Redefining consent in sexual relationships
February 13, 2015
A bill aimed at clarifying the legal definition of consent, as it relates to sexual offenses, won unanimous approval in the Utah House of Representatives this week.
The House voted 75-0 to apply HB 74. It was introduced to the Senate Rules Sommittee on Wednesday and will work its way through the Senate.
Sponsored by Rep. Angela Romero, a Democrat who represents parts of Salt Lake County, the bill amends the definition of "without consent of the victim" to include situations when the accused knows the victim is unconscious or unaware. It also includes situations when the accused knows the victim is incapable of understanding what is happening or resisting.
"One of the reasons why the bill is amended is because in the previous language an individual who was unconscious had to prove they were unconscious and it’s kind of hard to do that," Romero said. "The goal is to ensure if an individual is unconscious, the burden falls on the state to prove it."
Under the bill, having sex with someone who is unable to consent to the act, including people who are unconscious or unable to resist due to mental disease or defect, would be considered rape. The language in the current law doesn’t make that distinction when victims are unable to consent.
Jessica Gray, a program director with the domestic violence organization Peace House, said the legislation should "strengthen the reach of the law to successfully prosecute rape cases and additionally combat victim blaming."
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"The burden of proof is really high in rape cases," Gray said. "How do we prove verbal consent was given or not, without a witness.
"This would redefine consent by clearly stating those victims were unconscious," she said. "My thoughts are that consent can be discussed, but in reality it’s simply up to both parties to agree. It can begin with consent and one party can change their mind, but an unconscious party does not have the capacity."
In rape cases, more often than not, the focus is placed on the victim and "victim blaming tends to be the result," Gray said.
"This bill could help us to combat that and help us to stop looking to the victim to prove consent," she said. "I think this is an important step in supporting the victims and showing them that we support and believe them. And that we recognize that when you are unconscious you can not choose what happens to you. We’ve taken that burden off of the victim."
While the bill unanimously passed in the House on its first reading, some legislators questioned the bill’s effect on married couples or couples in long-term relationships.
But married couples have the "same responsibilities and requirements to obtain consent to a sexual act," Gray said.
"Rape is rape regardless of the person’s relationship," she said. "We see that over and over again how many people are sexually assaulted in their relationships. Whether or not they are in a relationship does not have anything to do with whether they were raped.
An unconscious person with a wedding ring still has those same rights."
Matt Bates, Summit County prosecutor, said the changes would make "most cases easier to prosecute" when a sexual offense has occurred.
Summit County recently screened a case involving allegations of rape, but Bates said the prosecutors declined to bring a case.
"If we had these changes in place, there is a much greater likelihood we would have filed charges," Bates said, adding that the law "just seems reasonable."
"We need to be more respectful of other people in dating situations and social and drinking situations," he said. "If someone has become intoxicated or sick and they are not sure what they are doing, we need to respect that and not take advantage of it."
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