Utah Code » Title 76, Chapter 5 — Offenses Against the Individual; part 76-5-4 — Sexual Offenses
Utah Code

Utah Code § 76-5-401 (2026)

Unlawful sexual activity with a minor -- Penalties -- Evidence of age raised by defendant -- Limitations

✓ current as of May 2026
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As used in this section, "minor" means an individual who is 14 years old or older, but younger than 16 years old, at the time the sexual activity described in Subsection (2) occurred.
Terms defined in Section 76-1-101.5 apply to this section.
Under circumstances not amounting to an offense listed in Subsection (4), an actor 18 years old or older commits unlawful sexual activity with a minor if the actor:
has sexual intercourse with the minor;
engages in any sexual act with the minor involving the genitals of an individual and the mouth or anus of another individual; or
causes the penetration, however slight, of the genital or anal opening of the minor by a foreign object, substance, instrument, or device, including a part of the human body, with the intent to cause substantial emotional or bodily pain to any individual or with the intent to arouse or gratify the sexual desire of any individual.
Any touching, however slight, is sufficient to constitute the relevant element of a violation of Subsection (2)(a)(ii).
A violation of Subsection (2) is a third degree felony.
Notwithstanding Subsection (3)(a) or (c), a violation of Subsection (2) is a class B misdemeanor if the defendant establishes by a preponderance of the evidence the mitigating factor that:
the defendant is less than four years older than the minor at the time the sexual activity occurred; or
the defendant is 18 years old and enrolled in high school at the time the sexual activity occurred.
Notwithstanding Subsection (3)(a), if the defendant establishes by a preponderance of the evidence the mitigating factor that the defendant was younger than 21 years old at the time the sexual activity occurred, the offense is a class A misdemeanor.
The offenses referred to in Subsection (2)(a) are:
rape, in violation of Section 76-5-402;
object rape, in violation of Section 76-5-402.2;
forcible sodomy, in violation of Section 76-5-403;
aggravated sexual assault, in violation of Section 76-5-405; or
an attempt to commit an offense listed in Subsections (4)(a) through (4)(d).
Notes of Decisions
Cited in 58 cases (9 in the last 5 years), 1978–2025 · leading case: State v. Martinez, 2000 UT App 320 (Utah Ct. App. 2000).
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State v. Martinez, 2000 UT App 320 (Utah Ct. App. 2000). · cites it 196× “OPINION BILLINGS, Judge: ¶ 1 Michael Martinez (Defendant) appeals his conviction for unlawful sexual activity with a minor in violation of Utah Code Ann. § 76-5-401 , arguing the trial court erred by ruling that unlawful sexual activity with a minor is a strict liability crime.”
State v. Martinez, 2002 UT 80 (Utah 2002). · cites it 40× “Utah Code Ann. § 76-5-401 (2001). 4 Section 76-5-401 does not specify a culpable mental state for the crime of unlawful sexual activity with a minor.”
State v. Elton, 680 P.2d 727 (Utah 1984). · cites it 10× “, 1953, § 76-5-401. We later withdrew that opinion for the purpose of rehearing *728 the case and addressing more fully an issue of first impression.”
Nevares v. M.L.S., 2015 UT 34 (Utah 2015). · cites it 6× “See UTAH CODE § 76-5-401 (describing the crime of “unlawful sexual activity with a minor”; defining “minor” as a “person who is 14 years of age or older, but younger than 16 years of age at the time [of] the sexual activity”; and identifying unlawful sex acts, including “sexual…”
State v. LoPrinzi, 2014 UT App 256 (Utah Ct. App. 2014). · cites it 10× “‛6 Utah Code Ann. § 76-5-401 . Sexual battery involves ‚intentional*+ touch*ing+, whether or not 6.”
