Does touching the clitoris inside the labia constitute penetration under Utah's object rape statute? State v. Black Explained

Background and facts

At a Labor Day family reunion in 2017, Raymond Merle Black restrained his fifteen-year-old niece on a picnic bench, fondled her breasts, and digitally penetrated her clitoris inside her labia. He was charged with object rape under Utah Code § 76-5-402.2(2) and forcible sexual abuse under § 76-5-404(2). Before trial, Black moved to dismiss the object rape count, arguing that the clitoris is not a “genital opening” within the statute’s meaning. The district court denied the motion, bound by State v. Heath, 2019 UT App 186, 453 P.3d 955, and a jury convicted Black on both counts. He was sentenced to concurrent terms of five years to life on Count 1 and one to fifteen years on Count 2.

Key legal issues

Black raised five principal issues on appeal: (1) whether sufficient evidence supported the object rape conviction absent proof of vaginal-canal penetration; (2) whether Heath should be overruled as clearly erroneous or as producing absurd results, unconstitutional vagueness, or equal protection violations; (3) whether the district court abused its discretion in excluding defense expert testimony on female anatomy; (4) whether the court erred in denying a lesser-included-offense instruction on forcible sexual abuse; and (5) whether the State’s failure to preserve body camera video violated due process under State v. Tiedemann and State v. DeJesus.

Court’s analysis and holding

The court declined to overrule Heath, finding its reasoning solid, persuasive, and consistent with the national consensus that penetration of the external genital organs—including contact with the clitoris inside the labia majora—satisfies a statutory penetration element. The court traced Heath‘s lineage to State v. Simmons, 759 P.2d 1152 (Utah 1988), which first held that entry between the outer folds of the labia constitutes penetration. It rejected Black’s vagueness argument, explaining that Heath actually clarifies the line between object rape and forcible sexual abuse rather than blurring it. It rejected the equal protection and uniform operation challenge because the statute draws no sex-based classification—any differential treatment reflects biological anatomy, not impermissible discrimination. The court upheld exclusion of the defense expert because the expert’s proposed testimony amounted to a legal opinion on the meaning of “genital opening,” a term already defined by controlling precedent, making the testimony more likely to confuse than assist the jury. The lesser-included-offense instruction was properly denied because the victim testified exclusively to clitoral touching, leaving no rational basis to convict of the lesser offense while acquitting of object rape. Finally, Black’s due process claim regarding the lost body camera footage failed at the threshold showing: his assertions that the video would have been exculpatory were speculative and did not identify how the footage would have contradicted the State’s evidence.

Practice implications

Practitioners challenging the admissibility of expert testimony in cases governed by settled legal definitions should anticipate that courts will exclude opinions that effectively invite the expert to redefine a statutory term already construed by appellate precedent. On preservation of exculpatory evidence claims, counsel must go beyond arguing that lost evidence “could have been beneficial” and must proffer specifically how the evidence would have contradicted the State’s proof. Finally, any effort to overturn a prior Court of Appeals panel decision requires demonstrating clear error or materially changed conditions—policy disagreements and competing statutory interpretations are insufficient under horizontal stare decisis.