Section 76-5-406 - Sexual offenses against the victim without consent of victim - Circumstances(1) As used in this section: (a) "Health professional" means an individual who is licensed or who holds the individual out to be licensed, or who otherwise provides professional physical or mental health services, diagnosis, treatment, or counseling, including an athletic trainer, physician, osteopathic physician, physician assistant, nurse, dentist, physical therapist, chiropractor, mental health therapist, social service worker, clinical social worker, certified social worker, marriage and family therapist, professional counselor, psychiatrist, psychologist, psychiatric mental health nurse specialist, or substance abuse counselor.(b) "Religious counselor" means a minister, priest, rabbi, bishop, or other recognized member of the clergy.(c) "To retaliate" includes threats of physical force, kidnapping, or extortion.(2) An act of sexual intercourse, rape, attempted rape, rape of a child, attempted rape of a child, object rape, attempted object rape, object rape of a child, attempted object rape of a child, forcible sodomy, attempted forcible sodomy, sodomy on a child, attempted sodomy on a child, forcible sexual abuse, attempted forcible sexual abuse, sexual abuse of a child, attempted sexual abuse of a child, aggravated sexual abuse of a child, attempted aggravated sexual abuse of a child, or simple sexual abuse is without consent of the victim under any of the following circumstances:(a) the victim expresses lack of consent through words or conduct;(b) the actor overcomes the victim through the actual application of physical force or violence;(c) the actor is able to overcome the victim through concealment or by the element of surprise;(d)(i) the actor coerces the victim to submit by threatening to retaliate in the immediate future against the victim or any other person, and the victim perceives at the time that the actor has the ability to execute this threat; or(ii) the actor coerces the victim to submit by threatening to retaliate in the future against the victim or any other person, and the victim believes at the time that the actor has the ability to execute this threat;(e) the actor knows the victim is unconscious, unaware that the act is occurring, or is physically unable to resist;(f) the actor knows or reasonably should know that the victim has a mental disease or defect, which renders the victim unable to:(i) appraise the nature of the act;(iii) understand the possible consequences to the victim's health or safety; or(iv) appraise the nature of the relationship between the actor and the victim;(g) the actor knows that the victim participates because the victim erroneously believes that the actor is someone else;(h) the actor intentionally impaired the power of the victim to appraise or control his or her conduct by administering any substance without the victim's knowledge;(i) the victim is younger than 14 years of age;(j) the victim is younger than 18 years of age and at the time of the offense the actor was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust in relation to the victim as defined in Section 76-5-404.1;(k) the victim is 14 years of age or older, but younger than 18 years of age, and the actor is more than three years older than the victim and entices or coerces the victim to submit or participate, under circumstances not amounting to the force or threat required under Subsection (2)(b) or (d); or(l) the actor is a health professional or religious counselor, the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been manifested.(3) Consent to any sexual act or prior consensual activity between or with any party does not necessarily constitute consent to any other sexual act. Consent may be initially given but may be withdrawn through words or conduct at any time prior to or during sexual activity.Amended by Chapter 92, 2020 General Session ,§ 1, eff. 5/12/2020.Amended by Chapter 189, 2019 General Session ,§ 10, eff. 5/14/2019.Amended by Chapter 349, 2019 General Session ,§ 59, eff. 5/14/2019.Amended by Chapter 146, 2019 General Session ,§ 2, eff. 5/14/2019.Amended by Chapter 176, 2018 General Session ,§ 1, eff. 5/8/2018.Amended by Chapter 57, 2015 General Session ,§ 1, eff. 5/12/2015.Amended by Chapter 135, 2014 General Session ,§ 5, eff. 5/13/2014.Amended by Chapter 141, 2014 General Session ,§ 3, eff. 5/13/2014.Amended by Chapter 196, 2013 General Session ,§ 9, eff. 5/14/2013.Amended by Chapter 149, 2003 General Session