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7 LONG TITLE
8 General Description:
9 This bill creates the offense of sexual conduct without affirmative consent.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ creates a third degree felony offense of sexual conduct without affirmative consent;
14 ▸ amends the Sex and Kidnap Offender Registry to include the offense of sexual
15 conduct without affirmative consent; and
16 ▸ makes technical and conforming changes.
17 Money Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 This bill provides a special effective date.
21 Utah Code Sections Affected:
22 AMENDS:
23 77-41-102 (Superseded 07/01/24), as last amended by Laws of Utah 2023, Chapter 123
24 77-41-102 (Effective 07/01/24), as last amended by Laws of Utah 2023, Chapters 123,
25 128
26 ENACTS:
27 76-5-406.1, Utah Code Annotated 1953
28
29 Be it enacted by the Legislature of the state of Utah:
30 Section 1. Section 76-5-406.1 is enacted to read:
31 76-5-406.1. Sexual conduct without affirmative consent.
32 (1) (a) As used in this section:
33 (i) "Affirmative consent" means words or actions by an individual who is competent to
34 give informed consent indicating a freely given agreement to engage in sexual conduct at the
35 time of the act.
36 (ii) "Sexual conduct" means:
37 (A) engaging in sexual intercourse with another individual;
38 (B) causing the penetration, however slight, of the genital or anal opening of another
39 individual who is 14 years old or older, by any foreign object, substance, instrument, or device,
40 including a part of the human body other than the mouth or genitals, with intent to cause
41 substantial emotional or bodily pain to the victim or with the intent to arouse or gratify the
42 sexual desire of any individual; or
43 (C) engaging in any sexual act with an individual who is 14 years old or older
44 involving the genitals of one individual and the mouth or anus of another individual, regardless
45 of the sex of either participant.
46 (b) Terms defined in Section 76-1-101.5 apply to this section.
47 (2) Except as provided in Subsection (4), an individual commits sexual conduct
48 without affirmative consent if the individual intentionally or knowingly engages in sexual
49 conduct with another individual without that other individual's affirmative consent.
50 (3) (a) Except as provided in Subsection (3)(b), a violation of Subsection (2) is a third
51 degree felony.
52 (b) A violation of Subsection (2) is a class A misdemeanor if it is committed by an
53 individual under 18 years old at the time of the offense.
54 (4) This section does not apply if, for the same conduct, the individual is guilty of a
55 violation of another provision of this part that is punishable by a higher penalty.
56 (5) Affirmative consent to one sexual act or affirmative consent to a prior sexual act
57 does not, without more, constitute affirmative consent to another sexual act.
58 (6) Affirmative consent initially given may be withdrawn through words or conduct at
59 any time before or during sexual activity.
60 (7) This section does not alter the requirement in Utah law that the prosecution will
61 bear the burden of proof under this section on all elements of the offense, as defined in
62 Subsection 76-1-501(2).
63 Section 2. Section 77-41-102 (Superseded 07/01/24) is amended to read:
64 77-41-102 (Superseded 07/01/24). Definitions.
65 As used in this chapter:
66 (1) "Bureau" means the Bureau of Criminal Identification of the Department of Public
67 Safety established in section 53-10-201.
68 (2) "Business day" means a day on which state offices are open for regular business.
69 (3) "Certificate of eligibility" means a document issued by the Bureau of Criminal
70 Identification showing that the offender has met the requirements of Section 77-41-112.
71 (4) (a) "Convicted" means a plea or conviction of:
72 (i) guilty;
73 (ii) guilty with a mental condition; or
74 (iii) no contest.
75 (b) "Convicted" includes, unless otherwise specified, the period a plea is held in
76 abeyance pursuant to a plea in abeyance agreement as defined in Section 77-2a-1.
77 (c) "Convicted" does not include:
78 (i) a withdrawn or dismissed plea in abeyance;
79 (ii) a diversion agreement; or
80 (iii) an adjudication of a minor for an offense under Section 80-6-701.
81 (5) "Department" means the Department of Corrections.
82 (6) "Division" means the Division of Juvenile Justice Services.
