76-5-412. Custodial sexual relations -- Penalties -- Defenses and limitations.
(1) As used in this section: "Actor" means: a law enforcement officer, as defined in Section; 53-13-103 a correctional officer, as defined in Section; 53-13-104 a special function officer, as defined in Section; or 53-13-105 an employee of, or private provider or contractor for, the Department of Corrections or a county jail. "Indecent liberties" means the same as that term is defined in Section. 76-5-401.1 "Person in custody" means an individual, either an adult 18 years old or older, or a minor younger than 18 years old, who is: a prisoner, as defined in Section, and includes a prisoner who is in the custody of the Department of Corrections created under Section, but who is being housed at the Utah State Hospital established under Sectionor other medical facility; 76-5-101 64-13-2 26B-5-302 under correctional supervision, such as at a work release facility or as a parolee or probationer; or under lawful or unlawful arrest, either with or without a warrant. "Private provider or contractor" means a person that contracts or enters into a memorandum of understanding with a governmental or private entity to provide services or functions that are part of the operation of the Department of Corrections or a county jail under state or local law. Terms defined in Sectionapply to this section. 76-1-101.5
(2) An actor commits custodial sexual relations if the actor commits any of the acts under Subsection: (2)(b) under circumstances not amounting to commission of, or an attempt to commit, an offense under Subsection; and (4) the actor knows that the individual is a person in custody; or a reasonable person in the actor's position should have known under the circumstances that the individual was a person in custody. Acts referred to in Subsectionare: (2)(a) having sexual intercourse with a person in custody; engaging in a sexual act with a person in custody involving the genitals of one individual and the mouth or anus of another individual; or causing the penetration, however slight, of the genital or anal opening of a person in custody by any foreign object, substance, instrument, or device, including a part of the human body; and intending to cause substantial emotional or bodily pain to any individual. Any touching, even if accomplished through clothing, is sufficient to constitute the relevant element of a violation of Subsection. (2)(a)
(3) A violation of Subsectionis a third degree felony. (2) Notwithstanding Subsection, if the person in custody is younger than 18 years old, a violation of Subsectionis a second degree felony. (3)(a) (2) If the act committed under Subsectionamounts to an offense subject to a greater penalty under another provision of state law than is provided under this Subsection, this Subsectiondoes not prohibit prosecution and sentencing for the more serious offense. (3) (3) (3)
(4) The offenses referred to in Subsectionand Subsectionare: (2)(a)(i) 76-5-412.2(2)(a)(i) Section, unlawful sexual activity with a minor; 76-5-401 Section, rape; 76-5-402 Section, rape of a child; 76-5-402.1 Section, object rape; 76-5-402.2 Section, object rape of a child; 76-5-402.3 Section, forcible sodomy; 76-5-403 Section, sodomy on a child; 76-5-403.1 Section, forcible sexual abuse; 76-5-404 Section, sexual abuse of a child, or Section, aggravated sexual abuse of a child; or 76-5-404.1 76-5-404.3 Section, aggravated sexual assault. 76-5-405
(5) It is not a defense to the commission of, or the attempt to commit, the offense of custodial sexual relations under Subsectionif the person in custody is younger than 18 years old, that the actor: (2) mistakenly believed the person in custody to be 18 years old or older at the time of the alleged offense; or was unaware of the true age of the person in custody. Consent of the person in custody is not a defense to any violation or attempted violation of Subsection. (2)
(6) It is a defense that the commission by the actor of an act under Subsectionis the result of compulsion, as the defense is described in Subsection. (2) 76-2-302(1)