United States v. Johnny Escalante, 933 F.3d 395 (5th Cir. 2019). · cites it 3× “Escalante argues that whether that affirmative defense was available "reflects an enormous difference in culpability" because it distinguishes between intentional and unintentional conduct. He argues that because a mental state defense exists for one offense and not for the…”
Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464 (1981). · cites it 2× “1979); Utah Code Ann. § 76-5-401 (Supp. 1979); Vt.”
State v. Housekeeper, 588 P.2d 139 (Utah 1978). · cites it 8× “ELLETT, Chief Justice: The defendant was tried and convicted by a jury of the crime of unlawful sexual intercourse, a felony of the third degree, in violation of Section 76-5-401, U.C.A., 1953, as amended.”
United States v. Faustino Gomez, 757 F.3d 885 (9th Cir. 2014). · cites it 2× “011 (a)(2), (c)(1); Utah Code Ann. §§ 76-5-401 , 76-5-402.1; Vt.”
State v. Harrison, 2001 UT 33 (Utah 2001). · cites it 4× “¶ 22 In this case, defendant was charged with one count of rape in violation of section 76-5-402, one count of forcible sexual abuse in violation of section 76-5-404, and two counts of unlawful sexual conduct with a sixteen or seventeen year old, violations of section…”
In Interest of Tw, 2006 UT App 259 (Utah Ct. App. 2006). · cites it 10× “" See Utah Code Ann. § 76-5-401 (2003). We affirm.”
State v. Nunes, 2020 UT App 145 (Utah Ct. App. 2020). · cites it 2× “See Utah Code Ann. § 76-5-401 (2)–(3) (LexisNexis 2012) (“[An] actor .”
Show all 58 citing cases →
— Utah Code § 76-5-401(1) — 3 cases
Nevares v. M.L.S., 2015 UT 34 (Utah 2015). “See UTAH CODE § 76-5-401 (describing the crime of “unlawful sexual activity with a minor”; defining “minor” as a “person who is 14 years of age or older, but younger than 16 years of age at the time [of] the sexual activity”; and identifying unlawful sex acts, including “sexual…”
State v. Jimenez, 284 P.3d 640 (Utah 2012).
State v. Begay, 2024 UT App 63 (Utah Ct. App. 2024).
— Utah Code § 76-5-401(1)(a) — 1 case
State v. Smith, 2024 UT 13 (Utah 2024).
— Utah Code § 76-5-401(2) — 6 cases
State v. Harrison, 2001 UT 33 (Utah 2001). “¶ 22 In this case, defendant was charged with one count of rape in violation of section 76-5-402, one count of forcible sexual abuse in violation of section 76-5-404, and two counts of unlawful sexual conduct with a sixteen or seventeen year old, violations of section…”
Nevares v. M.L.S., 2015 UT 34 (Utah 2015). “See UTAH CODE § 76-5-401 (describing the crime of “unlawful sexual activity with a minor”; defining “minor” as a “person who is 14 years of age or older, but younger than 16 years of age at the time [of] the sexual activity”; and identifying unlawful sex acts, including “sexual…”
State v. Elton, 680 P.2d 727 (Utah 1984). “, 1953, § 76-5-401. We later withdrew that opinion for the purpose of rehearing *728 the case and addressing more fully an issue of first impression.”
State v. Ray, 2022 UT App 95 (Utah Ct. App. 2022).
State v. Huey, 2022 UT App 94 (Utah Ct. App. 2022).
— Utah Code § 76-5-401(2)(a) — 2 cases
Rangel-Perez v. Holder, 816 F.3d 591 (10th Cir. 2016).
State v. Martinez, 2000 UT App 320 (Utah Ct. App. 2000). “OPINION BILLINGS, Judge: ¶ 1 Michael Martinez (Defendant) appeals his conviction for unlawful sexual activity with a minor in violation of Utah Code Ann. § 76-5-401 , arguing the trial court erred by ruling that unlawful sexual activity with a minor is a strict liability crime.”
— Utah Code § 76-5-401(3) — 2 cases
State v. Martinez, 2000 UT App 320 (Utah Ct. App. 2000). “OPINION BILLINGS, Judge: ¶ 1 Michael Martinez (Defendant) appeals his conviction for unlawful sexual activity with a minor in violation of Utah Code Ann. § 76-5-401 , arguing the trial court erred by ruling that unlawful sexual activity with a minor is a strict liability crime.”
State v. Brotherson, 2020 UT App 97 (Utah Ct. App. 2020).
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