83 (7) "Employed" or "carries on a vocation" includes employment that is full time or part
84 time, whether financially compensated, volunteered, or for the purpose of government or
85 educational benefit.
86 (8) "Indian Country" means:
87 (a) all land within the limits of any Indian reservation under the jurisdiction of the
88 United States government, regardless of the issuance of any patent, and includes rights-of-way
89 running through the reservation;
90 (b) all dependent Indian communities within the borders of the United States whether
91 within the original or subsequently acquired territory, and whether or not within the limits of a
92 state; and
93 (c) all Indian allotments, including the Indian allotments to which the Indian titles have
94 not been extinguished, including rights-of-way running through the allotments.
95 (9) "Jurisdiction" means any state, Indian Country, United States Territory, or any
96 property under the jurisdiction of the United States military, Canada, the United Kingdom,
97 Australia, or New Zealand.
98 (10) "Kidnap offender" means any individual, other than a natural parent of the victim:
99 (a) who has been convicted in this state of a violation of:
100 (i) Subsection 76-5-301(2)(c) or (d), kidnapping;
101 (ii) Section 76-5-301.1, child kidnapping;
102 (iii) Section 76-5-302, aggravated kidnapping;
103 (iv) Section 76-5-308, human trafficking for labor;
104 (v) Section 76-5-308.3, human smuggling;
105 (vi) Section 76-5-308, human smuggling, when the individual smuggled is under 18
106 years old;
107 (vii) Section 76-5-308.5, human trafficking of a child for labor;
108 (viii) Section 76-5-310, aggravated human trafficking;
109 (ix) Section 76-5-310.1, aggravated human smuggling;
110 (x) Section 76-5-311, human trafficking of a vulnerable adult for labor; or
111 (xi) attempting, soliciting, or conspiring to commit any felony offense listed in
112 Subsections (10)(a)(i) through (x);
113 (b) (i) who has been convicted of any crime, or an attempt, solicitation, or conspiracy
114 to commit a crime in another jurisdiction, including any state, federal, or military court that is
115 substantially equivalent to the offenses listed in Subsection (10)(a); and
116 (ii) who is:
117 (A) a Utah resident; or
118 (B) not a Utah resident, but who, in any 12-month period, is in this state for a total of
119 10 or more days, regardless of whether or not the offender intends to permanently reside in this
120 state;
121 (c) (i) (A) who is required to register as a kidnap offender in any other jurisdiction of
122 original conviction;
123 (B) who is required to register as a kidnap offender by any state, federal, or military
124 court; or
125 (C) who would be required to register as a kidnap offender if residing in the
126 jurisdiction of the conviction regardless of the date of the conviction or any previous
127 registration requirements; and
128 (ii) in any 12-month period, who is in this state for a total of 10 or more days,
129 regardless of whether or not the offender intends to permanently reside in this state;
130 (d) (i) (A) who is a nonresident regularly employed or working in this state; or
131 (B) who is a student in this state; and
132 (ii) (A) who was convicted of one or more offenses listed in this Subsection (10), or
133 any substantially equivalent offense in another jurisdiction; or
134 (B) as a result of the conviction, who is required to register in the individual's state of
135 residence;
136 (e) who is found not guilty by reason of insanity in this state or in any other jurisdiction
137 of one or more offenses listed in this Subsection (10); or
138 (f) (i) who is adjudicated under Section 80-6-701 for one or more offenses listed in
139 Subsection (10)(a); and
140 (ii) who has been committed to the division for secure care, as defined in Section
141 80-1-102, for that offense if:
142 (A) the individual remains in the division's custody until 30 days before the individual's
143 21st birthday;
144 (B) the juvenile court extended the juvenile court's jurisdiction over the individual
145 under Section 80-6-605 and the individual remains in the division's custody until 30 days
146 before the individual's 25th birthday; or
147 (C) the individual is moved from the division's custody to the custody of the
148 department before expiration of the division's jurisdiction over the individual.
149 (11) "Natural parent" means a minor's biological or adoptive parent, and includes the
150 minor's noncustodial parent.
151 (12) "Offender" means a kidnap offender as defined in Subsection (10) or a sex
152 offender as defined in Subsection (18).
