Bill Summary – FastDemocracy

Enrolled Copy                                                                              H.B. 225
                       UNLAWFUL KISSING OF A CHILD OR MINOR
                                           2024 GENERAL SESSION
                                                STATE OF UTAH
                                      Chief Sponsor: Andrew Stoddard Senate Sponsor: Kirk A. Cullimore
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  LONG TITLE
  General Description:
      This bill concerns unlawful kissing of a child or minor.
  Highlighted Provisions:
      This bill:
      ▸ defines terms;
      ▸ provides that a mistake as to the victim's age is not a defense to the offense of
  unlawfully kissing a child;
      ▸ creates the offenses of unlawfully kissing a child and unlawfully kissing a minor;
      ▸ establishes criminal penalties; and
      ▸ makes technical and conforming changes.
  Money Appropriated in this Bill:
      None
  Other Special Clauses:
      None
  Utah Code Sections Affected:
  AMENDS:
      76-2-304.5, as last amended by Laws of Utah 2022, Chapter 181
      76-10-1303, as last amended by Laws of Utah 2022, Chapter 124
  ENACTS:
      76-5-416.2, as Utah Code Annotated 1953
      76-5-416.4, as Utah Code Annotated 1953
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  Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 76-2-304.5 is amended to read:
     H.B. 225                                                                                Enrolled Copy
         76-2-304.5 . Mistake as to victim's age not a defense.
   (1) It is not a defense to the [crime of child kidnapping, a violation of Section 76-5-301.1;
       rape of a child, a violation of Section 76-5-402.1; object rape of a child, a violation of
       Section 76-5-402.3; sodomy on a child, a violation of Section 76-5-403.1; sexual abuse
       of a child, a violation of Section 76-5-404.1; aggravated sexual abuse of a child, a
       violation of Section 76-5-404.3; or an attempt to commit any of these offenses,]
       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[.] :
       (a) child kidnapping, Section 76-5-301.1;
       (b) rape of a child, Section 76-5-402.1;
       (c) object rape of a child, Section 76-5-402.3;
       (d) sodomy on a child, Section 76-5-403.1;
       (e) sexual abuse of a child, Section 76-5-404.1;
       (f) aggravated sexual abuse of a child, Section 76-5-404.3;
       (g) unlawful kissing of a child, Section 76-5-416.2; or
       (h) an attempt to commit an offense listed in Subsections (1)(a) through (1)(g).
   (2) It is not a defense to the [crime of unlawful sexual activity with a minor, a violation of
       Section 76-5-401; sexual abuse of a minor, a violation of Section 76-5-401.1; or an
       attempt to commit either of these offenses,] 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[.] :
       (a) unlawful sexual activity with a minor, Section 76-5-401;
       (b) sexual abuse of a minor, Section 76-5-401.1; or
       (c) an attempt to commit an offense listed in Subsection (2)(a) or (2)(b).
   (3) It is not a defense to the [crime of aggravated human trafficking, a violation of Section
       76-5-310, aggravated human smuggling, a violation of Section 76-5-310.1, or human
       trafficking of a child, a violation of Section 76-5-308.5,] 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[.] :
       (a) human trafficking of a child, Section 76-5-308.5;
       (b) aggravated human trafficking, Section 76-5-310;
       (c) aggravated human smuggling, Section 76-5-310.1;
       (d) unlawful sexual conduct with a minor, Subsection 76-5-401.2(2)(a)(ii);
       (e) patronizing a prostitute, Section 76-10-1303;
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     Enrolled Copy                                                                                  H.B. 225
      (f) aggravated exploitation of prostitution, Section 76-10-1306; or
      (g) sexual solicitation, Section 76-10-1313.
  [(4) It is not a defense to the crime of unlawful sexual activity with a minor, a violation of
      Subsection 76-5-401.2(2)(a)(ii), 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.]
  [(5) It is not a defense to any of the following crimes 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:]
      [(a) patronizing a prostitute, a violation of Section 76-10-1303;]
      [(b) aggravated exploitation of a prostitute, a violation of Section 76-10-1306; or]
      [(c) sexual solicitation, a violation of Section 76-10-1313.]
