76-5-412.2. Custodial sexual misconduct -- Penalties -- Defenses.
(1) As used in this section: "Actor" means the same as that term is defined in Section. 76-5-412 "Female breast" means the same as that term is defined in Section. 76-5-401.1 "Indecent liberties" means the same as that term is defined in Section. 76-5-401.1 "Person in custody" means the same as that term is defined in Section. 76-5-412 "Private provider or contractor" means the same as that term is defined in Section. 76-5-412 Terms defined in Sectionapply to this section. 76-1-101.5
(2) An actor commits custodial sexual misconduct if: the actor commits any of the acts under Subsectionunder circumstances not amounting to commission of, or an attempt to commit, an offense under Subsection; and (2)(b) 76-5-412(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 the following acts when committed with the intent to cause substantial emotional or bodily pain to another individual or with the intent to arouse or gratify the sexual desire of any individual: (2)(a) touching the anus, buttocks, pubic area, or any part of the genitals of a person in custody; touching the female breast of a person in custody; or otherwise taking indecent liberties with a person in custody.
(3) A violation of Subsectionis a class A misdemeanor. (2) Notwithstanding Subsection, if the person in custody is younger than 18 years old, a violation of Subsectionis a third 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. (2) (3) (3)
(4) It is not a defense to the commission of, or attempt to commit, the offense described in 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)
(5) 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)