153 (13) "Online identifier" or "Internet identifier":
154 (a) means any electronic mail, chat, instant messenger, social networking, or similar
155 name used for Internet communication; and
156 (b) does not include date of birth, social security number, PIN number, or Internet
157 passwords.
158 (14) "Primary residence" means the location where the offender regularly resides, even
159 if the offender intends to move to another location or return to another location at any future
160 date.
161 (15) "Register" means to comply with the requirements of this chapter and
162 administrative rules of the department made under this chapter.
163 (16) "Registration website" means the Sex and Kidnap Offender Notification and
164 Registration website described in Section 77-41-110 and the information on the website.
165 (17) "Secondary residence" means any real property that the offender owns or has a
166 financial interest in, or any location where, in any 12-month period, the offender stays
167 overnight a total of 10 or more nights when not staying at the offender's primary residence.
168 (18) "Sex offender" means any individual:
169 (a) convicted in this state of:
170 (i) a felony or class A misdemeanor violation of Section 76-4-401, enticing a minor;
171 (ii) Section 76-5b-202, sexual exploitation of a vulnerable adult;
172 (iii) Section 76-5-308.1, human trafficking for sexual exploitation;
173 (iv) Section 76-5-308.5, human trafficking of a child for sexual exploitation;
174 (v) Section 76-5-310, aggravated human trafficking for sexual exploitation;
175 (vi) Section 76-5-311, human trafficking of a vulnerable adult for sexual exploitation;
176 (vii) Section 76-5-401, unlawful sexual activity with a minor, except as provided in
177 Subsection 76-5-401(3)(b) or (c);
178 (viii) Section 76-5-401.1, sexual abuse of a minor, except as provided in Subsection
179 76-5-401.1(3);
180 (ix) Section 76-5-401.2, unlawful sexual conduct with a 16 or 17 year old;
181 (x) Section 76-5-402, rape;
182 (xi) Section 76-5-402.1, rape of a child;
183 (xii) Section 76-5-402.2, object rape;
184 (xiii) Section 76-5-402.3, object rape of a child;
185 (xiv) a felony violation of Section 76-5-403, forcible sodomy;
186 (xv) Section 76-5-403.1, sodomy on a child;
187 (xvi) Section 76-5-404, forcible sexual abuse;
188 (xvii) Section 76-5-404.1, sexual abuse of a child, or Section 76-5-404.3, aggravated
189 sexual abuse of a child;
190 (xviii) Section 76-5-405, aggravated sexual assault;
191 (xix) Section 76-5-406.1, sexual conduct without affirmative consent, if the individual
192 was 18 years old or older at the time of the offense;
193 [
194 custody is younger than 18 years old, if the offense is committed on or after May 10, 2011;
195 [
196 [
197 [
198 [
199 [
200 offense four or more times;
201 [
202 of the offense four or more times;
203 [
204 Section 76-9-702.1, sexual battery, that total four or more convictions;
205 [
206 [
207 voyeurism;
208 [
209 [
210 in this Subsection (18)(a);
211 (b) (i) who has been convicted of any crime, or an attempt, solicitation, or conspiracy
212 to commit a crime in another jurisdiction, including any state, federal, or military court that is
213 substantially equivalent to the offenses listed in Subsection (18)(a); and
214 (ii) who is:
215 (A) a Utah resident; or
216 (B) not a Utah resident, but who, in any 12-month period, is in this state for a total of
217 10 or more days, regardless of whether the offender intends to permanently reside in this state;
218 (c) (i) (A) who is required to register as a sex offender in any other jurisdiction of
219 original conviction;
220 (B) who is required to register as a sex offender by any state, federal, or military court;
221 or
222 (C) who would be required to register as a sex offender if residing in the jurisdiction of
223 the original conviction regardless of the date of the conviction or any previous registration
224 requirements; and
225 (ii) who, in any 12-month period, is in the state for a total of 10 or more days,
226 regardless of whether or not the offender intends to permanently reside in this state;
227 (d) (i) (A) who is a nonresident regularly employed or working in this state; or
228 (B) who is a student in this state; and
229 (ii) (A) who was convicted of one or more offenses listed in Subsection (18)(a), or any
230 substantially equivalent offense in any jurisdiction; or
231 (B) who is, as a result of the conviction, required to register in the individual's
232 jurisdiction of residence;
233 (e) who is found not guilty by reason of insanity in this state, or in any other
234 jurisdiction of one or more offenses listed in Subsection (18)(a); or
235 (f) (i) who is adjudicated under Section 80-6-701 for one or more offenses listed in
236 Subsection (18)(a); and
237 (ii) who has been committed to the division for secure care, as defined in Section
238 80-1-102, for that offense if:
239 (A) the individual remains in the division's custody until 30 days before the individual's
240 21st birthday;
241 (B) the juvenile court extended the juvenile court's jurisdiction over the individual
242 under Section 80-6-605 and the individual remains in the division's custody until 30 days
243 before the individual's 25th birthday; or
244 (C) the individual is moved from the division's custody to the custody of the
245 department before expiration of the division's jurisdiction over the individual.
