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Utah Cohabitant Abuse Act Defense Attorney

The constitutionality of the “cohabitant” penalties was unsuccessfully challenged in the Utah Court of Appeals case of State v. Salt, 2015 UT App 72, on grounds of vagueness and overbreadth. But a potential alternate challenge on grounds of equal protection was not raised by the defense in that appeal, and thus not addressed by the court.

If you are facing prosecution for domestic violence under the Utah Cohabitant Abuse Act, or other criminal charges, the assistance of an experienced criminal defense lawyer is vital. Contact us now to arrange for an initial confidential consultation with criminal attorney Stephen Howard.

Equal Protection - Challenging the Constitutionality of Utah’s Domestic Violence Enhanced Penalties

Equal Protection Challenge to the Utah Cohabitant Abuse Act

Under a equal protection analysis, a statute will be presumed to be constitutionally valid when the classification created by the statute is “rationally related to a legitimate state interest.” Lawrence v. Texas, 539 U.S. 558 (2003). The Utah Cohabitant Abuse Act creates two classes of individuals: those who are “cohabitants” and therefore subject to harsher penalties; and those who are not “cohabitants” and therefore subject to less severe penalties.

Definition and Class Creation

The Utah Cohabitant Abuse Act provides a sweeping definition for the term “cohabitant” as it applies to certain domestic violence crimes. This definition includes people who are related by blood or by marriage, as well as people who have chosen to live in the “same residence.” The “same residence” prong of the cohabitant definition can be applied without regard to the existence (or nonexistence) of any romantic or intimate relationship. The “same residence” prong of the definition can also be applied even after the two people no longer reside together - without any time limitation.

Thus, by punishing individuals who have previously shared a residence more harshly than individuals have not, the Utah Cohabitant Abuse Act creates two classes of individuals. To justify this disparate treatment of the two classes, the law must be shown to serve some legitimate government interest.

Legitimate State Interest

In Salt, the Utah Court of Appeals opined that “the Cohabitant Abuse Act is designed to promote the value of the relationships the act encompasses by discouraging physical violence in such relationships.” The court noted that the broad definition of the term “cohabitant” could “theoretically bring within its reach such attenuated relationships as, for example, former roommates,” and acknowledged that this “may raise questions of policy. . . .” But the court did not address the issue of a possible equal protection violation.

The Court of Appeals acknowledged in Salt that the “cohabitant” definition can cover relationships that are so “attenuated” that “questions of policy” are implicated by the application of the cohabitant enhancements. Public policy questions are generally avoided by the courts, on the theory that such matters are better left to the legislature. Under an equal protection challenge to the statute, the defendant must show that “no legitimate state interest” is served by the classification that is created by the statute. But because no equal protection challenge was made by the defendant in Salt, the court did not address the question of whether such relationships can become so “attenuated” that the statute no longer serves any legitimate state interest.

Consider, for example, the hypothetical example of two former college roommates who bump into each other in a bar, twenty years after they both graduated from college. Imagine these two former roommates getting drunk, getting in an argument, and one getting pushed to the ground by the other. Police are called, an arrest is made, and a charge of assault is filed.

In such a situation, the crime of assault has been committed. If the two individuals had been strangers, standard jail time and other penalties would apply; but there would be no “cohabitant” enhancement. Since the two individuals are former roommates, the standard jail time and other penalties can still apply; but the charges and penalties can also be enhanced under the Utah Cohabitant Abuse Act.

The relevant question under an equal protection challenge to the statute is whether any “legitimate state interest” is served by punishing the defendant more harshly simply because he had at one time (more than twenty years earlier) shared a college dorm room with the victim. Has the relationship become so “attenuated” that the relationship is no longer one which the state has a legitimate interest in promoting? This is a question that remains unanswered in the Utah courts and one which may provide grounds for challenging the constitutionality of the Utah Cohabitant Abuse Act.

Other Possible Constitutional Challenges to the Utah Cohabitant Abuse Act Enhanced Penalties

- Unconstitutional Vagueness
- Unconstitutional Overbreadth

Finding a Utah Criminal Defense Attorney in Salt Lake City

Salt Lake Criminal Defense LawyerIf you are facing prosecution for domestic violence or other criminal charges, the assistance of an experienced criminal lawyer is critical. Mr. Howard has successfully assisted clients facing charges ranging from homicide to minor misdemeanors, and virtually everything in between. Contact us now to arrange for an initial confidential consultation.


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  • Criminal Defense Trial AttorneyNot Guilty - Client was charged with aggravated assault for allegedly pointing handgun at and threatening another driver during a road rage incident. Defense investigation and analysis, combined with effective cross-examination at trial indicated the alleged victim was the initial aggressor and suported client's self-defense claim. Jury acquitted client at trial.
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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

Call now to arrange for a confidential initial consultation with an experienced and effective Utah criminal defense lawyer.

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

Stephen W. Howard, PC

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