Unlawful Sexual Activity With a Minor
Utah Code Section: 76-5-401
Elements
1. For purposes of Unlawful Sexual Activity with a Minor, a "minor" is a person who is 14 years of age or older, but younger than 16 years of age, at the time the sexual activity described in this section occurred.
2. A person commits unlawful sexual activity with a minor if, under circumstances not amounting to rape, object rape, forcible sodomy, or aggravated sexual assault, the actor:
(a)has sexual intercourse with the minor;
(b)engages in any sexual act with the minor involving the genitals of one person and the mouth or anus of another person, regardless of the sex of either participant; or
(c)causes the penetration, however slight, of the genital or anal opening of the minor by any foreign object, substance, instrument, or device, including a part of the human body, with the 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, regardless of the sex of any participant.
Sex Offender Registration
77-41-105. Registration of offenders -- Offender responsibilities.
An offender who is convicted of an offense listed in Subsection 77-41-102(9)(a) or (17)(a), (which includes unlawful sexual activity with a minor), shall:
(i)register for the time period, and in the frequency, required by the jurisdiction where the offender was convicted if that jurisdiction's registration period or registration frequency requirement for the offense that the offender was convicted of is greater than the 10 years from completion of the sentence registration period that is required under Subsection (3)(a), or is more frequent than every six months; or
(ii)register in accordance with the requirements of Subsection (3)(a), if the jurisdiction's registration period or frequency requirement for the offense that the offender was convicted of is less than the registration period required under Subsection (3)(a), or is less frequent than every six months.
Exception: (b)If the defendant establishes by a preponderance of the evidence the mitigating factor that the defendant is less than four years older than the minor at the time the sexual activity occurred, the offense is a class B misdemeanor and is not subject to registration under Subsection 77-41-102(17)(a)(iii).
Defenses
Consent is presumed in the statute; it is the age of the alleged victim that makes the act criminal, not the issue of consent. If consent was not given, the defendant would be charged with a more serious crime.
The next defense is that the alleged conduct did not occur, which requires a fact finder to believe a defendant's version of events more than the alleged victim's. This is no small task since the defendant has the greatest stake in the outcome of the case, which the jury can take into consideration when weighing credibility. A he said/she said credibility defense requires a highly skilled attorney to identify and exploit all inconsistencies and evidence of bias or motive by the alleged victim to lie or exaggerate.
Mistake of Age is No Defense
76-2-304.5
(2) It is not a defense to the crime of unlawful sexual activity with a minor, that the actor mistakenly believed the victim to be 16 years of age or older at the time of the alleged offense or was unaware of the victim's true age.
Jail/Prison time, fines & restitution
(a)Except under Subsection (3)(b), a violation of Subsection (2) is a third degree felony.
(b)If the defendant establishes by a preponderance of the evidence the mitigating factor that the defendant is less than four years older than the minor at the time the sexual activity occurred, the offense is a class B misdemeanor. An offense under this Subsection (3)(b) is not subject to registration under Subsection 77-41-102(17)(a)(iii).
Removal from Sex Offender Registry in 5 Years
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:
(3) Unlawful sexual activity with a minor and, at the time of the offense, was not more than 10 years older than the victim;
Requirements:
(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).