Utah Criminal Defense - Salt Lake Criminal Attorney
76-2-304.5 - Mistake of Age of Minor Victim - Not a
Defense
As a general rule, Utah Code 76-2-304 provides that a mistake of fact
that negates the required mental state of a crime can serve as a
complete defense to prosecution. But this general rule has certain
exceptions, established by Utah Code 76-2-304.5. Under this section of
the Utah criminal code, a defendant's mistake as to the age of the
victim is not a defense to certain specified crimes involving minor
children as victims.
Most
of crimes
listed in Utah Code 76-2-304.5 involve sex-related crimes (sometimes
referred to as "statutory rape"), kidnapping, or other similar
offenses. All of the listed offenses are serious criminal charges. If you are facing
prosecution for an offense listed under this section, you are strongly
encouraged to seek the assistance of an
experienced Utah criminal
defense attorney.
Based
in Salt Lake City,
criminal lawyer Stephen Howard provides legal
services to clients throughout Utah.
Contact us today to arrange for a
confidential consultation.
Mistake of Age and Strict Liability
Utah's
appellate courts have interpreted Utah Code 76-2-304.5 as essentially
imposing strict liability as to the element of a defendant's mental
intent regarding the age of a minor victim. While the law is stated in
language indicating that mistake of age is "not a defense" to
the
crime, the courts have interpreted the legislative purpose in enacting
the statute as eliminating the intent element and imposing strict
liability with regard to age.
Under most ordinary criminal
statutes, where no mental intent is specifically stated in the statute
defining the crime, Utah Code
76-2-102 requires a minimum culpability
level of at least "recklessness" before criminal penalties can be
imposed. However, for the crimes listed in Utah Code 76-2-304.5, the
courts have held that the prosecutor is not required to present
evidence that the defendant knew the victim's true age, or even that
the defendant acted recklessly with regard to the minor's actual age.
Under
these principles of strict liability, the prosecutor is only required
to present evidence of the minor victim's true age at the time of the
offense. Evidence suggesting that the minor appeared to be older than
his or her true age is generally considered to be irrelevant for the
crimes listed in this section. Even if the minor victim appeared
physically to be much older than his or her true age, even if the minor
had an apparently valid government-issued ID indicating an age of 18 or
21, even if the minor victim's own parents personally misrepresented to
the defendant the true age of the minor victim, etc., a defendant can
still be convicted of the crimes listed under this statute if the
conduct alleged is found to have been committed. The defendant's
knowledge or belief regarding the victim's age - and any reasonable
basis for such a belief - are considered to be irrelevant under
principles of strict liability.
Note that some of these offenses
include sexual conduct that may be "factually" considered to be
consensual, even though Utah law may not legally allow a child or minor
to consent to sexual activity. These offenses include offenses that are
commonly referred to as "statutory rape."
Younger than 14 Years of Age - Mistake of Age is No Defense
The
following crimes are listed in Utah Code 76-2-304.5 as offenses
(including an attempt to commit) for which mistake of age is not
offense, where the minor victim is younger than 14 years of age:
- Child Kidnapping - 76-5-301.1
- Rape of a Child - 76-5-402.1
- Object Rape of a Child - 76-5-402.3
- Sodomy on a Child - 76-5-403.1
- Sexual Abuse of a Child - 76-5-404.1
- Aggravated Sexual Abuse of a Child - 76-5-404.1(4)
Younger than 16 Years of Age - No Defense for Mistake of Age
Utah
Code 76-2-304.5 lists the following crimes (or any attempt to commit)
for which there is no defense based on mistake or ignorance of a minor
victim's age where the victim is younger than 16 years of age:
- Unlawful Sexual Activity with a Minor - Utah Code 76-5-401
- Sexual Abuse of a Minor - Utah Code 76-5-401.1
Younger than 18 Years of Age - Mistake of Age is Not a Defense
Under
Utah Code 76-2-304.5, there is no defense based on mistake of age to
the following offenses (or an attempt to commit the offense) where the
minor victim is younger than 18 years of age:
- Unlawful Sexual Activity with a Minor - Utah Code
76-5-401.2(2)(a)(ii)
- Patronizing a Prostitute - Utah Code 76-10-1303
- Aggravated Exploitation of a Prostitute - Utah Code
76-10-1306
- Sexual Solicitation - Utah Code 76-10-1313
Choosing a Utah Criminal Defense Attorney in Salt
Lake City

The
offenses listed in Utah Code 76-2-304.5 include serious felony charges,
some of which can be punished with life in prison. If you are facing
criminal prosecution for one of these offenses, whether or not a
mistake of age is involved, the assistance of an experienced criminal
defense attorney can be critical.
Utah
criminal lawyer Stephen
Howard has successfully protected his clients' rights in some of the
most serious criminal charges on the books in Utah. Based in Salt Lake
City, Mr. Howard offers legal services to clients throughout Utah.
Contact us today to arrange
for an initial confidential consultation.
RELATED CRIMINAL CODE SECTIONS
Utah
Code
76-2-101 - Intent Elements of Criminal ChargesUtah Code 76-2-304 - Mistake of Fact and Ignorance of Law Defenses
More Utah Criminal
Code Provisions