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Utah Criminal Code 76-5-104

Utah Criminal Code 76-5-104

Utah Criminal Code: 76-5-104. Consensual Altercation

In any prosecution for criminal homicide under Part 2, Criminal Homicide, or assault, it is no defense to the prosecution that the defendant was a party to any duel, mutual combat, or other consensual altercation if during the course of the duel, combat, or altercation any dangerous weapon as defined in Section 76-1-601 was used or if the defendant was engaged in an ultimate fighting match as defined in Section 76-9-705.

Terms Used In Utah Code 76-5-104

• Dangerous weapon: means any item capable of causing death or serious bodily injury; or a facsimile or representation of the item, if: the actor’s use or apparent intended use of the item leads the victim to reasonably believe the item is likely to cause death or serious bodily injury; or the actor represents to the victim verbally or in any other manner that he is in control of such an item.
• Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.

In any prosecution for criminal homicide under Part 2, Criminal Homicide, or assault, it is no defense to the prosecution that the defendant was a party to any duel, mutual combat, or other consensual altercation if during the course of the duel, combat, or altercation any dangerous weapon as defined in Section 76-1-601 was used or if the defendant was engaged in an ultimate fighting match as defined in Section 76-9-705. Consensual altercation is sometimes referred to as assault by mutual consent. It refers to your typical fight, where both parties enter into the altercation with knowledge and consent. Under Utah law, consensual altercation is not a valid legal defense. This means, it doesn’t matter if both parties entered the fight willingly, if your actions amount to assault as defined above, you could be tried and convicted.

The crime of assault can be either a misdemeanor or a felony in Utah depending upon:
• the amount of force used, and
• whether weapons were involved.
A person can be accused of assault even if no one was injured.
There are three types of assault under Utah criminal law.
1. Simple assault.
2. Aggravated assault.
3. Assault with the intent to commit a felony.
Assault is defined under Utah law as:
• an unlawful attempt,
• to commit a violent injury on the person of another,
• coupled with a present ability to do so.
The punishment for assault ranges from misdemeanor probation and county jail, to state prison and large fines.
1. Simple assault is a misdemeanor punishable by up to six months in jail and fines.
2. Aggravated assault can be a misdemeanor or a felony, punishable by jail or prison, and fines.
3. Assault with the intent to commit a felony is a felony and punishable by state prison and fines.
Defenses to assault charges in Utah include:
• self defense
• defense of others,
• mistaken identity,
• no use of deadly weapons,
• the force used was not likely to cause great bodily injury.
To prove that a person is guilty of misdemeanor assault a prosecutor must prove that:
• the accused did an act that by its nature would directly and probably result in the application of force to a person;
• the accused did that act willfully;
• the accused was aware of facts that would lead a reasonable person to realize that the act would directly and probably result in the application of force to someone;
• when the accused acted, he or she had the present ability to apply force to a person, and
• the accused did not act in self-defense, or in defense of someone else.

To prove that a person is guilty of felony assault a prosecutor must prove that:
• the accused did an act:
• with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person, or
• the act by its nature would directly and probably result in the application of force to a person, and the force used was likely to produce great bodily injury, OR
• the accused used a firearm, the accused did that act willfully, the accused was aware of facts that would lead a reasonable person to realize that the act would directly and probably result in the application of force to someone, when the accused acted, he or she had the present ability to
• apply force likely to produce great bodily injury, OR
• with a deadly weapon other than a firearm, OR
• with a firearm, the accused did not act in self-defense, or in defense of someone else.
Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. A deadly weapon other than a firearm is:
• any object, instrument, or weapon that is inherently deadly, or
• one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.
Misdemeanor assault charges usually result when the court determines that the crime committed is severe enough to mar an individual’s record. Illegal possession of steroids, small burglary or theft crimes (not exceeding $500) or intentionally causing bodily harm all qualify for a misdemeanor assault charge. Other charges like simple battery or domestic assault may increase the misdemeanor conviction to a felony.

Consent and Prohibited Conduct

The voluntary and knowing consent of all parties to any sexual activity is crucial. “Consent” is defined as clear, unambiguous, voluntary, positive agreement between the participants, to engage in specific sexual activity. Additionally:
• Consent to sexual activity can be communicated in a variety of ways, but one should presume that consent has not been given in the absence of clear, positive agreement.
• Consent must be clear and unambiguous for each participant at every stage of a sexual encounter.
• Silence, or the absence of resistance, does not imply consent.
• A prior relationship or prior consent to sexual activity does not indicate consent to future activity.
• Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another.
• Consent can also be withdrawn at any time.
• A person cannot consent to sexual activity if that person is unable to understand the nature of the activity or give knowing consent because they are underage, asleep, unconscious, or mentally or physically incapacitated, either through the use of drugs or alcohol, because of a disability, or for any other reason.
• The manner of dress of the victim at the time of the offense does not constitute consent.
• Coercion, force, or threat of either invalidates consent.
• A person who initially consents to sexual penetration or sexual conduct is deemed not to have consented to any sexual penetration or sexual conduct that occurs after they withdraw consent during the course of that sexual penetration or sexual conduct.
When there is a lack of mutual consent about sexual activity or there is ambiguity about whether consent has been given, a student can be alleged to have, and be found responsible for having, committed sexual assault or another form of sexual misconduct.

