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Committee backs bill clarifying consent for sex

But drive for affirmative consent language hits roadblock

SHARE Committee backs bill clarifying consent for sex
Utah state Capitol building

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SALT LAKE CITY — Utah lawmakers unanimously passed legislation in 2015 to clarify the definition of sexual assault by explicitly stating that an unconscious person cannot give consent.

This year, Rep. Angela Romero, D-Salt Lake City, hopes to continue improving state law to protect survivors of sexual assault with HB213. However, her hope to do so with affirmative consent — meaning before an individual engages in any sexual activity there should be consent through words or conduct given by both parties — hit a roadblock.

Lawmakers from the House Law Enforcement and Criminal Justice Committee discussed a revised version of the bill on Tuesday, ultimately voting in favor of the legislation 8-1 and sending it on to the full House.

Romero said the substituted version of HB213 emphasizes and clarifies that consent to a prior sexual act between any party does not constitute consent to any future interactions. It also states that even if an individual gives consent initially during sexual activity, they can withdraw consent at any time.

She told the Deseret News that she ran the bill’s original language by a couple of people and realized there wasn’t enough consensus to get the votes this session — though she’s not giving up.

The original draft of the bill stated a sexual offense can occur when an individual engages in sexual activity with a victim they “reasonably should know” is “unconscious, unaware that the act is occurring, is unable to express consent due to alcohol, drugs or other intoxicants or is physically unable to resist.”

Romero said many of the players involved in this issue felt that this was already defined in some of the language in the 2015 bill.

This summer she plans to bring together an informal working group of prosecutors, victim advocates, law enforcement, defense attorneys and medical experts to move toward getting affirmative consent put into Utah law next year.

“Although this is not exactly what I want, it’s a starting point within this conversation with a commitment from everyone around the table that we’d work on this throughout the summer, spring and fall,” Romero said. 

Julie Valentine, a BYU nursing professor and certified sexual assault examiner, told the Deseret News that though the current legislation doesn’t accomplish all that she’d hoped, it does indicate that the state is evaluating consent language, which is substantial.

She said it’s important for society to take a step back and look at how we are teaching and defining consent in order to create a better outcome for survivors and society as a whole. Valentine acknowledged that process will probably take some time.

Valentine said affirmative consent makes the most sense, is what colleges are teaching and what evidence-based practice shows is the best thing.

“Someone who is unable to give consent is also usually impaired by alcohol, or drugs or by the trauma of the sexual assault,” Valentine said. “Moving toward affirmative consent helps and encourages us to move toward discussing healthy relationships and what those mean as well.”

She pointed to a research study of 5,758 sexual assault forensic medical examination records in Utah from 2010 to 2018 that found that 49% of victims reported “a loss of consciousness” during the rape.

“That speaks volumes to me. That means we have perpetrators who seek after vulnerable individuals who are unable to fully give consent,” Valentine said. “Research has shown us that very few men are going to commit sexual violence. The issue is that we have men who commit assault over and over again.”

Changing to affirmative consent would allow many more rape cases to be prosecuted, which would significantly decrease sexual violence rates, she said.

It’s a contentious topic, Valentine said, pointing out that she knew getting the original iteration of the bill passed would be a battle. She plans to be part of the conversations moving forward this summer.

To explain affirmative consent and why it is so important, Romero pointed to Elizabeth Smart’s experience of being sexually assaulted on an airplane last summer.

Smart, who became an advocate for sexual assault survivors after being kidnapped at age 14, reported last week that a man seated next to her on a flight began rubbing her inner thigh while she was asleep.

Smart, shocked and unsure what to do, froze.

Romero said affirmative consent would make prosecuting an incident like this easier.

When somebody such as Elizabeth Smart is put into a situation where they freeze up and the trauma of assault prevents them from responding and explicitly giving their consent, this would give us a way to prosecute the person who violated them, she explained.

Will Carlson, chief policy adviser at the Salt Lake District Attorney’s office, said during the Tuesday committee hearing that current law says someone “expresses a lack of consent,” which puts the burden on the victim.

Carlson explained that people’s brains are complicated. When someone experiences the trauma of sexual assault they may freeze up entirely and it would be “unrealistic for them to express a lack of consent.”

Romero said she thinks the informal work group will help clarify these issues as it will bring everyone to the table to discuss how to move forward, how to classify consent, how to protect victims who freeze up due to the trauma, and hopefully reach a consensus on affirmative consent.

“I think most people in academia are there because of what we’ve seen happen on college campuses. I think I’m there. I think victims advocates are there. I just think not everyone in the community is there,” Romero said.

Romero said the legislation discussed Tuesday explicitly emphasizes that just because a person consents one day doesn’t mean they do for future sexual encounters. She said current law is a bit vague in this regard and that it should be sharpened.

Carlson said this substitute is where all the various stakeholders involved in the conversation were able to reach a consensus.

Rep. Kim Coleman, R-West Jordan, pushed back on the bill, questioning whether the legislation is necessary. She said that while she doesn’t disagree with the premise, she expressed doubt that a judge would not already consider this sexual assault.

Carlson noted cases pertaining to consent given at one point and then revoked later are frequently filed in offices across the state.

“Those are fought and some result in convictions and others in acquittals. This will make it more explicitly clear that those can result in convictions,” Carlson said.

Coleman ultimately voted in favor of the legislation.

Jenn Oxborrow, executive director of the Utah Domestic Violence Coalition, praised Romero for her efforts.

Though she, too, acknowledged that the coalition would have liked to see additional language, Oxborrow told the Deseret News that the substituted bill still gives prosecutors a clearer standard.

The FBI reports that Utah ranks ninth in the nation for reported rape — a fact made more concerning given that rape largely goes underreported, Oxborrow said. She believes HB213 would help counter this “concerning rate and trend.”

Oxborrow said the Utah Domestic Violence Coalition will be participating in the discussions taking place this summer.