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Utah Cohabitant Abuse Act - Criminal Defense Attorney

Challenging the Enhanced Penalties of the Utah Cohabitant Abuse Act for Unconstitutional Overbreadth

The term “cohabitant” as used in the Utah Cohabitant Abuse Act is defined in very broad terms. In the case of State v. Salt, 2015 UT App 72, the defendant challenged this statutory definition as being unconstitutionally overbroad.

If you are facing prosecution for domestic violence or other crimes, it is important to have the assistance of an experienced criminal defense attorney. Contact us today to arrange for an initial consultation with Utah criminal lawyer Stephen Howard.

Unconstitutional Statutory Overbreadth

The Utah Court of Appeals has held that a statute is unconstitutionally overbroad where it criminalizes “both harmful and innocuous behavior.” Salt Lake City v. Lopez, 935 P.2d 1259 (Utah App. 1997). To succeed in challenging the overbreadth of a statute, a defendant must show that the statute “renders unlawful a substantial amount of constitutionally protected conduct.” Id. More specifically, Utah’s appellate courts have recognized the overbreadth doctrine only in the context of conduct that is protected under the First Amendment. Id.

Analysis by the Utah Court of Appeals

In State v. Salt, 2015 UT App 72, the defendant argued that the Utah Cohabitant Abuse Act violated his rights of free association under the First Amendment. Although the text of the First Amendment does not explicitly mention the right of “freedom of association,” courts have recognized that the right of free association is implicit in its language. The defendant argued that the statute criminalized otherwise innocent behavior, by punishing his prior choice to reside with the victim.

The court in Salt disagreed with the defendant’s analysis. The court reasoned that the Utah Cohabitant Abuse Act does not penalize a person’s choice to reside with another person, but instead only prohibits violent or otherwise criminal conduct against a cohabitant. The court noted that “violence and threats of violence” against a cohabitant are not the kind of “expression” that the First Amendment freedom of association is intended to protect.

The decision from the Court of Appeals in Salt is binding on district courts and justice courts in Utah. However, its reasoning and holding could  be overruled in the future by the Utah Supreme Court in a future appeal.

One concern that has been raised with the overbreadth analysis in the Salt decision is its focus on the criminalization of “violence” or “threats of violence.” It must be recognized that the criminalization of violent conduct is  nearly universal. But the Utah Cohabitant Abuse Act creates enhanced penalties that are not based on the degree or nature of the violent act committed, but can instead be based on the defendant’s prior associations with the victim. A successful overturning of the Salt decision would need to focus on the punishment imposed for the prior choice to associate with (by residing with) the victim.

Punishments already exist for violent offenses such as assault, criminal mischief, unlawful detention, kidnapping, etc. The severity of these penalties is based typically on the degree of injury inflicted, the value of damages done, the use of a weapon, the length of the detention, etc.

But the enhanced punishments under the Utah Cohabitant Abuse Act are based not on the nature or severity of the defendant’s conduct. Instead, the enhanced punishments can be based entirely on the defendant’s prior choice to associate with the victim in a domestic relationship.

Other information about potential constitutional challenges to the enhanced penalties under the Utah Cohabitant Abuse Act can be found on the following pages.

- Unconstitutional Vagueness
- Equal Protection Violations

Finding a Utah Criminal Defense Attorney for Domestic Violence

Salt Lake Criminal Defense LawyerA prosecution for domestic violence charges can result in serious consequences. If you are facing charges for a domestic violence offense or other crime, the assistance of an experienced criminal defense attorney can be vital. Contact us now for an initial confidential consultation with Utah criminal lawyer Stephen Howard.


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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.

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

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