Utah Consent Laws Overview
Consent laws in Utah govern how and when consent must be given in a number of different contexts. This can include sexual consent, consent to search a person’s phone or computer, consent to perform or refuse medical procedures, and consent to be interrogated by police. Consent is one of the most fundamental principles in civil and criminal law. For example, consent is a defense for many crimes because it negates the element of intent. If someone consents to something, they do so knowingly and voluntarily.
In Utah , consent laws are codified into the Utah Code and the Utah Constitution. In addition to these laws, there are a number of general principles that govern the concept of consent in Utah. Here are some of the most basic: A consent form is an important legal document. It is a written agreement that authorizes an action based on the legal consent of the parties involved. While consent forms may be used in a number of issues, contract and consent forms are particularly important in personal injury and healthcare contexts.
Utah Age of Consent
As discussed in the previous section, the legal age of consent in Utah is 18. Utah is in line with many other states in the country, with only a few minors allowed by law to consent to sexual activity before the age of 18. With a population of over 3 million people and new residents moving to the state every day, it is important that residents of Utah understand the laws that govern the state, and how they can impact their everyday lives.
The exceptions to the rule are specified in Section 76-5-401.3 of the Utah Code, where the law specifically states the prior points of the law, and then continues with the following specific circumstances: As you can see, the law is plain and unexciting. It is important to know what type of language the legislature uses, as there are special circumstances that could alter a person’s age of consent. For example, if persons under the age of 18 are involved in the crime, and one of the two individuals is sexually motivated, the penalty is greater than if they were both over the age of 18 and had consensual intercourse without any motivation. Utah’s Code references many different clauses or circumstances which always keep the reader on their toes. This is exactly why it is so important that a lawyer advises individuals on how to proceed if they have been accused.
Forms of Consent: Implied vs. Express
In Utah, you can give consent in two ways: implicit and explicit. Implicit consent means that you allow someone to do something by failing to object. An example of implicit consent is if someone grabs a hold of your arm and you don’t pull away. This doesn’t mean you want that person to hold your arm. It means you are giving implicitly consent because you haven’t tried to pull away.
An example of explicit consent is that you have an agreement that explicitly states what you both can and cannot do. The sexual assault laws in Utah say that if you engage in sexual conduct with someone and fail to take affirmative steps to make sure your partner agrees to everything that is happening, you will likely be charged with sexual assault under the Utah Penal Code.
There is no law in Utah that says that both parties must give explicit consent every single time before engaging in sexual conduct. If both parties have been together for years, they may be able to conclude that they can pretty much do whatever they want as long as they treat each other with respect. However, if they haven’t been with each other for long or have been recently dating, it is usually best to take affirmative steps before moving forward with sex.
Substantial steps toward obtaining permission from their partner should be taken before having sex for the first time. For instance, couples should discuss and negotiate acceptable ways to engage in sex. Each time sexual conduct occurs, the couple should use explicit consent to be on the same page about what is happening.
Medical Consent Laws in Utah
Utah defines the emergency medical condition as one that is a "medical condition manifesting itself by acute symptoms of such severity, including severe pain, that the absence of immediate medical attention could reasonably be expected to result in" the demise of the individual, putting their health at risk, disfigurement, impairment (temporary or permanent), or dysfunction of any bodily organ. In this situation, consent by the patient is not required.
Generally, the person who is to provide the health care for an adult is the person with whom the patient has made a treatment decision. Parents have authority over a minor unless the minor has married or been liberated from the parents’ consent. Utah law provides an exception to parental consent when it involves a minor who has been "a victim of . . . abuse, abandonment, or neglect;" reported by the minor or by someone reporting on behalf of the minor; and where the physician determines that the parent is acting adversely to the minor’s interests.
An emancipated minor is qualified as any of the following: (a) the minor is at least 14 years of age and has graduated from high school; (b) the minor’s spouse; (c) the minor is within the active military service of the United States; (d) the minor is at least 16 years of age, resides independently and manages his own finances; (e) the minor is married and meets the requirements of Utah Code Ann. §30-2-5.
The emergency exception includes when the patient or his/her representative is not available to consent in the time it would take for a reasonably available health care provider to obtain consent from the patient or his/her representative.
The following individuals can provide consent on behalf of the patient: a proxy appointed by a health care directive or living will; another person authorized by law to make medical decisions for the patient; a parent, stepparent or grandparent of the minor; or the child’s legal guardian. Utah Code Ann. §75-2a-10(3).
Sexual Consent and the Law
In Utah, sexual consent must be given freely and voluntarily. It must be defined in a way that allows all involved parties to understand the nature of what is being consented to. Consent can also be withdrawn at any time. The law requires that each party has the right and capacity to have sex with others. If they do not meet these requirements, they lack the capacity to consent.
Both state and federal laws outline the requirements for sexual consent in Utah. There are many factors that can go into determining whether or not consent was given for sexual activity and the following list highlights a few of these considerations: The nuances involved with consent can make it hard to provide consent in a clear manner. Therefore, there are very strict laws regarding failures to get consent in Utah. In fact, there are several laws outlining specific results because no consent was given. The first statute to consider is Utah Statute Code 76-5-406 , which discusses the sexual offense of rape. This statute states that everyone who commits or attempts to commit an offense involving sexual intercourse in a manner that is not consensual is guilty of a felony. Another law to examine in regard to consent violations in personal relations is Utah state law 76-5-402.2. This law states that if a person engages in sexual activity with another person, knowing that they are married to another person (or that the other person is married or involved in a similarly recognized relationship), then they have committed an infidelity, which is a class B misdemeanor under Utah law. Passage of the new sexual consent law passed during the 2017 legislature resulted in a few changes. These are detailed in Utah Code 76-5-406.3, which defines consent on behalf of partners involved in a sexual offense like rape or attempted rape. Both Utah Code 76-5-406 and Utah Code 76-5-402.2 are considered felony offenses in the state of Utah. When charged and convicted of these crimes, the accused face severe punishment under the law. Penalties include spending time in jail or prison, paying expensive fines and having a permanent criminal record. Penalties can be even more severe for aggravated versions of these crimes.
