Consent Laws
Utah

Under Utah law, sexual offenses “without consent” of the victim arise when:

• (a) the victim expresses lack of consent through words or conduct;
• (b) the actor overcomes the victim through the actual application of physical force or violence;
• (c) the actor is able to overcome the victim through concealment or by the element of surprise;
• (d)
• (i) the actor coerces the victim to submit by threatening to retaliate in the immediate future against the victim or any other person, and the victim perceives at the time that the actor has the ability to execute this threat; or
• (ii) the actor coerces the victim to submit by threatening to retaliate in the future against the victim or any other person, and the victim believes at the time that the actor has the ability to execute this threat;
• (“to retaliate” includes threats of physical force, kidnapping, or extortion)
• (e) the actor knows the victim is unconscious, unaware that the act is occurring, or is physically unable to resist;
• (f) the actor knows or reasonably should know that the victim has a mental disease or defect, which renders the victim unable to appraise the nature of the act, resist the act, understand the possible consequences to the victim’s health or safety, or appraise the nature of the relationship between the actor and the victim;
• (g) the actor knows that the victim participates because the victim erroneously believes that the actor is someone else;
• (h) the actor intentionally impaired the power of the victim to appraise or control his or her conduct by administering any substance without the victim's knowledge;
• (i) the victim is younger than 14 years of age;
• (j) the victim is younger than 18 years of age and at the time of the offense the actor was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust in relation to the victim;
• (k) the victim is 14 years of age or older, but younger than 18 years of age, and the actor is more than three years older than the victim and entices or coerces the victim to submit or participate, under circumstances not amounting to the force or threat required under Subsection (b) or (d) above; or
• (l) the actor is a health professional or religious counselor, the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been manifested.
• Consent to any sexual act or prior consensual activity between or with any party does not necessarily constitute consent to any other sexual act. Consent may be initially given but may be withdrawn through words or conduct at any time prior to or during sexual activity. Utah Code Ann. §76-5-406(2)-(3).

No. “[T]he essence of consent is that it is given out of free will, and determining whether someone has truly consented requires close attention to a wide range of contextual elements, including verbal and nonverbal cues.” State v. Reigelsperger, 400 P.3d 1127, 1145 (Utah App. 2017). 

18 years old. Utah Code Ann. §76-5-406.

Yes, a sexual offense is considered to occur without consent of the victim if:

• the victim is younger than 14 years old; or
• the victim is 14 years of age or older, but younger than 18 years of age, and the actor is more than three years older than the victim and entices or coerces the victim to submit or participate.

Utah Code Ann. §§76-5-406(2)(i) and (k).

An actor commits the offense of unlawful sexual conduct with a minor (“minor” is defined as someone who is 16 years old or older but younger than 18 years old) if under circumstances not amounting to rape, object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault or an attempt to commit the foregoing, the actor:

• (1)(a) is 7 or more years older but less than 10 years older than the minor at the time of the sexual conduct, (b) engages in any of the specified sexual conduct with the minor; and (c) knew or reasonably should have known the age of the minor; or
• (2)(a) is 10 or more years older than the minor at the time of the sexual conduct and engages in any of the specified sexual conduct with the minor. Utah Code Ann. §76-5-401.2.

Sexual activity between individuals 12 years or older but younger than 18 years old (when the actor is not the biological sibling of the adolescent and both the actor and the adolescent agree to the sexual activity) but not amounting to rape, object rape, forcible sodomy, aggravated sexual assault, incest or an attempt to commit any of the foregoing is unlawful. It is punished as:

• third degree felony if a 17 year old engages in unlawful adolescent sexual activity with an adolescent who is 13;
• third degree felony for a 16 year old to engage in unlawful sexual activity with an adolescent who is 12;
• class A misdemeanor for a 16 year old to engage in unlawful sexual activity with an adolescent who is 13;
• class A misdemeanor for an actor who is 14 or 15 to engage in unlawful adolescent sexual activity with an adolescent who is 12;
• class B misdemeanor for an actor who is 17 years old to engage in unlawful adolescent sexual activity with an adolescent who is 14;
• class B misdemeanor for an actor who is 15 years old to engage in unlawful adolescent sexual activity with an adolescent who is 13;
• class C misdemeanor for an actor who is 12 or 13 years old to engage in unlawful adolescent sexual activity with an adolescent who is 12 or 13;
• class C misdemeanor for an actor who is 14 years old to engage in unlawful adolescent sexual activity with an adolescent who is 13.