246 (19) "Traffic offense" does not include a violation of Title 41, Chapter 6a, Part 5,
247 Driving Under the Influence and Reckless Driving.
248 (20) "Vehicle" means any motor vehicle, aircraft, or watercraft subject to registration in
249 any jurisdiction.
250 Section 3. Section 77-41-102 (Effective 07/01/24) is amended to read:
251 77-41-102 (Effective 07/01/24). Definitions.
252 As used in this chapter:
253 (1) "Bureau" means the Bureau of Criminal Identification of the Department of Public
254 Safety established in section 53-10-201.
255 (2) "Business day" means a day on which state offices are open for regular business.
256 (3) "Certificate of eligibility" means a document issued by the Bureau of Criminal
257 Identification showing that the offender has met the requirements of Section 77-41-112.
258 (4) (a) "Convicted" means a plea or conviction of:
259 (i) guilty;
260 (ii) guilty with a mental illness; or
261 (iii) no contest.
262 (b) "Convicted" includes, unless otherwise specified, the period a plea is held in
263 abeyance pursuant to a plea in abeyance agreement as defined in Section 77-2a-1.
264 (c) "Convicted" does not include:
265 (i) a withdrawn or dismissed plea in abeyance;
266 (ii) a diversion agreement; or
267 (iii) an adjudication of a minor for an offense under Section 80-6-701.
268 (5) "Department" means the Department of Public Safety.
269 (6) "Division" means the Division of Juvenile Justice Services.
270 (7) "Employed" or "carries on a vocation" includes employment that is full time or part
271 time, whether financially compensated, volunteered, or for the purpose of government or
272 educational benefit.
273 (8) "Indian Country" means:
274 (a) all land within the limits of any Indian reservation under the jurisdiction of the
275 United States government, regardless of the issuance of any patent, and includes rights-of-way
276 running through the reservation;
277 (b) all dependent Indian communities within the borders of the United States whether
278 within the original or subsequently acquired territory, and whether or not within the limits of a
279 state; and
280 (c) all Indian allotments, including the Indian allotments to which the Indian titles have
281 not been extinguished, including rights-of-way running through the allotments.
282 (9) "Jurisdiction" means any state, Indian Country, United States Territory, or any
283 property under the jurisdiction of the United States military, Canada, the United Kingdom,
