Can a position of special trust defeat claims about lesser sexual offense statutes? Calder v. State Explained

In Calder v. State, the Utah Court of Appeals examined whether a therapist could successfully claim ineffective assistance of counsel for failing to advise him about Utah’s unlawful sexual conduct statute when he occupied a position of special trust with his victim.

Background and Facts

Jason Calder, a therapist in his forties, engaged in sexual conduct with a sixteen-year-old client at a residential treatment facility. The State charged him with seventeen felonies, including rape, object rape, forcible sodomy, and forcible sexual abuse. On his attorney’s advice, Calder pled guilty to five charges in exchange for dismissal of the remaining twelve counts. He later filed a post-conviction relief petition, claiming his attorney was ineffective for not advising him about Utah Code section 76-5-401.2, which criminalizes unlawful sexual conduct with sixteen- and seventeen-year-olds as only third-degree felonies.

Key Legal Issues

The central issue was whether Calder’s attorney rendered constitutionally ineffective assistance by failing to investigate and advise about the potentially applicable lesser statute. Calder also raised constitutional claims based on equal protection and statutory vagueness, arguing he was treated more harshly than similarly situated defendants.

Court’s Analysis and Holding

The court affirmed the dismissal, finding no ineffective assistance. Under Utah’s consent statute, sexual conduct is nonconsensual as a matter of law when the defendant occupies a “position of special trust” with a victim under eighteen. Since Calder was the victim’s therapist, he held such a position, making nonconsent legally established regardless of the victim’s actual consent. The unlawful sexual conduct statute explicitly excludes circumstances “amounting to” rape or other serious sex offenses. Because nonconsent was present as a matter of law, Calder’s conduct fell within the more serious statutes, not the lesser one.

Practice Implications

This decision highlights the importance of understanding how Utah’s sexual offense statutes interact with positions of special trust. When challenging plea counsel’s performance, practitioners must demonstrate both deficient performance and prejudice—specifically, that competent counsel would have achieved a better outcome and that the client would have rejected the plea. The court noted a potential statutory conundrum where certain provisions of the unlawful sexual conduct statute may create a “null set,” but emphasized that ineffective assistance claims require specific showings of what counsel should have done differently.