        Section 2. Section 76-5-416.2 is enacted to read:
        76-5-416.2 . Unlawful kissing of a child.
  (1) (a) As used in this section, "child" means an individual who is under 14 years old.
      (b) Terms defined in Section 76-1-101.5 apply to this section.
  (2) An actor commits unlawful kissing of a child if the actor:
      (a) is 18 years old or older; and
      (b) intentionally or knowingly:
          (i) kisses a child on the child's mouth; and
          (ii) penetrates the minor's mouth with the actor's tongue.
  (3) A violation of Subsection (2) is a class A misdemeanor.
  (4) Any penetration, however slight, of the mouth of the child by the actor's tongue is
      sufficient to constitute a violation of this section.
        Section 3. Section 76-5-416.4 is enacted to read:
        76-5-416.4 . Unlawful kissing of a minor.
  (1) (a) As used in this section, "minor" means an individual who is 14 years old or older
      but younger than 18 years old.
      (b) Terms defined in Section 76-1-101.5 apply to this section.
  (2) An actor commits unlawful kissing of a minor if the actor:
      (a) intentionally or knowingly:
          (i) kisses a minor on the minor's mouth; and
          (ii) penetrates the minor's mouth with the actor's tongue; and
      (b) is older than the minor by 10 years or more.
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      H.B. 225                                                                                 Enrolled Copy
   (3) A violation of Subsection (2) is a class A misdemeanor.
   (4) Any penetration, however slight, of the mouth of the minor by the actor's tongue is
       sufficient to constitute a violation of this section.
         Section 4. Section 76-10-1303 is amended to read:
         76-10-1303 . Patronizing a prostitute.
   (1) An actor is guilty of patronizing a prostitute if the actor:
       (a) pays or offers or agrees to pay a prostituted individual, or an individual the actor
            believes to be a prostituted individual, a fee, or the functional equivalent of a fee, for
            the purpose of engaging in an act of sexual activity; or
       (b) enters or remains in a place of prostitution for the purpose of engaging in sexual
            activity.
   (2) Patronizing a prostitute is a class A misdemeanor, except as provided in Subsection (3),
       (4), or (5) or Section 76-10-1309.
   (3) A violation of this section that is preceded by a conviction under this section or a
       conviction under a local ordinance adopted under Section 76-10-1307 is a class A
       misdemeanor.
   (4) A third violation of this section or a local ordinance adopted under Section 76-10-1307
       is a third degree felony.
   (5) (a) Except as provided in Subsection (5)(d), if the patronizing of a prostitute under
       Subsection (1)(a) involves a child as the other individual, a violation of Subsection
       (1)(a) is a second degree felony.
       (b) In accordance with [Subsection 76-2-304.5(5)(a)] Section 76-2-304.5, it is not a
            defense to a prosecution under Subsection (5)(a) that the actor mistakenly believed
            the individual to be 18 years old or older at the time of the offense or was unaware of
            the individual's true age.
       (c) An actor's belief that the individual was under 18 years old at the time of the offense,
            even if the individual was 18 years old or older, is a violation of Subsection (5)(a).
       (d) If the act committed under Subsection (5)(a) amounts to an offense that is subject to
            a greater penalty under another provision of state law than is provided under
            Subsection (5)(a), this Subsection (5) does not prohibit prosecution and sentencing
            for the more serious offense.
   (6) Upon a conviction for a violation of this section, the court shall order:
       (a) the maximum fine amount and may not waive or suspend the fine; and
       (b) the defendant to pay for and complete a court-approved educational program about
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      Enrolled Copy                                                                               H.B. 225
          the negative effects on an individual involved with prostitution or human trafficking.
       Section 5. Effective date.
      This bill takes effect on May 1, 2024.
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Statutes affected: 
Introduced: 76-2-304.5, 76-10-1303
Amended: 76-2-304.5, 76-10-1303
Enrolled: 76-2-304.5, 76-10-1303