284 Australia, or New Zealand.
285 (10) "Kidnap offender" means any individual, other than a natural parent of the victim:
286 (a) who has been convicted in this state of a violation of:
287 (i) Subsection 76-5-301(2)(c) or (d), kidnapping;
288 (ii) Section 76-5-301.1, child kidnapping;
289 (iii) Section 76-5-302, aggravated kidnapping;
290 (iv) Section 76-5-308, human trafficking for labor;
291 (v) Section 76-5-308.3, human smuggling;
292 (vi) Section 76-5-308, human smuggling, when the individual smuggled is under 18
293 years old;
294 (vii) Section 76-5-308.5, human trafficking of a child for labor;
295 (viii) Section 76-5-310, aggravated human trafficking;
296 (ix) Section 76-5-310.1, aggravated human smuggling;
297 (x) Section 76-5-311, human trafficking of a vulnerable adult for labor; or
298 (xi) attempting, soliciting, or conspiring to commit any felony offense listed in
299 Subsections (10)(a)(i) through (x);
300 (b) (i) who has been convicted of any crime, or an attempt, solicitation, or conspiracy
301 to commit a crime in another jurisdiction, including any state, federal, or military court that is
302 substantially equivalent to the offenses listed in Subsection (10)(a); and
303 (ii) who is:
304 (A) a Utah resident; or
305 (B) not a Utah resident, but who, in any 12-month period, is in this state for a total of
306 10 or more days, regardless of whether or not the offender intends to permanently reside in this
307 state;
308 (c) (i) (A) who is required to register as a kidnap offender in any other jurisdiction of
309 original conviction;
310 (B) who is required to register as a kidnap offender by any state, federal, or military
311 court; or
312 (C) who would be required to register as a kidnap offender if residing in the
313 jurisdiction of the conviction regardless of the date of the conviction or any previous
314 registration requirements; and
315 (ii) in any 12-month period, who is in this state for a total of 10 or more days,
316 regardless of whether or not the offender intends to permanently reside in this state;
317 (d) (i) (A) who is a nonresident regularly employed or working in this state; or
318 (B) who is a student in this state; and
319 (ii) (A) who was convicted of one or more offenses listed in this Subsection (10), or
320 any substantially equivalent offense in another jurisdiction; or
321 (B) as a result of the conviction, who is required to register in the individual's state of
322 residence;
323 (e) who is found not guilty by reason of insanity in this state or in any other jurisdiction
324 of one or more offenses listed in this Subsection (10); or
325 (f) (i) who is adjudicated under Section 80-6-701 for one or more offenses listed in
326 Subsection (10)(a); and
327 (ii) who has been committed to the division for secure care, as defined in Section
328 80-1-102, for that offense if:
329 (A) the individual remains in the division's custody until 30 days before the individual's
330 21st birthday;
331 (B) the juvenile court extended the juvenile court's jurisdiction over the individual
332 under Section 80-6-605 and the individual remains in the division's custody until 30 days
333 before the individual's 25th birthday; or
334 (C) the individual is moved from the division's custody to the custody of the
335 department before expiration of the division's jurisdiction over the individual.
336 (11) "Natural parent" means a minor's biological or adoptive parent, and includes the
337 minor's noncustodial parent.
338 (12) "Offender" means a kidnap offender as defined in Subsection (10) or a sex
339 offender as defined in Subsection (18).
340 (13) "Online identifier" or "Internet identifier":
341 (a) means any electronic mail, chat, instant messenger, social networking, or similar
342 name used for Internet communication; and
343 (b) does not include date of birth, social security number, PIN number, or Internet
344 passwords.
345 (14) "Primary residence" means the location where the offender regularly resides, even
346 if the offender intends to move to another location or return to another location at any future
347 date.
348 (15) "Register" means to comply with the requirements of this chapter and
349 administrative rules of the department made under this chapter.
350 (16) "Registration website" means the Sex and Kidnap Offender Notification and
351 Registration website described in Section 77-41-110 and the information on the website.
352 (17) "Secondary residence" means any real property that the offender owns or has a
353 financial interest in, or any location where, in any 12-month period, the offender stays
354 overnight a total of 10 or more nights when not staying at the offender's primary residence.
