Section 76-5-413.2 - Custodial sexual misconduct with a youth receiving state services -Penalties - Defenses and limitations(1)(a) As used in this section: (i) "Actor" means the same as that term is defined in Section 76-5-413.(ii) "Department" means the same as that term is defined in Section 76-5-413.(iii) "Indecent liberties" means the same as that term is defined in Section 76-5-401.1.(iv) "Juvenile court" means the same as that term is defined in Section 76-5-413.(v) "Private provider or contractor" means the same as that term is defined in Section 76-5-413.(vi) "Youth receiving state services" means the same as that term is defined in Section 76-5-413.(b) Terms defined in Section 76-1-101.5 apply to this section.(2)(a) Under circumstances not amounting to an offense listed in Subsection (4), an actor commits custodial sexual misconduct with a youth receiving state services if:(i) the actor commits any of the acts described in Subsection (2)(b); and(ii)(A) the actor knows that the individual is a youth receiving state services; or(B) a reasonable person in the actor's position should have known under the circumstances that the individual was a youth receiving state services.(b) Acts referred to in Subsection (2)(a) are 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: (i) touching the anus, buttocks, pubic area, or any part of the genitals of a youth receiving state services;(ii) touching the breast of a female youth receiving state services; or(iii) otherwise taking indecent liberties with a youth receiving state services.(c) Any touching, even if accomplished through clothing, is sufficient to constitute the relevant element of a violation of Subsection (2)(a).(3)(a) A violation of Subsection (2) is a class A misdemeanor.(b) Notwithstanding Subsection (3)(a), if the youth receiving state services is younger than 18 years old, a violation of Subsection (2) is a third degree felony.(c) 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:(a) unlawful sexual activity with a minor, in violation of Section 76-5-401;(b) rape, in violation of Section 76-5-402;(c) rape of a child, in violation of Section 76-5-402.1;(d) object rape, in violation of Section 76-5-402.2;(e) object rape of a child, in violation of Section 76-5-402.3;(f) forcible sodomy, in violation of Section 76-5-403;(g) sodomy on a child, in violation of Section 76-5-403.1;(h) forcible sexual abuse, in violation of Section 76-5-404;(i) sexual abuse of a child, in violation of Section 76-5-404.1;(j) aggravated sexual abuse of a child, in violation of Section 76-5-404.3;(k) aggravated sexual assault, in violation of Section 76-5-405; or(l) an attempt to commit an offense listed in Subsections (4)(a) through (4)(k).(5)(a) 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: (i) mistakenly believed the youth receiving state services to be 18 years old or older at the time of the alleged offense; or(ii) was unaware of the true age of the youth receiving state services.(b) 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).Added by Chapter 181, 2022 General Session ,§ 97, eff. 5/4/2022.