Consent Laws
Utah

Last Updated: December 2017
Defining Consent Answer

How is consent defined?

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

  • (1) the victim expresses lack of consent through words or conduct;
  • (2) the actor overcomes the victim through the actual application of physical force or violence;
  • (3) the actor is able to overcome the victim through concealment or by the element of surprise;
  • (4)
    • (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)
  • (5) the actor knows the victim is unconscious, unaware that the act is occurring, or physically unable to resist;
  • (6) the actor knows that as a result of mental disease or defect, or for any other reason the victim is at the time of the act incapable either of appraising the nature of the act or of resisting it;
  • (7) the actor knows that the victim submits or participates because the victim erroneously believes that the actor is the victim's spouse;
  • (8) 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;
  • (9) the victim is younger than 14 years of age;
  • (10) 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;
  • (11) 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 (2) or (4); or

(12) 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.

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

No.






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 actor knows:

  • 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(9) and (11).

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 didn’t know the minor’s age. Utah Code Ann. §76-5-401.2.

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 that as a result of mental disease or defect the victim is, at the time of the act, incapable either of appraising the nature of the act or of resisting it. Utah Code Ann. §76-5-406(6).

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(5).

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 or unaware that the act is occurring. Utah Code Ann. §76-5-406(5).

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(8).

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(10) and (12).

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 (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.

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 (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.









DNA evidence can increase likelihood of holding a perpetrator accountable.

Read More

Sexual violence has fallen by half in the last 20 years.

More Stats

The National Sexual Assault Hotline will always be free — with your help.

Donate Now