76-5-413. Custodial sexual relations with youth receiving state services -- Penalties -- Defenses and limitations.
(1) As used in this section: "Actor" means: an individual employed by the Department of Health and Human Services created in Section, or an employee of a private provider or contractor; or 26B-1-201 an individual employed by the juvenile court of the state, or an employee of a private provider or contractor. "Department" means the Department of Health and Human Services created in Section. 26B-1-201 "Juvenile court" means the juvenile court of the state created in Section. 78A-6-102 "Private provider or contractor" means a person that contracts with the: department to provide services or functions that are part of the operation of the department; or juvenile court to provide services or functions that are part of the operation of the juvenile court. "Youth receiving state services" means an individual: younger than 18 years old, except as provided under Subsection (1)(a)(v)(B), who is: in the custody of the department under Section; or 80-6-703 receiving services from any division of the department if any portion of the costs of these services is covered by public money; or younger than 25 years old: who is in the custody of the Division of Juvenile Justice and Youth Services, or the Division of Child and Family Services; or whose case is under the jurisdiction of the juvenile court. Terms defined in Sectionapply to this section. 76-1-101.5
(2) Under circumstances not amounting to an offense listed in Subsection (4), an actor commits custodial sexual relations with a youth receiving state services if: the actor commits any of the acts described in Subsection (2)(b); and the actor knows that the individual is a youth receiving state services; or a reasonable person in the actor's position should have known under the circumstances that the individual was a youth receiving state services. Acts referred to in Subsection (2)(a)(i) are: having sexual intercourse with a youth receiving state services; engaging in any sexual act with a youth receiving state services 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 youth receiving state services by any foreign object, substance, instrument, or device, including a part of the human body; and with the intent to cause substantial emotional or bodily pain to any individual or with the intent to arouse or gratify the sexual desire of 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 Subsection (2) is a third degree felony. Notwithstanding Subsection (3)(a), if the youth receiving state services is younger than 18 years old, a violation of Subsection (2) is a second degree felony. If the act committed under Subsection (2) amounts to an offense subject to a greater penalty under another provision of state law than is provided under this Subsection (3), this Subsection (3) does not prohibit prosecution and sentencing for the more serious offense.
(4) The offenses referred to in Subsection (2) are: unlawful sexual activity with a minor, in violation of Section; 76-5-401 rape, in violation of Section; 76-5-402 rape of a child, in violation of Section; 76-5-402.1 object rape, in violation of Section; 76-5-402.2 object rape of a child, in violation of Section; 76-5-402.3 forcible sodomy, in violation of Section; 76-5-403 sodomy on a child, in violation of Section; 76-5-403.1 forcible sexual abuse, in violation of Section; 76-5-404 sexual abuse of a child, in violation of Section; 76-5-404.1 aggravated sexual abuse of a child, in violation of Section; 76-5-404.3 aggravated sexual assault, in violation of Section; or 76-5-405 an attempt to commit an offense listed in Subsections (4)(a) through (4)(k).
(5) It is not a defense to the commission of, or an attempt to commit, the offense described in Subsection (2) if the youth receiving state services is younger than 18 years old, that the actor: mistakenly believed the youth receiving state services to be 18 years old or older at the time of the alleged offense; or was unaware of the true age of the youth receiving state services. Consent of the youth receiving state services 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 Subsection (2) is the result of compulsion, as the defense is described in Subsection. 76-2-302(1)