Understanding Consent Laws In Utah: A Complete Guide

An Overview Of Utah’s Consent Laws

Literally speaking, "consent" means to agree to do or allow something. In the legal sense, "consent" has a slightly different meaning. While in most normal circumstances, giving consent means agreeing to do, allowing, or approving of an action, in Utah consent laws control over the matter at hand. In Utah, consent is more than an agreement; it is the permission that makes something legal.
Consent laws in Utah are in place for the simple fact that there can be civil and criminal charges and implications if a statute of limitations is violated. Consent laws regulate how, when, where, and for how long a person can consent to something. Utah has reasonable consent laws in place to help protect citizens from being victimized .
A perfect example of consent laws is that, by law, a person is unable to consent before they reach the age of eighteen in the state of Utah. For this reason, consent laws play a big role in these types of cases:
For example, by law, a person under the age of 18 is unable to consent to sexual relations that result in pregnancy; therefore, a person in this category cannot give legal consent. Thus, the intercourse or sexual contact may still meet the elements of a sexual crime and could result in charges being filed, if the statute of limitations hasn’t run out.
In other words, even if 5 or 10 years pass and that person is now 23 or 28 years old, they can still file charges, unless, again, the family or personal injury civil suit statute of limitations has run out.

Age Of Consent In Utah

The legal age of consent in Utah is 18 years old. This means that if both individuals involved are 18 years of age or older, then consent is not a concern. However, if one of the parties in question is under 18 years of age, the "Romeo and Juliet" laws are similar to surrounding states, in that courts look for a gap of three years or less between parties under 18 years of age when pursuing charges of sexual misconduct.
For example, if there is a 17 year old and an age-appropriate party, the 17 year old consents to the relationship, and the two have engaged in sexual activities, there is a lower risk of prosecution. However, consent is a gray area, so regardless of age, always make sure you have explicit consent before engaging in sexual activities of any kind.
Exemptions may include individuals that are not more than 3 years younger than the other party. For example, a 19-year-old dating a 16-year-old are in line with exemptions set before them by the law. However, if the older party was a teacher, then regardless of the victim’s age or consent, it would be against the law.
Differences in laws between Utah and surrounding states are very similar to the exceptions given to perpetrators. Around Utah, Nevada, Idaho, Colorado, and Arizona all have similar laws when it comes to the legal age of consent.

Forms Of Consent In Utah

In Utah, there are three different types of consent recognized: implied, expressed, and informed. The first is implied consent, which can be observed when you are pulled over and the police officer states that you are under arrest. Utah law states that by under by driving on a Utah road, you are giving consent to any test of unlawful alcohol content. Deemed an implied consent statute, the police officer that stops you has the right to take your blood, breath, or urine without first obtaining a signature. However, if you refuse such a test, you will incur penalties.
Expressed consent is written consent. In the event of a medical emergency, a person’s inability to give their expressed consent for treatment or procedures does not mean that the medical professional will not proceed with treatment. Implied consent covers those situations where it appears that the person would have given his or her consent to a procedure.
Informed consent is a little different. The most important thing is that the medical professional informs the patient of what the procedure is about. This includes risks, benefits, and alternatives to the procedure. The Patient Bill of Rights requires all physicians to obtain informed consent before proceeding with medical treatment of any kind. An informed patient is a protected patient.

