S.B. 4

1

PROHIBITION OF INTIMACY WITH PERSON
2 IN CUSTODY
3 2001 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Paula F. Julander
6 This act modifies the Criminal Code by creating the offenses of custodial sexual relations and
7 custodial sexual misconduct. These offenses address inappropriate acts committed by a
8 correctional officer, law enforcement officer, or other specified employee against a person
9 in custody. The act provides definitions and penalties, and specifies the defense of
10 compulsion. This act takes effect on July 1, 2001.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 ENACTS:
13 76-5-412, Utah Code Annotated 1953
14 Be it enacted by the Legislature of the state of Utah:
15 Section 1. Section 76-5-412 is enacted to read:
16 76-5-412. Custodial sexual relations -- Custodial sexual misconduct -- Definitions --
17 Penalties -- Defenses.
18 (1) As used in this section:
19 (a) "Actor" means:
20 (i) a correctional officer, as defined in Section 53-13-104 ;
21 (ii) a law enforcement officer, as defined in Section 53-13-103 ; or
22 (iii) an employee of, or private provider or contractor for, the Department of Corrections
23 or a county jail.
24 (b) "Person in custody" means a person, either an adult 18 years of age or older, or a minor
25 younger than 18 years of age, who is:
26 (i) a prisoner, as defined in Section 76-5-101 , and includes a prisoner who is in the custody
27 of the Department of Corrections created under Section 64-13-2 , but who is being housed at the

28 Utah State Hospital established under Section 62A-12-201 or other medical facility;
29 (ii) under correctional supervision, such as at a work release facility or as a parolee or
30 probationer; or
31 (iii) under lawful or unlawful arrest, either with or without a warrant.
32 (c) "Private provider or contractor" means any person or entity that contracts with the
33 Department of Corrections or with a county jail to provide services or functions that are part of the
34 operation of the Department of Corrections or a county jail under state or local law.
35 (2) (a) An actor commits custodial sexual relations if the actor commits any of the acts
36 under Subsection (3):
37 (i) under circumstances not amounting to commission of, or an attempt to commit, an
38 offense under Subsection (6); and
39 (ii) (A) the actor knows that the individual is a person in custody; or
40 (B) a reasonable person in the actor's position should have known under the circumstances
41 that the individual was a person in custody.
42 (b) A violation of Subsection (2)(a) is a third degree felony, but if the person in custody
43 is younger than 18 years of age, a violation of Subsection (2)(a) is a second degree felony.
44 (c) If the act committed under this Subsection (2) amounts to an offense subject to a
45 greater penalty under another provision of state law than is provided under this Subsection (2), this
46 Subsection (2) does not prohibit prosecution and sentencing for the more serious offense.
47 (3) Acts referred to in Subsection (2)(a) are:
48 (a) having sexual intercourse with a person in custody;
49 (b) engaging in any sexual act with a person in custody involving the genitals of one
50 person and the mouth or anus of another person, regardless of the sex of either participant; or
51 (c) causing the penetration, however slight, of the genital or anal opening of a person in
52 custody by any foreign object, substance, instrument, or device, including a part of the human
53 body, with the intent to cause substantial emotional or bodily pain to any person, regardless of the
54 sex of any participant.
55 (4) (a) An actor commits custodial sexual misconduct if the actor commits any of the acts
56 under Subsection (5):
57 (i) under circumstances not amounting to commission of, or an attempt to commit, an
58 offense under Subsection (6); and

59 (ii) (A) the actor knows that the individual is a person in custody; or
60 (B) a reasonable person in the actor's position should have known under the circumstances
61 that the individual was a person in custody.
62 (b) A violation of Subsection (4)(a) is a class A misdemeanor, but if the person in custody
63 is younger than 18 years of age, a violation of Subsection (4)(a) is a third degree felony.
64 (c) If the act committed under this Subsection (4) amounts to an offense subject to a
65 greater penalty under another provision of state law than is provided under this Subsection (4), this
66 Subsection (4) does not prohibit prosecution and sentencing for the more serious offense.
67 (5) Acts referred to in Subsection (4)(a) are the following acts when committed with the
68 intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or
69 gratify the sexual desire of any person, regardless of the sex of any participant:
70 (a) touching the anus, buttocks, or any part of the genitals of a person in custody;
71 (b) touching the breast of a female person in custody;
72 (c) otherwise taking indecent liberties with a person in custody; or
73 (d) causing a person in custody to take indecent liberties with the actor or another person.
74 (6) The offenses referred to in Subsections (2)(a)(i) and (4)(a)(i) are:
75 (a) Section 76-5-401 , unlawful sexual activity with a minor;
76 (b) Section 76-5-402 , rape;
77 (c) Section 76-5-402.1 , rape of a child;
78 (d) Section 76-5-402.2 , object rape;
79 (e) Section 76-5-402.3 , object rape of a child;
80 (f) Section 76-5-403 , forcible sodomy;
81 (g) Section 76-5-403.1 , sodomy on a child;
82 (h) Section 76-5-404 , forcible sexual abuse;
83 (i) Section 76-5-404.1 , sexual abuse of a child or aggravated sexual abuse of a child; or
84 (j) Section 76-5-405 , aggravated sexual assault.
85 (7) (a) It is not a defense to the commission of the offense of custodial sexual relations
86 under Subsection (2) or custodial sexual misconduct under Subsection (4), or an attempt to commit
87 either of these offenses, if the person in custody is younger than 18 years of age, that the actor:
88 (i) mistakenly believed the person in custody to be 18 years of age or older at the time of
89 the alleged offense; or

90 (ii) was unaware of the true age of the person in custody.
91 (b) Consent of the person in custody is not a defense to any violation or attempted
92 violation of Subsection (2) or (4).
93 (8) It is a defense that the commission by the actor of an act under Subsection (2) or (4)
94 is the result of compulsion, as the defense is described in Subsection 76-2-302 (1).
95 Section 2. Effective date.
96 This act takes effect on July 1, 2001.




Legislative Review Note
as of 10-20-00 10:20 AM

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

Office of Legislative Research and General Counsel

Committee Note

The Law Enforcement and Criminal Justice Interim Committee recommended this bill.