76-5-413.2. Custodial sexual misconduct with a youth receiving state services -- Penalties -- Defenses and limitations.
(1) As used in this section: "Actor" means the same as that term is defined in Section. 76-5-413 "Department" means the same as that term is defined in Section. 76-5-413 "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 "Juvenile court" means the same as that term is defined in Section. 76-5-413 "Private provider or contractor" means the same as that term is defined in Section. 76-5-413 "Youth receiving state services" means the same as that term is defined in Section. 76-5-413 Terms defined in Sectionapply to this section. 76-1-101.5
(2) Under circumstances not amounting to an offense listed in Subsection, an actor commits custodial sexual misconduct with a youth receiving state services if: (4) the actor commits any of the acts described in Subsection; and (2)(b) 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 Subsectionare the following acts when committed 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: (2)(a) touching the anus, buttocks, pubic area, or any part of the genitals of a youth receiving state services; touching the female breast of a youth receiving state services; or otherwise taking indecent liberties with a youth receiving state services. 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 class A misdemeanor. (2) Notwithstanding Subsection, if the youth receiving state services 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) The offenses referred to in Subsectionare: (2) 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 Subsectionsthrough. (4)(a) (4)(k)
(5) It is not a defense to the commission of, or an attempt to commit, the offense described in Subsectionif the youth receiving state services is younger than 18 years old, that the actor: (2) 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 Subsectionis the result of compulsion, as the defense is described in Subsection. (2) 76-2-302(1)