355 (18) "Sex offender" means any individual:
356 (a) convicted in this state of:
357 (i) a felony or class A misdemeanor violation of Section 76-4-401, enticing a minor;
358 (ii) Section 76-5b-202, sexual exploitation of a vulnerable adult;
359 (iii) Section 76-5-308.1, human trafficking for sexual exploitation;
360 (iv) Section 76-5-308.5, human trafficking of a child for sexual exploitation;
361 (v) Section 76-5-310, aggravated human trafficking for sexual exploitation;
362 (vi) Section 76-5-311, human trafficking of a vulnerable adult for sexual exploitation;
363 (vii) Section 76-5-401, unlawful sexual activity with a minor, except as provided in
364 Subsection 76-5-401(3)(b) or (c);
365 (viii) Section 76-5-401.1, sexual abuse of a minor, except as provided in Subsection
366 76-5-401.1(3);
367 (ix) Section 76-5-401.2, unlawful sexual conduct with a 16 or 17 year old;
368 (x) Section 76-5-402, rape;
369 (xi) Section 76-5-402.1, rape of a child;
370 (xii) Section 76-5-402.2, object rape;
371 (xiii) Section 76-5-402.3, object rape of a child;
372 (xiv) a felony violation of Section 76-5-403, forcible sodomy;
373 (xv) Section 76-5-403.1, sodomy on a child;
374 (xvi) Section 76-5-404, forcible sexual abuse;
375 (xvii) Section 76-5-404.1, sexual abuse of a child, or Section 76-5-404.3, aggravated
376 sexual abuse of a child;
377 (xviii) Section 76-5-405, aggravated sexual assault;
378 (xix) Section 76-5-406.1, sexual conduct without affirmative consent, if the individual
379 was 18 years old or older at the time of the offense;
380 [
381 custody is younger than 18 years old, if the offense is committed on or after May 10, 2011;
382 [
383 [
384 [
385 [
386 [
387 offense four or more times;
388 [
389 of the offense four or more times;
390 [
391 Section 76-9-702.1, sexual battery, that total four or more convictions;
392 [
393 [
394 voyeurism;
395 [
396 [
397 in this Subsection (18)(a);
398 (b) (i) who has been convicted of any crime, or an attempt, solicitation, or conspiracy
399 to commit a crime in another jurisdiction, including any state, federal, or military court that is
400 substantially equivalent to the offenses listed in Subsection (18)(a); and
401 (ii) who is:
402 (A) a Utah resident; or
403 (B) not a Utah resident, but who, in any 12-month period, is in this state for a total of
404 10 or more days, regardless of whether the offender intends to permanently reside in this state;
405 (c) (i) (A) who is required to register as a sex offender in any other jurisdiction of
406 original conviction;
407 (B) who is required to register as a sex offender by any state, federal, or military court;
408 or
409 (C) who would be required to register as a sex offender if residing in the jurisdiction of
410 the original conviction regardless of the date of the conviction or any previous registration
411 requirements; and
412 (ii) who, in any 12-month period, is in the state for a total of 10 or more days,
413 regardless of whether or not the offender intends to permanently reside in this state;
414 (d) (i) (A) who is a nonresident regularly employed or working in this state; or
415 (B) who is a student in this state; and
416 (ii) (A) who was convicted of one or more offenses listed in Subsection (18)(a), or any
417 substantially equivalent offense in any jurisdiction; or
418 (B) who is, as a result of the conviction, required to register in the individual's
419 jurisdiction of residence;
420 (e) who is found not guilty by reason of insanity in this state, or in any other
421 jurisdiction of one or more offenses listed in Subsection (18)(a); or
422 (f) (i) who is adjudicated under Section 80-6-701 for one or more offenses listed in
423 Subsection (18)(a); and
424 (ii) who has been committed to the division for secure care, as defined in Section
425 80-1-102, for that offense if:
426 (A) the individual remains in the division's custody until 30 days before the individual's
427 21st birthday;
428 (B) the juvenile court extended the juvenile court's jurisdiction over the individual
429 under Section 80-6-605 and the individual remains in the division's custody until 30 days
430 before the individual's 25th birthday; or
431 (C) the individual is moved from the division's custody to the custody of the
432 department before expiration of the division's jurisdiction over the individual.
433 (19) "Traffic offense" does not include a violation of Title 41, Chapter 6a, Part 5,
434 Driving Under the Influence and Reckless Driving.
435 (20) "Vehicle" means any motor vehicle, aircraft, or watercraft subject to registration in
436 any jurisdiction.
437 Section 4. Effective date.
438 (1) Except as provided in Subsection (2), this bill takes effect on May 1, 2024.
439 (2) The actions affecting Section 77-41-102 (Effective 07/01/24) take effect on July 1,
440 2024.