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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

Criminal Defense Lawyer Salt Lake CityThe 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 Charges
Utah Code 76-2-304 - Mistake of Fact and Ignorance of Law Defenses
More Utah Criminal Code Provisions


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Serving Salt Lake, Davis, Weber, Utah, Cache, Tooele, Summit, Box Elder, and Wasatch Counties, and all of Utah.

Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

Offices in Salt Lake and Davis Counties
560 South 300 East, Suite 200, Salt Lake City, UT 84111
952 S. Main St., Suite A, Layton, UT 84041

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In Salt Lake City, call 801-449-1409.
In Davis County, call 801-923-4345.

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