Utah Legislature Modifies Unlawful Sex with a Minor Laws

In the latest legislative session, the Utah Legislature changed the law for Unlawful Sexual Conduct with a Minor, Utah Code § 76-2-304.5. The previous version of the law made it unlawful to engage in “sexual conduct” with a minor between the ages of 16 and 18 if the perpetrator was found to be ten or more years older than the minor at the time of the conduct.

Now, the law divides the offense into two categories of offenders: (1) offenders that are ten or more years older than the minor at the time of the conduct, or (2) offenders that are between seven and ten years older than the minor at the time of the conduct.

For those offenders between seven and ten years older than the minor at the time of the sexual conduct, the new statute requires that the perpetrator “knew or reasonably should have known the age of the minor.” For offenders ten years or older than the minor at the time of the sexual conduct, the State does not have to prove that the offender knew or should have known the minor was between the age of 16 and 18. The amended law specifies that offenders that are ten years or older than the minor cannot claim they were mistaken or unaware of the minor’s age, but this defense is available to the class of offenders that are seven to ten years older than the minor. See Utah Code § 76-2-304.5.

For the full text of the changes to the bill, visit the Utah Legislature website at: HB0010.html. The Governor signed the bill into law on March 22, 2013.

It is unclear in the amendment how the State of Utah will go about proving how a defendant “knew or reasonably should have known” that a victim was between 16 and 18 years of age at the time of engaging in unlawful sexual conduct with them. Much like other crimes that depend on proof of a defendant’s mental state at the time of the offense, the State of Utah will likely have to rely on circumstantial evidence. For example, if an alleged offender were to pick up the victim from a high school, a jury might be convinced that the offender knew or should have known that the victim was between 16 and 18 years old.

This addition to the Unlawful Sexual Conduct with a Minor statute broadens the scope of the law, making it possible to prosecute more individuals. At the same time, the change complicates the prosecution of those found to be between seven and ten years older than the minor. If you or a loved one has been accused of a sex crime, it is in your best interest to contact an experienced sex crime attorney to help navigate through the ever-changing laws criminalizing sex crimes and achieve the most positive outcome for you and your family.

Utah Sex Offender Registry Changes

Is justice served when a 23-year-old who dates and has a consensual sex with a 17-year-old be put on the sex offender registry next to someone who has raped a 5-year-old?

No. The crimes are different and they should be punished differently.

The Utah Sex Offender Registry is intended to provide the public with information on individuals who have been convicted of certain crimes, which include:

Kidnapping; Child kidnapping; Aggravated kidnapping; A Felony or Class A Misdemeanor violation of Enticing a minor; A Felony violation of Unlawful sexual activity with a minor; Sexual abuse of a minor; Unlawful sexual conduct with a 16 or 17 year old; Rape; Rape of a child; Object rape; Object rape of a child; A Felony violation of Forcible sodomy; Forcible sexual abuse; Sexual abuse of a child or aggravated sexual abuse of a child; Aggravated sexual assault; Sexual exploitation of a minor; Incest; Lewdness (4 convictions required for registration); Sexual Battery (4 convictions required for registration); Lewdness involving a child; Aggravated exploitation of prostitution; Aggravated Human Trafficking; Sexual Exploitation of a Vulnerable adult; Custodial Sexual Relations (person in custody under age of 18); A Felony or Class A Misdemeanor Violation of Voyeurism; Sodomy of a child.

As you can see from the list, these are very serious charges. But a blanket approach is not good and the Utah Legislature is responding to that criticism with H.B. 13 – Offender Registry Review.

Under the new law, offenders convicted of unlawful sexual conduct with a 16 or 17 year old, unlawful sexual activity with a 14 or 15 year-old minor or voyeurism could petition a judge for removal from the registry after 5 years instead of 10 years. The offender must complete all required counseling and broken no other laws since their sexual offense. The judge gets the final say to whether the person will be removed early.

According to the Salt Lake Tribune’s reporting of Utah Department of Correction statistics, “there are about 6,900 sex offenders on Utah’s list. Of those, 167 are registered for unlawful sexual conduct with a 16 or 17 year old, 747 for unlawful sexual activity with a minor and 18 for voyeurism.”

