Attempted sex crimes are one of the most complicated areas of Utah criminal law. Unlike crimes such as rape and sexual assault, the prosecution of a solicitation crime is characterized by applying vague laws to highly subjective fact-intensive situations.
The Supreme Court of Utah recently clarified the difference between solicitation of a minor and an attempted sex crime.
The court decided a case involving an Ogden man who was convicted of attempted sodomy on a child. The man allegedly approached an 11-year-old boy and offered to pay to perform oral sex on the boy.
The man argued that his actions amounted to solicitation of sodomy on a child and not attempted sodomy on a child (which is a more serious crime.)
An appeals court previously held that Utah's solicitation statute only encompassed soliciting a third party to commit a crime. The Utah Supreme Court rejected this argument, noting that the language would also encompass the solicitation of a victim that lacks the capacity to consent to a sexual act.
The court went on to hold that solicitation of a minor could not form the basis of an attempted sex crime without additional actions. This is because an attempted sex crime requires "a substantial step" toward the commission of that crime, and the act of solicitation could not constitute that step.
"Solicitation alone cannot constitute a substantial step toward the commission of a crime," the court wrote. "Were it otherwise, any actor who solicits a third party to participate in felony conduct would face the potential of being charged with attempt to commit the proposed felony instead of just solicitation."
This would make the crime of solicitation the same thing as the attempted sex crime, which is not.
"We cannot read the elements of attempt in a manner that would swallow the crime of solicitation," the court said.
The Salt Lake City criminal defense team at Greg Smith & Associates handles criminal defense cases throughout Utah. If you or a loved one is under investigation or has been charged with a sex crime, call us at 888-708-8867 or contact us online.