Consent To Medical Procedures

In Utah, consent is not only a common law doctrine but also codified by the Utah Medical Consent Act, which provides explicit statutory rights for patients and their health care decisions. See Utah Code Ann. § 75-5-101 to -502 (2016). The current consent provisions of the Utah Criminal Code have been in effect since 1978. Kaneko v. Farmers Ins. Exch. & Interins. Bureau, 2004 UT 40, ¶ 45, 94 P.3d 853. Utah is one of only a minority of states to have enacted such specific and far-reaching laws in regard to medical consent. Id. "The primary purpose in enacting the Utah Medical Consent Act was ‘to establish by statute the effect of a patient’s consent to a medical procedure … and to extend the act’s provisions to the realm of non-operative treatment procedures.’" Id. (quoting Utah Code Ann. § 75-5-102 Advisory Committee Notes).
While the judicial system has regularly resolved consent questions in the criminal, special needs, and medical contexts for more than a hundred years, in Utah, the law regarding informed consent for medical treatments began to take shape with the adoption of the Utah Medical Consent Act. Kaneko, 2004 UT 40, ¶ 45. The Act was eventually amended in 1981, when the Utah State Legislature added two sections, which it deemed to be mandatory. Id. Those sections provided that "all medically appropriate methods should be utilized to obtain informed consent and that consent is not necessary when a patient’s advance directive clearly and explicitly denies consent to resuscitation, intubation, or hospital transfer or that information could jeopardize the patient’s health." Id. (emphasis added). In addition to these new amendments, the Utah Medical Consent Act also removed subsections discussing when consent or authorization would not be applicable, e.g., if the patient were unconscious and needed emergency medical treatment. Id. at n.10.
Section 409 has been the subject of much discussion over the last few decades, so we will summarize its important provisions here. Under Section 409, consent is not required when a patient is unconscious and in need of a medical treatment that a reasonable person would consent to if not unconscious. Utah Code Ann. § 20-9-409(1)(A). That is, when a person is unconscious and incapable of consenting, the physician in control of the patient’s treatment may administer the treatment as if the patient had consented. Id. The next subsection, which contains the relevant language, explains that "[r]esuscitation or advanced cardiac life support as defined in the state Emergency Medical Services System Act need not conform to the procedure governed by Subsection (1)(A) if it is contrary to the individual’s previously expressed wishes, directives, or instructions." Utah Code Ann. § 20-9-409(1)(B).
Furthermore, the section goes on to state that "[a] court order or a properly executed advance directive as described in the Patient Self-Determination Act (PSDA) may determine whether or not such person shall be treated in accordance with Subsections (1)(A) and (B)" (see subsection 2 below). Utah Code Ann. § 20-9-409(2). Finally, Utah Code Ann. § 20-9-409(3) recognizes the right of an individual to designate an attorney-in-fact to make decisions under this section.

Consent As It Relates To Sexual Activity

Consent is central to any sexual encounter. When two individuals agree to engage in a sexual relationship, there is an unspoken assumption that consent is always present. Acknowledging the significance of consent may even be one of the earliest lessons children are taught about social interactions. Consent is central to any sexual interaction.
By this definition, consent cannot exist if either party does not agree to engage in sexual activity. Consent must always be an affirmative agreement. For example, someone engaging in sexual behavior with a person who is asleep or unconscious has no consent.
In Utah, consent may be given in multiple ways. It is often implied based on the actions of the parties involved. Consent can be given verbally or non-verbally, but it cannot be given in circumstances where a minor is involved. Consent to one type of sexual activity does not imply consent to another sexual activity between the same individuals. Consent must be given for each individual interaction .
Obtaining consent is more than a social norm because consent issues can carry substantial legal implications. While the law surrounding sexual consent is complicated, Utah law classifies sexual offenses into different categories such as rape, sodomy or sexual battery. Rape or sodomy are generally charged when it is determined that consent was not given. Even in those situations in which consent was not given, it is important to understand that other factors may be present to reduce the severity of the charges against the defendant.
The legal implications of failing to obtain consent are significant. If a defendant is charged with forcible sexual offense, that individual may face potential jail time of a maximum of 15 years. However, sentences may vary based on the fact pattern presented in each case. In addition to potential incarceration time, a conviction of a sexual offense can significantly affect the defendant’s ability to find employment after incarceration. Criminal sexual offenses also require registration on the sex offender registry for all sentenced defendants.

