Chief Sponsor: Angela Romero

Senate Sponsor: Todd Weiler


8     General Description:
9          This bill modifies the definition of consent in the Criminal Code regarding sexual
10     offenses.
11     Highlighted Provisions:
12          This bill:
13          ▸     amends the definition of "without consent of the victim" regarding sexual offenses
14     in the following provisions:
15               •     when the defendant knows the victim is unconscious or unaware, the provision
16     requiring proof that the victim has not consented is removed; and
17               •     when the defendant knows that the victim is incapable of understanding or
18     resisting the offense, the requirement that the defendant also know that the
19     victim has a mental disease or defect is removed.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          76-5-406, as last amended by Laws of Utah 2014, Chapters 135 and 141

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 76-5-406 is amended to read:
30          76-5-406. Sexual offenses against the victim without consent of victim --
31     Circumstances.
32          An act of sexual intercourse, rape, attempted rape, rape of a child, attempted rape of a
33     child, object rape, attempted object rape, object rape of a child, attempted object rape of a
34     child, sodomy, attempted sodomy, forcible sodomy, attempted forcible sodomy, sodomy on a
35     child, attempted sodomy on a child, forcible sexual abuse, attempted forcible sexual abuse,
36     sexual abuse of a child, attempted sexual abuse of a child, aggravated sexual abuse of a child,
37     attempted aggravated sexual abuse of a child, or simple sexual abuse is without consent of the
38     victim under any of the following circumstances:
39          (1) the victim expresses lack of consent through words or conduct;
40          (2) the actor overcomes the victim through the actual application of physical force or
41     violence;
42          (3) the actor is able to overcome the victim through concealment or by the element of
43     surprise;
44          (4) (a) (i) the actor coerces the victim to submit by threatening to retaliate in the
45     immediate future against the victim or any other person, and the victim perceives at the time
46     that the actor has the ability to execute this threat; or
47          (ii) the actor coerces the victim to submit by threatening to retaliate in the future
48     against the victim or any other person, and the victim believes at the time that the actor has the
49     ability to execute this threat;
50          (b) as used in this Subsection (4), "to retaliate" includes threats of physical force,
51     kidnapping, or extortion;
52          (5) [the victim has not consented and] the actor knows the victim is unconscious,
53     unaware that the act is occurring, or physically unable to resist;
54          (6) the actor knows that [as a result of mental disease or defect,] the victim is at the
55     time of the act incapable either of appraising the nature of the act or of resisting it;
56          (7) the actor knows that the victim submits or participates because the victim
57     erroneously believes that the actor is the victim's spouse;
58          (8) the actor intentionally impaired the power of the victim to appraise or control his or

59     her conduct by administering any substance without the victim's knowledge;
60          (9) the victim is younger than 14 years of age;
61          (10) the victim is younger than 18 years of age and at the time of the offense the actor
62     was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of
63     special trust in relation to the victim as defined in Section 76-5-404.1;
64          (11) the victim is 14 years of age or older, but younger than 18 years of age, and the
65     actor is more than three years older than the victim and entices or coerces the victim to submit
66     or participate, under circumstances not amounting to the force or threat required under
67     Subsection (2) or (4); or
68          (12) the actor is a health professional or religious counselor, as those terms are defined
69     in this Subsection (12), the act is committed under the guise of providing professional
70     diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed
71     that the act was for medically or professionally appropriate diagnosis, counseling, or treatment
72     to the extent that resistance by the victim could not reasonably be expected to have been
73     manifested; for purposes of this Subsection (12):
74          (a) "health professional" means an individual who is licensed or who holds himself or
75     herself out to be licensed, or who otherwise provides professional physical or mental health
76     services, diagnosis, treatment, or counseling including, but not limited to, a physician,
77     osteopathic physician, nurse, dentist, physical therapist, chiropractor, mental health therapist,
78     social service worker, clinical social worker, certified social worker, marriage and family
79     therapist, professional counselor, psychiatrist, psychologist, psychiatric mental health nurse
80     specialist, or substance abuse counselor; and
81          (b) "religious counselor" means a minister, priest, rabbi, bishop, or other recognized
82     member of the clergy.

Legislative Review Note
     as of 11-18-14 5:47 PM

Office of Legislative Research and General Counsel