Prohibited Conduct

The University’s Non-Discrimination and Non-Harassment Policy prohibits sex discrimination, which includes sexual harassment, sexual assault, and sexual exploitation; interpersonal violence, which includes dating violence, domestic violence, and stalking; and retaliation and intimidation.

Sexual Harassment

Sexual harassment, which includes sexual assault and sexual violence, is a type of sex discrimination prohibited by Title IX that may take many forms. Sexual harassment includes unwelcome sexual advances, requests for sexual favors and/or other physical, verbal or visual conduct based on sex.
Sexual Assault and Sexual Violence
Sexual assault and sexual violence are particular types of sexual harassment that include physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. Sexual assault and sexual violence include, but are not necessarily limited to, non-consensual sexual contact, non-consensual sexual penetration, and sexual exploitation.

Dating Violence

Dating violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; and where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship, the type of relationship, and/or the frequency of interaction between the persons involved in the relationship.

Domestic Violence

Domestic violence includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, a person with whom the victim shares a child in common, a person who is cohabitating with or has cohabitated with the victim, a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.

Stalking

Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others, or suffer substantial emotional distress.

Retaliation

Retaliation exists when action is taken against a complainant or participant in the complaint process that adversely affects the individual’s opportunity to benefit from the programs or activities; and is motivated in whole or in part by the individual’s participation in the complaint process.

Intimidation

Intimidation of any individual undertaken to prevent reporting of violations or cooperating with investigations is also prohibited.

Self-Defense and Mutual Combat Defenses

When a person is dealing with assault defenses, the most common defense is going to be self-defense. In that situation, attorneys are arguing to the judge or the jury that their client did assault the other individual, but they did so because they were acting in self-defense. That is the number one defense. Another common defense strategy is the mutual combat defense. Mutual combat is not something that is necessarily codified. It falls between self-defense and consensual contact. Attorneys will allege that the only reason that the defendant engaged in the assault or assaulted the alleged victim is that they were in a mutually combative situation. It basically means that both parties consented to the other party touching them, and were engaged in a physical fight. This relates to the consent defense, which alleges that the plaintiff consented to the touching. If an attorney could prove consent or mutual combat, that could serve as one of the mitigating factors for assault charges in Utah.

Accidental Contact

Accidental contact is another defense that is often used in assault cases. Whenever a person is dealing with an assault or an assault and battery in Utah, a person has to intend to touch the person. They cannot accidentally run into somebody and be charged with criminal assault. A person could have some civil liability in a negligent suit, but as far as criminally they have to intend to hit somebody. If it is an accidental touching, then it is not going to raise the level of criminal assault. Then, there is the intent of the individual when doing the touching. This defense does work, but it is rare. It essentially says that when the rude touching occurred the individual doing the touching did not intend to harm the other party.

Unreliability of the Plaintiff as a Mitigating Factor

Mitigating factors for assault charges in Utah often include the facts surrounding the assault or why the assault happened. For example, the court may ask if the defendant punched the plaintiff, or whether the plaintiff instigated contact, even if they did not hit the defendant first. In the second type of situation, a lot of judges may dismiss the case. Even if the judges do find a person guilty of the assault, if there is no injury, they might not jail the defendant because of the circumstances.

Substance Use

A plaintiff’s instigation and other factors like the presence of drugs or alcohol in the system of the alleged victim could be helpful in an individual’s case. For example, if the accuser says that the defendant walked up to them and slapped them, and that is the primary evidence is witness testimony, and it is revealed in cross-examination that the person who testified was high on cocaine at the time, they might be deemed unreliable. Things like that can be mitigating factors for assault charges in Utah and could even mitigate evidence, leading to the dismissal of said evidence. At the same token, the life of the accused can also be mitigated, especially if the accused is a veteran, has no record, has a mental health diagnosis, was going through meds, or has PTSD, bipolar disorder, or something along those lines.

Criminal Defense Lawyer

When you need legal help to defend against criminal assault charges against you, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah

84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

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Michael Anderson

About the Author

People who want a lot of Bull go to a Butcher. People who want results navigating a complex legal field go to a Lawyer that they can trust. That’s where I come in. I am Michael Anderson, an Attorney in the Salt Lake area focusing on the needs of the Average Joe wanting a better life for him and his family. I’m the Lawyer you can trust. I grew up in Utah and love it here. I am a Father to three, a Husband to one, and an Entrepreneur. I understand the feelings of joy each of those roles bring, and I understand the feeling of disappointment, fear, and regret when things go wrong. I attended the University of Utah where I received a B.A. degree in 2010 and a J.D. in 2014. I have focused my practice in Wills, Trusts, Real Estate, and Business Law. I love the thrill of helping clients secure their future, leaving a real legacy to their children. Unfortunately when problems arise with families. I also practice Family Law, with a focus on keeping relationships between the soon to be Ex’s civil for the benefit of their children and allowing both to walk away quickly with their heads held high. Before you worry too much about losing everything that you have worked for, before you permit yourself to be bullied by your soon to be ex, before you shed one more tear in silence, call me. I’m the Lawyer you can trust.