GENERAL RULE: Even if consensual, if you are a prison guard, security guard, police officer, you can’t have sexual relations with inmates, prisoners or people under your arrest.
In Utah, you can’t have consensual sexual relations with an inmate if you are a sworn and certified peace officer or security contractor. If your job is to watch or provide security as a private contractor at a jail or private jail, you can’t have sexual relations with an inmate.
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Employee Defined for Purposes of Custodial Relations Criminal Charges:
The employee of the jail, facility or organization who have custody of the inmates is defined as any
(1) correctional officer, as defined in Section 53-13-104 (2020)
(2) special function officer, as defined in Section 53-13-105 (2020)
(3) law enforcement officer, as defined in Section 53-13-103 (2020), or
(4) employee of, or private provider or contractor for, the Department of Corrections or a county jail.
Inmate Defined:
The Inmate or Person in Custody is either over 18 years old or younger and is:
(1) a prisoner or county jail inmate, as defined under Utah law, or an inmate or prisoner who is being housed at the Utah State Hospital or other medical facility, or
(2) under correctional supervision, such as at a work release facility or as a parolee or probationer; or
(3) under lawful or unlawful arrest, either with or without a warrant.
Sexual Relations Defined:
For custodial sexual misconduct, consensual sexual relations are defined as
(1) having sexual intercourse with a person in custody;
(2) engaging in any sexual act with a person in custody involving the genitals of one individual and the mouth or anus of another individual, regardless of the sex of either participant; or
(c) causing the penetration, however slight, of the genital or anal opening of a person in custody 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, regardless of the sex of any participant.
FORCE OR LACK OF CONSENT: If force or a lack of consent exists when custodial sexual relations occur, you can always be charged with the following sex crimes.
(1) Section 76-5-401 (2020), unlawful sexual activity with a minor;
(2) Section 76-5-402 (2020) , rape;
(3) Section 76-5-402.1 (2020), rape of a child;
(4) Section 76-5-402.2 (2020), object rape;
(5) Section 76-5-402.3 (2020), object rape of a child;
(6) Section 76-5-403 (2020), forcible sodomy;
(7) Section 76-5-403.1 (2020), sodomy on a child;
(8) Section 76-5-404 (2020), forcible sexual abuse;
(9) Section 76-5-404.1 (2020), sexual abuse of a child or aggravated sexual abuse of a child; or
(10) Section 76-5-405 (2020), aggravated sexual assault.
Sodomy and Sexual Intercourse. 2nd Degree Felony: Person Under 18 Years Old.
If the actor commits custodial sexual misconduct with an inmate that is under 18 years old, it is a 2nd Degree Felony.
Sodomy and Sexual Intercourse. 3rd Degree Felony: Person Over 18 Years Old.
If the actor commits custodial sexual misconduct with an inmate over 18 years old, it is a 3rd Degree Felony.
Touching: Class A Misdemeanor Inmate over 18 Years Old.
It is a Class A Misdemeanor to touch an inmate who is over 18 years old that does amount to sexual intercourse or sodomy.
Touching: 3rd Degree Felony Person Inmate under 18 Years Old.
It is a 3rd Degree Felony to touch an inmate who is under 18 years old that does amount to sexual intercourse or sodomy.
MISTAKE OF AGE IS NOT A DEFENSE. Mistake of age is not a defense to custodial sexual misconduct. Compulsion is a defense.
76-5-412. Custodial sexual relations — Custodial sexual misconduct — Definitions — Penalties — Defenses.
(1) As used in this section:
(a) “Actor” means:
(i) a correctional officer, as defined in Section 53-13-104;
(ii) a special function officer, as defined in Section 53-13-105;
(iii) a law enforcement officer, as defined in Section 53-13-103; or
(iv) an employee of, or private provider or contractor for, the Department of Corrections or a county jail.
