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H.B. 92

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SEXUAL OFFENSES WITHOUT CONSENT OF

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VICTIM

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1998 GENERAL SESSION

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STATE OF UTAH

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Sponsor: Katherine Bryson

6    AN ACT RELATING TO THE CRIMINAL CODE; PROVIDING THAT SEXUAL OFFENSES
7    COMMITTED BY A HEALTH PROFESSIONAL OR RELIGIOUS COUNSELOR ARE
8    WITHOUT THE CONSENT OF THE VICTIM UNDER SPECIFIED CIRCUMSTANCES.
9    This act affects sections of Utah Code Annotated 1953 as follows:
10    AMENDS:
11         76-5-406, as last amended by Chapter 137, Laws of Utah 1996
12    Be it enacted by the Legislature of the state of Utah:
13        Section 1. Section 76-5-406 is amended to read:
14         76-5-406. Sexual offenses against the victim without consent of victim --
15     Circumstances.
16        An act of sexual intercourse, rape, attempted rape, rape of a child, attempted rape of a child,
17    object rape, attempted object rape, object rape of a child, attempted object rape of a child, sodomy,
18    attempted sodomy, forcible sodomy, attempted forcible sodomy, sodomy upon a child, attempted
19    sodomy upon a child, forcible sexual abuse, attempted forcible sexual abuse, sexual abuse of a
20    child, attempted sexual abuse of a child, aggravated sexual abuse of a child, attempted aggravated
21    sexual abuse of a child, or simple sexual abuse is without consent of the victim under any of the
22    following circumstances:
23        (1) the victim expresses lack of consent through words or conduct;
24        (2) the actor overcomes the victim through the actual application of physical force or
25    violence;
26        (3) the actor is able to overcome the victim through concealment or by the element of
27    surprise;


1        (4) (a) (i) the actor coerces the victim to submit by threatening to retaliate in the immediate
2    future against the victim or any other person, and the victim perceives at the time that the actor has
3    the ability to execute this threat; or
4        (ii) the actor coerces the victim to submit by threatening to retaliate in the future against
5    the victim or any other person, and the victim believes at the time that the actor has the ability to
6    execute this threat;
7        (b) as used in this subsection "to retaliate" includes but is not limited to threats of physical
8    force, kidnaping, or extortion;
9        (5) the victim has not consented and the actor knows the victim is unconscious, unaware
10    that the act is occurring, or physically unable to resist;
11        (6) the actor knows that as a result of mental disease or defect, the victim is at the time of
12    the act incapable either of appraising the nature of the act or of resisting it;
13        (7) the actor knows that the victim submits or participates because the victim erroneously
14    believes that the actor is the victim's spouse;
15        (8) the actor intentionally impaired the power of the victim to appraise or control his or
16    her conduct by administering any substance without the victim's knowledge;
17        (9) the victim is younger than 14 years of age;
18        (10) the victim is younger than 18 years of age and at the time of the offense the actor was
19    the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of special
20    trust in relation to the victim as defined in Subsection 76-5-404.1(3)(h); [or]
21        (11) the victim is 14 years of age or older, but not older than 17, and the actor is more than
22    three years older than the victim and entices or coerces the victim to submit or participate, under
23    circumstances not amounting to the force or threat required under Subsection (2) or (4)[.]; or
24        (12) the actor is a health professional or religious counselor, as those terms are defined in
25    this Subsection (12), the act is committed under the guise of providing professional diagnosis,
26    counseling, or treatment, and at the time of the act the victim reasonably believed that the act was
27    for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that
28    resistance by the victim could not reasonably be expected to have been manifested. For purposes
29    of this Subsection (12):
30        (a) "health professional" means an individual who is licensed or who holds himself out to
31    be licensed, or who otherwise provides professional physical or mental health services, diagnosis,

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1    treatment or counseling including, but not limited to, a physician, osteopathic physician, nurse,
2    dentist, physical therapist, chiropractor, mental health therapist, social service worker, clinical
3    social worker, certified social worker, marriage and family therapist, professional counselor,
4    psychiatrist, psychologist, psychiatric mental health nurse specialist, or substance abuse counselor;
5    and
6        (b) "religious counselor" means a minister, priest, rabbi, bishop, or other recognized
7    member of the clergy.




Legislative Review Note
    as of 1-7-98 3:32 PM


A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


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