Parental Consent For A Minor

All clients who make use of non-surgical cosmetic procedures should be able to take some comfort in the fact that the law governing consent to medical procedures in Utah is grounded in well-developed dicta and compelling policy considerations. One of those principles is that consent to medical procedures is narrowly permissive. Whereas the law strives to protect individuals from being treated without their consent, it also places significant limits on the ability of individuals to consent to procedures, especially when the individuals are minors. Minors—the focus of a recent decision from the Utah Supreme Court—are categorized as those under the age of 18. Generally, it is understood that those under the age of 18 cannot consent to a given course of treatment. The law relating to minors illustrates that the legislature believes that minors are easily manipulated and whose decisions often reflect that susceptibility. There are two exceptions to the rule prohibiting minors from giving consent: (1) established by the legislature, and (2) generally applied by the courts. The legislature has extended permission for minors to give consent when they are requesting or obtaining treatment for pregnancy, a sexually transmitted disease, drug or substance abuse, or AIDS; or (3) established by the courts, as illustrated in the following subsection.

Recent Revisions In Utah’s Consent Laws

In 2018, the Utah legislature made several changes to the consent laws. This year marks the first year that the new laws are in effect.
First, in 2018, the legislature did away with the affirmative defense an adult could avail themselves of if he or she were charged with unlawful sexual activity with a minor. Unlawful sexual activity with a minor, pursuant to Utah Code Ann. § 76-5-401.2, is defined, in part, as sex with anyone less than 18 years of age. The affirmative defense was that the perpetrator was no more than five years older than the victim at the time of the crime. This affirmative defense was eliminated.
Next, the legislature codified a civil cause of action for those who were the victim of a sex- or labor-trafficking offense. Utah Code Ann. §§ 76-5-308 and 76-10-1202.5 provide grounds for filing a civil lawsuit. A sex-trafficking offense is an offense of carbonating of an individual with the intent to cause the individual to be sexually exploited, and includes offenses such as sex with a minor (as discussed above) and offenses involving making, sending, or producing child pornography Utah Code Ann. § 76-5b-103 et seq. A labor-trafficking offense includes offenses such as felony enslavement and involuntary servitude Utah Code Ann. §§ 76-6-501 et seq. Victims of sex- or labor-trafficking now have the civil recourse to recover economic damages, and the possibility of recovering non-economic and punitive damages.

Commonly Asked Questions About Consent Laws

What age can a Utah resident legally consent to sex? A person must be at least thirteen years old to lawfully consent to having sex, and the age of the other participant must be within the adult ranges (four years younger to fifteen years older, or up to twenty-one for teachers and minors of any age if the abuse occurred while in a position of trust). Violence or force in a required element of the crime.
Is the "Romeo and Juliet" law in effect in Utah? Utah has an affirmative defense for minors of close-in-age because those who are between twelve and fifteen are legally allowed to consent to sex, and those who are between fifteen and eighteen sometimes can. Therefore there is a close-in-age defense that can be raised in these cases to defend the charges.
What is statutory rape? Statutory rape is sex with a minor under the statutory age of consent, and it can be charged with aggravated sexual assault charges, which carry the most penalties. It can be used as a synonym for the felony charge of sexual abuse of a child , which has its own strict liability standard. There is no defense for this crime, it is always a felony and can result in a mandatory sentence without parole for a number of years.
What is the exception to the law when a teacher, dentist or doctor is charged with a sexual crime with the minor? The Utah law applies to the secretary, assistant, foreign exchange student, business supply contractor, and other categories when the defendant had meaningful authority over the alleged victim.
Is the use of force necessary to get a conviction? No. Although excessive force, violence or threat of violence can add elements to the crime and increase the penalty, the laws do not require in any way that the consent of the victim was forced or coerced.
What is the penalty for sex crimes in Utah? Sex crimes are treated with great severity under the law, with the possibility of life in prison for child sexual abuse. Sexually motivated or aggravated offenses are felonies under Utah law.