Chief Sponsor: Margaret Dayton

House Sponsor: Keith Grover


8     General Description:
9          This bill amends provisions regarding sexual offenses against a victim without consent
10     of the victim.
11     Highlighted Provisions:
12          This bill:
13          ▸     amends provisions regarding a victim's capacity to consent to a sexual act; and
14          ▸     makes technical changes.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     AMENDS:
21          76-5-406, as last amended by Laws of Utah 2015, Chapter 57

23     Be it enacted by the Legislature of the state of Utah:
24          Section 1. Section 76-5-406 is amended to read:
25          76-5-406. Sexual offenses against the victim without consent of victim --
26     Circumstances.
27          An act of sexual intercourse, rape, attempted rape, rape of a child, attempted rape of a

28     child, object rape, attempted object rape, object rape of a child, attempted object rape of a
29     child, sodomy, attempted sodomy, forcible sodomy, attempted forcible sodomy, sodomy on a
30     child, attempted sodomy on a child, forcible sexual abuse, attempted forcible sexual abuse,
31     sexual abuse of a child, attempted sexual abuse of a child, aggravated sexual abuse of a child,
32     attempted aggravated sexual abuse of a child, or simple sexual abuse is without consent of the
33     victim under any of the following circumstances:
34          (1) the victim expresses lack of consent through words or conduct;
35          (2) the actor overcomes the victim through the actual application of physical force or
36     violence;
37          (3) the actor is able to overcome the victim through concealment or by the element of
38     surprise;
39          (4) (a) (i) the actor coerces the victim to submit by threatening to retaliate in the
40     immediate future against the victim or any other person, and the victim perceives at the time
41     that the actor has the ability to execute this threat; or
42          (ii) the actor coerces the victim to submit by threatening to retaliate in the future
43     against the victim or any other person, and the victim believes at the time that the actor has the
44     ability to execute this threat;
45          (b) as used in this Subsection (4), "to retaliate" includes threats of physical force,
46     kidnapping, or extortion;
47          (5) the actor knows the victim is unconscious, unaware that the act is occurring, or
48     physically unable to resist;
49          (6) the actor knows that as a result of mental disease or defect, or for any other reason,
50     the victim is at the time of the act:
51          (a) incapable [either] of appraising the nature of the act [or];
52          (b) incapable of resisting [it] the act; or
53          (c) incapable of understanding the consequences of the act;
54          (7) the actor knows that the victim submits or participates because the victim
55     erroneously believes that the actor is the victim's spouse;
56          (8) the actor intentionally impaired the power of the victim to appraise or control his or
57     her conduct by administering any substance without the victim's knowledge;
58          (9) the victim is younger than 14 years of age;

59          (10) the victim is younger than 18 years of age and at the time of the offense the actor
60     was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of
61     special trust in relation to the victim as defined in Section 76-5-404.1;
62          (11) the victim is 14 years of age or older, but younger than 18 years of age, and the
63     actor is more than three years older than the victim and entices or coerces the victim to submit
64     or participate, under circumstances not amounting to the force or threat required under
65     Subsection (2) or (4); or
66          (12) the actor is a health professional or religious counselor, as those terms are defined
67     in this Subsection (12), the act is committed under the guise of providing professional
68     diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed
69     that the act was for medically or professionally appropriate diagnosis, counseling, or treatment
70     to the extent that resistance by the victim could not reasonably be expected to have been
71     manifested; for purposes of this Subsection (12):
72          (a) "health professional" means an individual who is licensed or who holds himself or
73     herself out to be licensed, or who otherwise provides professional physical or mental health
74     services, diagnosis, treatment, or counseling including, but not limited to, a physician,
75     osteopathic physician, nurse, dentist, physical therapist, chiropractor, mental health therapist,
76     social service worker, clinical social worker, certified social worker, marriage and family
77     therapist, professional counselor, psychiatrist, psychologist, psychiatric mental health nurse
78     specialist, or substance abuse counselor; and
79          (b) "religious counselor" means a minister, priest, rabbi, bishop, or other recognized
80     member of the clergy.

Legislative Review Note
Office of Legislative Research and General Counsel