This bill will allow individuals convicted of unlawful sexual activity and misdemeanor violations of voyeurism to get their lives back on track after 5 years instead of 10. It is a common sense compromise between proponents of the sex offender registry and people who believe that the sex offender registry is unfair.

You can track the status of the bill at http://le.utah.gov/~2012/bills/hbillint/hb0013.htm.

Can Utah Police Search My Home For Evidence In Sex Crime Like Possession Of Child Porn?

The United States Supreme Court has repeatedly held that a person’s home is subject to the greatest protection under the Fourth Amendment of the United States Constitution.

Before an officer may search a home for evidence of a sex crime, the officer must first secure a search warrant from a Judge. There are a few exceptions to this general rule but the exceptions are narrow. Even though an officer does not have a warrant, if the officer is attempting to search your home, you should not physically resist the officer. Instead, step out of the way and let the officer do what he or she is going to do. Do not consent to the search but do not physically resist it either. It is best to raise these issues in court rather than risk a confrontation between yourself and the police. Rarely does a citizen win in such situations and they are almost always a threat to your physical safety. If the officer asks you questions, you should respectfully decline to answer them. You are under no legal obligation to answer questions even if the officer has a warrant.

When dealing with the police remember the three golden rules:

1. Don’t trust or believe the police.

2. Don’t resist being handcuffed.

3. Don’t say a damn thing

Flashing is a Crime in Utah

In recent weeks, Salt Lake and Davis counties have had a rash of incidents involving one of more flashers. Earlier this week, Farmington Police arrested a 34 year old Layton man believed to have exposed himself to 10 women. According to police the man said it was a “turn on and a thrill for him” to expose himself. Police are unable to determine at this time if this is the same person connected to reports of a nude man in the Mill Creek Canyon area.

In Utah, a person is guilty of Lewdenss if he or she commits a sexual act in front of another in public which does not amount to rape, object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault or an attempt to commit such offenses in a public place or under circumstances which the person should know will likely cause affront or alarm to, on, or in the presence of another who is 14 years of age or older. It includes acts such as sodomy or sexual intercourse, exposing the private areas of the body, masturbating, and other acts which could be considered “lewd” by a reasonable person.

It is a class B misdemeanor if this a first or second offense however it is a third degree felony if convicted of lewdness two or more times or if you are a convicted sex offender. If the act is committed in from of a child (someone under 14 years of age) then it is a class A misdemeanor. Here in Utah, public breastfeeding is exempt from  lewdness statutes even if some area of the breast is exposed.

If you have been charged with an offense which may violate public decency laws contact an attorney for advice.

Competent to Stand Trial in Utah?

In Utah, a defendant must be able to understand the nature of the charges against them, their rights and be able to participate in their own defense and if they are unable to do so because of mental illness or other mental deficiencies a defendant may be found incompetent to stand trial. Between 2% and 8% of all felony defendants in the United States are referred for competency evaluations. Here in Utah, if a defendant is found incompetent to stand trial they are committed to the executive director of the Department of Human Services to see if they can be restored to competency through treatment and/or medication. If however, competency isn’t restored and there is a substantial probability that the defendant will not become competent in the foreseeable future the court must release the defendant from the custody of the director unless the court is informed of civil commitment proceedings.
Such is the case for a Utah man who in 2007 was charged with rape, sodomy and aggravated sexual abuse of a child. Lonnie Johnson was declared incompetent to stand trial after numerous competency evaluations and has been held at the Utah State Hospital since 2008. In April 2011 Mr. Johnson was released by a 4th District Court Judge who had no legal basis for continuing to hold him based on a doctor’s report that it was unlikely that he would ever regain competency. Prosecutor’s are now working to have Johnson civilly committed. If however prosecutors are unable to show that Johnson’s mental illness makes him a danger to himself or others it is possible he will be set free.

Utah’s Legal Definition of Sodomy on a Child

In Utah, aperson commits sodomy upon a child if the actor engages in any sexual act upon or with a child who is under the age of 14, involving the genitals or anus of the actor or the child and the mouth or anus of either person, regardless of the sex of either participant.

Sodomy upon a child is a first degree felony punishable by imprisonment for an indeterminate term of not less than 6, 10, or 15 years and which may be for life. Imprisonment is mandatory in accordance with Section 76-3-406.