(b) “Person in custody” means an individual, either an adult 18 years of age or older, or a minor younger than 18 years of age, who is:
(i) a prisoner, as defined in Section 76-5-101, and includes a prisoner who is in the custody of the Department of Corrections created under Section 64-13-2, but who is being housed at the Utah State Hospital established under Section 62A-15-601 or other medical facility;
(ii) under correctional supervision, such as at a work release facility or as a parolee or probationer; or
(iii) under lawful or unlawful arrest, either with or without a warrant.
(c) “Private provider or contractor” means any person or entity that contracts with the Department of Corrections or with a county jail to provide services or functions that are part of the operation of the Department of Corrections or a county jail under state or local law.
(2)
(a) An actor commits custodial sexual relations if the actor commits any of the acts under Subsection (3):
(i) under circumstances not amounting to commission of, or an attempt to commit, an offense under Subsection (6); and
(ii)
(A) the actor knows that the individual is a person in custody; or
(B) a reasonable person in the actor’s position should have known under the circumstances that the individual was a person in custody.
(b) A violation of Subsection (2)(a) is a third degree felony, but if the person in custody is younger than 18 years of age, a violation of Subsection (2)(a) is a second degree felony.
(c) If the act committed under this Subsection (2) amounts to an offense subject to a greater penalty under another provision of state law than is provided under this Subsection (2), this Subsection (2) does not prohibit prosecution and sentencing for the more serious offense.
(3) Acts referred to in Subsection (2)(a) are:
(a) having sexual intercourse with a person in custody;
(b) engaging in any sexual act with a person in custody involving the genitals of one individual and the mouth or anus of another individual, regardless of the sex of either participant; or
(c) causing the penetration, however slight, of the genital or anal opening of a person in custody 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, regardless of the sex of any participant.
(4)
(a) An actor commits custodial sexual misconduct if the actor commits any of the acts under Subsection (5):
(i) under circumstances not amounting to commission of, or an attempt to commit, an offense under Subsection (6); and
(ii)
(A) the actor knows that the individual is a person in custody; or
(B) a reasonable person in the actor’s position should have known under the circumstances that the individual was a person in custody.
(b) A violation of Subsection (4)(a) is a class A misdemeanor, but if the person in custody is younger than 18 years of age, a violation of Subsection (4)(a) is a third degree felony.
(c) If the act committed under this Subsection (4) amounts to an offense subject to a greater penalty under another provision of state law than is provided under this Subsection (4), this Subsection (4) does not prohibit prosecution and sentencing for the more serious offense.
(5) Acts referred to in Subsection (4)(a) are the following acts when committed 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:
(a) touching the anus, buttocks, pubic area, or any part of the genitals of a person in custody;
(b) touching the breast of a female person in custody; or
(c) otherwise taking indecent liberties with a person in custody.
(6) The offenses referred to in Subsections (2)(a)(i) and (4)(a)(i) are:
(a) Section 76-5-401, unlawful sexual activity with a minor;
(b) Section 76-5-402, rape;
(c) Section 76-5-402.1, rape of a child;
(d) Section 76-5-402.2, object rape;
(e) Section 76-5-402.3, object rape of a child;
(f) Section 76-5-403, forcible sodomy;
(g) Section 76-5-403.1, sodomy on a child;
(h) Section 76-5-404, forcible sexual abuse;
(i) Section 76-5-404.1, sexual abuse of a child or aggravated sexual abuse of a child; or
(j) Section 76-5-405, aggravated sexual assault.
(7)
(a) It is not a defense to the commission of the offense of custodial sexual relations under Subsection (2) or custodial sexual misconduct under Subsection (4), or an attempt to commit either of these offenses, if the person in custody is younger than 18 years of age, that the actor:
(i) mistakenly believed the person in custody to be 18 years of age or older at the time of the alleged offense; or
(ii) was unaware of the true age of the person in custody.
(b) Consent of the person in custody is not a defense to any violation or attempted violation of Subsection (2) or (4).
(8) It is a defense that the commission by the actor of an act under Subsection (2) or (4) is the result of compulsion, as the defense is described in Subsection 76-2-302(1).
Amended by Chapter 192, 2018 General Session
