Unlawful Sexual Conduct With a 16 or 17 yo
Utah Code Section: 76-5-401.2
Elements
76-5-401.2. Unlawful sexual conduct with a 16- or 17-year-old.
(1)As used in this section, "minor" means an individual who is 16 years of age or older, but younger than 18 years of age, at the time the sexual conduct described in Subsection (2) occurred.
(2)(a)An individual commits unlawful sexual conduct with a minor if, under circumstances not amounting to an offense listed under Subsection (3), an individual who is:
(i)seven or more years older but less than 10 years older than the minor at the time of the sexual conduct engages in any conduct listed in Subsection (2)(b), and the individual knew or reasonably should have known the age of the minor; or
(ii)10 or more years older than the minor at the time of the sexual conduct and engages in any conduct listed in Subsection (2)(b).
(b)As used in Subsection (2)(a), "sexual conduct" refers to when the individual:
(i)has sexual intercourse with the minor;
(ii)engages in any sexual act with the minor involving the genitals of one individual and the mouth or anus of another individual, regardless of the sex of either participant;
(iii)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 individual or with the intent to arouse or gratify the sexual desire of any individual, regardless of the sex of any participant; or
(iv)touches the anus, buttocks, pubic area, or any part of the genitals of the minor, or touches the breast of a female minor, or otherwise takes indecent liberties with the minor, with the intent to cause substantial emotional or bodily pain to any individual or with the intent to arouse or gratify the sexual desire of any individual regardless of the sex of any participant.
Jail/Prison time, fines & restitution
If a defendant is 10 years or more than the alleged victim, the Defendant is guilty of a 3rd degree felony. A third degree felony is punishable by a prison term of 0-5 years in the Utah State Prison and a fine of $5,000.
If a defendant is 7 years or older than the alleged victim but less than 10 years older, then the Defendant is guilty of a class A misdemeanor. A class A misdemeanor is punishable by 365 days in the county jail and a fine of $2,500.
Defenses
Consent is not a defense to Unlawful Sexual With a 16 or 17 Year Old. It is the age of the alleged victim that forms the basis for the charge. If it is alleged that consent was not given, then the prosecution will bring different, more serious charges.
As such, generally the defense is that the prohibited contact did not occur. Such a defense requires a jury to make a credibility determination between an alleged victim and a defendant. Prevailing in such a credibility determination is no small task, unless it can be established that an alleged victim had some motive or bias in claiming that illegal contact occurred when in fact it did not. A credibility defense requires a highly skilled and experienced defense attorney.
If a defendant is 7 years or older than the alleged victim, but less than 10 years older, then the prosecutor must prove that the Defendant knew or reasonably should have known the age of the alleged victim. If the prosecution cannot meet this burden, then the Defendant is not guilty.
Mistake of Age is No Defense
UCA 76-2-304.5
(2) It is not a defense to the crime of unlawful sexual activity with a minor, a violation of Section 76-5-401; or an attempt to commit either of the offense,
(4) It is not a defense to the crime of unlawful sexual activity with a minor, a violation of Subsection 76-5-401.2(2)(a)(ii), that the actor mistakenly believed the victim to be 18 years of age or older at the time of the alleged offense or was unaware of the victim's true age.
EXCEPTION: if a defendant is 7 years or older than the alleged victim, but less than 10 years older, then the prosecutor must prove that the Defendant knew or reasonably should have known the age of the alleged victim. If the prosecution cannot meet this burden, then the Defendant is not guilty.
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 conduct with a 16 or 17 year old), 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.
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:
(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;
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).