Consent is not a defense to having sexual relations with a minor child aged 16-17 years-old if you are at least 7 years or older than them.
Sexual relations with a 16- or 17-year-old is defined in to be:
(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.
In Utah, when a person at least 7 years older has a physical relationship with a 16- or 17-year old, they will be charged with a 3rd Degree Felony or Class A Misdemeanor. This is different from an 18-year old having sexual relations with a 16-year old.
Class A Misdemeanor: Unlawful sexual conduct with a 16- or 17- year old is a Class A Misdemeanor when you are more than 7 years older, but less than 10 years older than the minor child. This means that if the minor child was 16 years old, the youngest the defendant can be is 23, but no older than 26.
Penalties. Going to jail on a first time Misdemeanor offense can be done, but doesn’t happen often. Sexual offenses are one Misdemeanor where you may end up in the county jail as a first-time offender. Having a skilled courtroom advocate who can explain mitigating factors, such as age, or intent, matters greatly.
Class A Misdemeanors carry up to one year in the county jail. Prison time is not possible. You will be fined and likely required to complete a social-sexual psychological evaluation for sentencing purposes. Along with following through with any treatment recommended. You can receive up to a $2,500 fine.
3rd Degree Felony. Unlawful Sexual Conduct with a 16- or 17-year old is a 3rd Degree Felony when you are 10 or more years older than the minor child.
Penalties. 3rd Degree sex offense convictions can carry 0-5 years in the Utah State Prison. Once committed to prison, your sentencing judge has little control when you get out. Your parole date is controlled by the Utah Board of Pardons and Parole and they control if early release is appropriate for society. You can go to prison, jail, or be released on Adult Probation & Parole supervised probation. The same sex offender treatment and evaluation will be conducted. You may receive up to a $5,000 fine.
Unlawful Sexual Conduct Restitution. Since the crime of Unlawful Sexual Conduct with a 16- or 17-year old can be a consensual crime, criminal restitution should not be an issue, but it can. Any counseling the victim child incurred you can be ordered by the court to pay. Criminal restitution is not dischargeable with bankruptcy.
Sex Offense Crimes Expungements—NO. As of 09/2020, no registrable sex offense can be expunged under Utah law. See Utah Code Ann. 77-40-102(2) (2020).
Defenses to Unlawful Sexual Conduct with a 16- or 17-year old.
“The individual knew or reasonably should have known the age of the minor” is often used as a defense. The Class A Misdemeanor version of Unlawful Sexual Conduct with a 16 or 17-year old has this defense available. This “knew or should have known” the minor’s age is intentionally omitted from the 3rd Degree Felony version of the statute.
This means all sorts of evidence can be put forth before the jury, along with being used in negotiations with the prosecuting attorney for a non-registrable sex offense plea bargain.
The details and requirements of who and when you have to register as a sex offender can and does change. As of 09/2020, Unlawful Sexual Conduct with a 16- or 17-year old is a 10-year, non-lifetime registry.
Unlawful Sexual Conduct with a 16-or 17-year old is an enhanceable sex offense. Meaning, your current conviction will be used against you in the future if you are charged with any new Utah sex crimes. Having a prior sex offense conviction is a serious aggravating factor.
Effective 5/8/2018
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.
(3) The offenses referred to in Subsection (2) are:
(a)
(i) rape, in violation of Section 76-5-402;
(ii) object rape, in violation of Section 76-5-402.2;
(iii) forcible sodomy, in violation of Section 76-5-403;
(iv) forcible sexual abuse, in violation of Section 76-5-404; or
(v) aggravated sexual assault, in violation of Section 76-5-405; or
(b) an attempt to commit any offense under Subsection (3)(a).
(4) A violation of Subsection (2)(b)(i), (ii), or (iii) is a third degree felony.
(5) A violation of Subsection (2)(b)(iv) is a class A misdemeanor.
Amended by Chapter 192, 2018 General Session
Amended by Chapter 394, 2018 General Session
