Consent Laws
Utah

Last Updated: March 2020
Defining Consent Answer

How is consent defined?

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).

Does the definition require "freely given consent" or "affirmative consent"?

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). 






Capacity to Consent Answer

At what age is a person able to consent?

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

Does difference in age between the victim and actor impact the victim's ability to consent?

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).

In addition, it is legal for minors aged 16 or 17 to engage in sexual conduct with partners less than 7 years older than the minor, and with partners between 7 and 10 years older if the partner reasonably did not know the minor’s age. Utah Code Ann. §76-5-401.2.

Sexual activity between individuals 12 years or older but under 18 years old but not amounting to rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy on a child, sexual abuse of a child, aggravated sexual assault or incest 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 12 or 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 adolescent who is 14 or 15 to engage in unlawful adolescent sexual activity with an adolescent who is 12;
  • class B misdemeanor for an adolescent who is 17 years old to engage in unlawful adolescent sexual activity with an adolescent who is 14;
  • class B misdemeanor for an adolescent who is 15 years old to engage in unlawful adolescent sexual activity with an adolescent who is 13;
  • class C misdemeanor for an adolescent 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 adolescent who is 14 years old to engage in unlawful adolescent sexual activity with an adolescent who is 13. Utah Code Ann. §76-5-401.3.

Does elderly age impact the victim’s ability to consent?

No.

Does developmental disability and/or mental incapacity impact the victim’s ability to consent?

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).

Does physical disability, incapacity or helplessness impact the victim’s ability to consent?

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).

Does consciousness impact the victim’s ability to consent?

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).

Does intoxication impact the victim’s ability to consent?

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).

Does the relationship between the victim and actor impact the victim’s ability to consent?

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).

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).






Defenses Answer

Is consent a defense to sex crimes?

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 (Utah App 2014).

Is voluntary intoxication a defense to sex crimes?

No, voluntary intoxication is not a defense to sexual offenses. Utah Code Ann. §76-2-306.









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