An actor commits unlawful sexual activity with an adolescent who is 13 and the actor is 18 and enrolled in high school at the time the activity occurred and the actor is not the biological sibling of the adolescent and the actor and the adolescent mutually agree to the activity.  It is punished as a third degree felony.

The actor and the adolescent do not mutually agree to the sexual activity under Subsection (2) if:

(a) the adolescent expresses lack of agreement to the sexual activity through words or conduct;

(b) the actor overcomes the adolescent's will through:

(i) threats to the adolescent or any other individual;

(ii) force;

(iii) coercion; or

(iv) enticement;

(c) the actor is able to overcome the adolescent through concealment or by the element of surprise;

(d) the actor knows, or reasonably should know, that the adolescent has a mental disease or defect, which renders the adolescent unable to:

(i) appraise the nature of the act;

(ii) resist the act;

(iii) understand the possible consequences to the adolescent's health or safety; or

(iv) appraise the nature of the relationship between the actor and the adolescent;

(e) the actor knows that the adolescent participates in the sexual activity because the adolescent erroneously believes that the actor is someone else; or

(f) the actor intentionally impaired the power of the adolescent to appraise or control the adolescent's conduct by administering any substance without the adolescent’s knowledge.

Utah Code Ann. §76-5-401.3.

No.

Yes, a sexual offense is considered to occur without consent of the victim if the actor knows or reasonably should know that the victim has a mental disease or defect, which renders the victim unable to(i) appraise the nature of the act, (ii) resist the act, (iii) understand the possible consequences to the victim’s health or safety, or (iv) appraise the nature of the relationship between the actor and the victim. Utah Code Ann. §76-5-406(2)(f).

Yes, a sexual offense is considered to occur without consent of the victim if the actor knows the victim is physically unable to resist. Utah Code Ann. §76-5-406(2)(e).

Yes, a sexual offense is considered to occur without consent of the victim if the actor knows the victim is unconscious, unaware that the act is occurring or is physically unable to resist. Utah Code Ann. §76-5-406(2)(e).

Yes, a sexual offense is considered to occur without consent of the victim if the actor intentionally impaired the power of the victim to appraise or control his or her conduct by administering any substance without the victim's knowledge. Utah Code Ann. §76-5-406(2)(h).

Yes, a sexual offense is considered to occur without consent of the victim:

• If the victim is younger than 18 years old and at the time of the offense the actor was the victim’s parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust in relation to the victim (which includes scout leaders, teachers, babysitters, coaches or volunteers in schools, etc.); or
• If the actor is a health professional or religious counselor, the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been manifested.

Utah Code Ann. §§76-5-406(2)(j) and (l).

Consent is not a defense to the crime of custodial sexual relations (where the victim is in custody) or the crime of custodial sexual misconduct with a youth receiving state services.  Utah Code Ann. §§ 76-5-412.2; 76-5-413.2.  Note that a female under 18 years of age does not by marriage become capable of consenting to illicit sexual intercourse so as to bar prosecution of male participant in such act under carnal knowledge statute.  State v. Huntsman, 115 Utah 283 (Utah 1949).

Generally yes, since it is an element of the offenses that the sexual act was committed without the consent of the victim. Utah Code Ann. §76-5-406. State v. Gasper, 436 P.3d 200, 205 (Utah App. 2018).

In prosecution of a sex offense for which “lack of consent” is an element, the jury is not prevented from determining that circumstances outside those statutorily listed amount to lack of consent, and can consider whether the totality of the evidence supports a finding of lack of consent under its common, ordinary meaning.  State v. Thompson, 318 P.3d 1221, 1251 (Utah App. 2014).

No, voluntary intoxication is not a defense to sexual offenses except enticing a minor to engage in sexual activity (§76-5-417), sexual battery (§ 76-5-418), lewdness (§76-5-419), and lewdness involving a child (§76-5-420). Utah Code Ann. §76-2-306.