing are questions for a jury, and are not determined as a matter of law.  A skilled defense attorney can paint an effective picture eviscerating a claim that he/she should have known better.  

Sex Offender Registration

 

A defendant does not have to register as a sex offender for a first conviction of sex battery in Utah.  However, if a defendant collects 4 convictions for sex battery, 4 convictions of lewdness, or a mix of 4 total sexual battery and lewdness convictions, he/she will be required to register for a period of ten years, per UCA  77-41-102 and 77-41-105.  

For purposes of Subsection 77-41-102(17) only, a plea of guilty or nolo contendere to a charge under this section that is held in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction. This also applies if the charge under this section has been subsequently reduced or dismissed in accordance with the plea in abeyance agreement.

Jail/Prison time, fines & restitution

Sexual battery is a class A misdemeanor, punishable by up to a year in jail and a fine of $2,500.

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