Consent for Electronic and Internet Communications
The digital age has spawned a multitude of consent-related issues, particularly in the context of data privacy and the enforcement of agreements made in electronic format. The consequences of a person’s consent—or lack thereof—invite special attention under the law.
The use of computers, smartphones, and other technology has given rise to new challenges in the law. For instance, how should we interpret an "X" marking the spot when X denotes electronic consent? How do we address a refund policy that applies only if it is agreed to online?
Fortunately, technology has made it easier than ever to obtain consent. The first step is granting notice of important information, such as the ability to save personal data or information. Digital notices can be placed directly on a website or app, or they can be sent via email or text message. Unfortunately, however, people are often so overwhelmed by the number of documents they are required to review and sign that they simply give a blanket signature without reading it.
This leads to two questions:
1. Is this legal?
2. What should I do about it?
Let’s tackle the first question.
Legality of consent obtained online
Agreements that do not need to be signed by hand or notarized are known as "agreements requiring only one signature for validity." An example of this is an email message sent to the person who bought something online. "Click here to agree to the refund policy" is generally accepted as legally binding.
However, some legal requirements may apply for online consent:
Electronic consent
Electronic signatures are valid, as long as they meet legal requirements and are obtained properly. It is generally recommended to obtain hand-written signatures or notarized signatures so as to avoid issues down the line, but this is not a requirement.
Content of consent
The actual content of the consent is important. The language must be clear and understandable. The other person must know that they are voluntarily consenting. If there are potential negative consequences (such as loss of data), these must be clearly spelled out.
It is also important to note that the consent must be in "plain language" and legal jargon or complex terms must be avoided.
Rules for electronic signature
As mentioned above, there are rules for electronic signatures. Under the Utah Uniform Electronic Transactions Act, electronic signatures can include, but are not limited to:
● email messages
● SMS messages
● texts
● voice messages
● typing a name into a form on the internet
● clicking an "I agree" button on a website
● Checking a box next to a statement, for example, "I have read and understood the terms and conditions and agree to them."
Exceptions to rules for electronic signature
There are exceptions to the law mandating electronic signatures. These exceptions are set forth in 15 U.S.C. § 7003. For instance, even a signed agreement that is notarized is not legally valid if it was (1) entered into as part of a bail bond, (2) established a family trust, or (3) is for the sale of goods over $500. There are more exceptions in the UETA, but the above gives you a general idea.
Some laws require a hand-written signature to be valid. For example, a last will and testament must not be electronic. There are also rules that state certain documents must be notarized or witnesses.
Additionally, the interests of a minor, mentally incompetent, or legally incompetent party must be protected, which may affect the right or ability to consent online.
Issues with obtaining consent online
Many scams are conducted via email or online. For instance, there is a fake refund policy that stipulates that the person agrees to refund the refunds paid to him or her. It is no surprise that a "blanket consent" given online without further information may incur negative consequences for the party.
If you wish to consent to a privacy policy, refund policy, or a similar agreement online, make sure you are entirely comfortable doing so. To err on the side of caution, you can print the policy, read it carefully, and uphold it like a hand-written agreement.
Recent Developments and Changes in Utah Consent Laws
As of recent, the Utah House passed a bill that allows defendants in rape cases to present evidence of the victim’s sexual conduct in defense to a charge of forcible sexual offense. Prior to this House Bill, such evidence could only be presented to examine the credibility of the victim and not for substantive proof of any element of the crime. Currently in Utah, Utah Code Ann. § 76-5-412(2) provides that "evidence of specific instances of conduct showing the alleged victim engaged in other sexual behavior is not admissible upon an issue of consent." New language in the bill will be added to Utah Code Ann. § 76-5-412, which will provide that "evidence of a specific instance of sexual behavior may be admitted upon an issue of consent if admissible under Utah rules of evidence." The means in which this bill would lead to be changed in Utah consent laws is that evidence that goes to the particular crime at hand away from credibility of the victim could now have relevance . This amendment would comport in some way Utah consent laws with that of states like North Carolina, that allow sexual character evidence to be presented in the defendant’s favor. However, this particular bill is currently pending in the Senate on second reading. Another bill is pending in the legislature that would eliminate the needed consent for a person to be prosecuted for between 12 and 16 years of age. Under some cases, a person as young as 11 could potentially be prosecuted for sexual offenses. This bill would provide that a "person is not criminally liable if he or she was less than 12 years old at the time of the incident," if the incident in question is between minors who are between the ages of 12 and 16, the victim of the offense was at least 12 years old at the time of the offense and the actor was less than 11 years old at the time of the offense. This bill would eliminate the age element of Utah code section 76-5-412(2)(a) which provides that it is an affirmative defense if the defendant and the victim have a marriage relationship or the defendant and victim are at least 12 years old.