Utah Code
Utah Code § 76-2-304.5 (2026)
Mistake as to victim's age not a defense
✓ current as of May 2026
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It is not a defense to the following offenses that the actor mistakenly believed the victim to be 14 years old or older at the time of the alleged offense or was unaware of the victim's true age:
child kidnapping, Section 76-5-301.1;
rape of a child, Section 76-5-402.1;
object rape of a child, Section 76-5-402.3;
sodomy on a child, Section 76-5-403.1;
sexual abuse of a child, Section 76-5-404.1;
aggravated sexual abuse of a child, Section 76-5-404.3;
unlawful kissing of a child, Section 76-5-416.2; or
It is not a defense to the following offenses that the actor mistakenly believed the victim to be 16 years old or older at the time of the alleged offense or was unaware of the victim's true age:
unlawful sexual activity with a minor, Section 76-5-401;
sexual abuse of a minor, Section 76-5-401.1; or
It is not a defense to the following offenses that the actor mistakenly believed the victim to be 18 years old or older at the time of the alleged offense or was unaware of the victim's true age:
human trafficking of a child for labor, Section 76-5-308.5;
human trafficking of a child for commercial sexual exploitation, Section 76-5-308.6;
aggravated human trafficking, Section 76-5-310;
aggravated human smuggling, Section 76-5-317;
unlawful sexual conduct with a minor, Subsection 76-5-401.2(2)(a)(ii);
patronizing a prostituted individual who is a child, Section 76-5d-204;
aggravated exploitation of prostitution, Section 76-5d-208; or
sexual solicitation by an actor offering compensation to a child in exchange for sexual activity, Section 76-5d-211.
Notes of Decisions
Cited in 9
cases (1 in the last 5 years), 1984–2021 · leading case: State v. Martinez, 2000 UT App 320 (Utah Ct. App. 2000).
State v. Martinez, 2000 UT App 320 (Utah Ct. App. 2000). “Utah Code Ann. § 76-2-304.5 (2) (1999). The clear language of this section supports the conclusion that the legislature intended to render a defendant's state of mind regarding the age of the victim irrelevant.”
State v. Martinez, 2002 UT 80 (Utah 2002). “Utah Code Ann. § 76-2-304.5 (2001). 2 . The trial court observed that although defendant could testify about what the victim told him about her age, the affirmative defense of mistake would not be available and the State need not prove a knowledge element.”
United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008). “Twenty-two states have no provision in their statutory framework for a mistake of fact defense when the sexual activity involves children: there is neither a mens rea with respect to age nor an explicit defense. All but one of those states’ courts have declined to recognize a…”
State Ex Rel. Wcp, 1999 UT App 35 (Utah Ct. App. 1999). “See Utah Code Ann. § 76-2-304.5 (Supp.1998). Section 77-2a-3(7) forbids the taking of a plea in abeyance for "sexual offense[s] against a victim who is under the age of 14.”
State v. Elton, 680 P.2d 727 (Utah 1984). “, 1953, § 76-2-304.5(2). That provision, however, is not applied retroactively to the facts of this case, because it would likely violate constitutional prohibitions against ex post facto laws.”
State v. Yanez, 716 A.2d 759 (R.I. 1998). “35 (West 1998) (but no minimum sentence unless victim under age eleven); Utah Code Ann. §§ 76-2-304.5 and 76-3-203 (1995) (abrogating decision in State v.”
State Ex Rel. W.C.P., 974 P.2d 302 (Utah Ct. App. 1999). “See Utah Code Ann. § 76-2-304.5 (Supp.1998). Section 77-2a-3(7) forbids the taking of a plea in abeyance for “sexual offense[s] against a victim who is under the age of 14.”
State v. Jimenez, 284 P.3d 640 (Utah 2012). “2d 727, 728 (Utah 1984), superseded by statute, Ura Cope § 76-2-304.5(2). . Cope § 76-2-102. . Elton, 680 P.”
State v. Rosen, 2021 UT App 32 (Utah Ct. App. 2021). “§ 76-2-304.5(4) (2017). ¶6 Being significantly more than ten years older than Victim, Rosen had no basis on which to argue a reasonable-mistake-of-age defense under the terms of the statute.”
— Utah Code § 76-2-304.5(1) — 2 cases
State v. Martinez, 2000 UT App 320 (Utah Ct. App. 2000). “Utah Code Ann. § 76-2-304.5 (2) (1999). The clear language of this section supports the conclusion that the legislature intended to render a defendant's state of mind regarding the age of the victim irrelevant.”
State v. Martinez, 2002 UT 80 (Utah 2002). “Utah Code Ann. § 76-2-304.5 (2001). 2 . The trial court observed that although defendant could testify about what the victim told him about her age, the affirmative defense of mistake would not be available and the State need not prove a knowledge element.”
— Utah Code § 76-2-304.5(2) — 3 cases
State v. Martinez, 2000 UT App 320 (Utah Ct. App. 2000). “Utah Code Ann. § 76-2-304.5 (2) (1999). The clear language of this section supports the conclusion that the legislature intended to render a defendant's state of mind regarding the age of the victim irrelevant.”
State v. Elton, 680 P.2d 727 (Utah 1984). “, 1953, § 76-2-304.5(2). That provision, however, is not applied retroactively to the facts of this case, because it would likely violate constitutional prohibitions against ex post facto laws.”
State v. Jimenez, 284 P.3d 640 (Utah 2012). “2d 727, 728 (Utah 1984), superseded by statute, Ura Cope § 76-2-304.5(2). . Cope § 76-2-102. . Elton, 680 P.”
— Utah Code § 76-2-304.5(4) — 1 case
State v. Rosen, 2021 UT App 32 (Utah Ct. App. 2021). “§ 76-2-304.5(4) (2017). ¶6 Being significantly more than ten years older than Victim, Rosen had no basis on which to argue a reasonable-mistake-of-age defense under the terms of the statute.”
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