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A Cedar City wife told police she regained consciousness one night and found her husband having sex with her. She started screaming.
"He believed that because he did not hold her down while she was fighting, that it wasn't rape, even though she would accuse him of rape after it took place," a police investigator wrote.
The wife noted "that she has never given him permission to have intercourse with her while unconscious."
Iron County prosecutor Troy Little decided to file charges and the husband was arrested Feb. 19, 2014.
"He made some admissions that were somewhat damning," Little said. "I think he believed because he was her husband, that was fine."
Prosecutors say this kind of rape case — in which victims cannot consent because they are incapacitated — is rare. Such rape charges between spouses are even rarer.
But they happen, and the Cedar City case resonates amid a debate at Utah's Capitol this week about the meaning of consent in sexual-assault cases.
Rep. Angela Romero, D-Salt Lake City, is sponsoring legislation — HB74 — meant to clarify and simplify Utah's definition of consent to sexual intercourse. The bill would remove two snippets of text from current law that advocates and prosecutors say confuse the issue.
The law says rape charges can be filed in cases where "the victim has not consented." Some believe that language requires a definite "no" from a victim — even those who are unconscious. Romero's legislation instead would require prosecutors to prove an accused rapist knew their victim was incapacitated.
Nationally, a few states have tackled revisions of their consent laws in the wake of campus rape scandals.
California recently passed a "yes means yes" measure with requirements for colleges investigating reports of sex assault.
Texas law, on the other hand, still includes a provision similar to Utah's statute that seems to require consent from an incapacitated person.
Romero hopes her bill will change that. The legislation would explicitly prohibit sex with an unconscious person or one incapacitated by drugs, medication, head injury or mental disability.
"At the end of the day," Romero said, "if someone's unconscious or they're a vulnerable adult, then the logical answer is: Don't try to have a sexual relationship with them."
Still, some lawmakers tripped up this week trying to parse how the bill might affect longtime partners or husbands and wives. Isn't there a legal understanding of "implied consent" in those cases?
Rep. Keven Stratton, R-Orem, asked if marriage is a mitigating factor in cases against accused rapists.
"Are we aware of any circumstance in which consent is assumed?" Stratton asked at a House Judiciary Committee meeting Tuesday.
And Rep. Brian Greene, R-Pleasant Grove, ended up apologizing this week after he wondered aloud if sex with an unconscious person is rape "in all instances."
On Thursday, Romero tweeted that she had accepted Greene's apology.
The scenarios that tangled legislators in their words this week — sex between husbands and wives when one partner is unconscious — are unusual.
"Out of a thousand cases, there might be one or two," said the Utah Prosecution Council's Donna Kelly, who was a Utah County prosecutor for 24 years.
But for Little, who handles dozens of sexual-assault cases a year, it's simple.
"It just seems logical: If someone is unconscious, they cannot consent," he said. "The idea that because you've had sex once, that carries over? That's an archaic way of looking at marriages and a misogynistic view of sex."
But his case was not so simple.
The couple had separated. A recovering addict, she was living in a southern Utah women's shelter. The couple had six children between them — ages 6 to 17. In late 2013, she went to the Cedar City Police Department to report that her husband had raped her while she was unconscious — in 2008.
It was something of a pattern for the couple.
"She said that during that time she was abusing drugs that would cause her to lose consciousness," the reporting officer wrote. "She said that there have been multiple occasions when she was raped. She described the incidents, saying that she would regain consciousness and find that [her husband] has had intercourse with her."
Little filed charges of forcible sodomy and the husband was arrested last February. Then the wife disappeared.
"It was very difficult for us to pull this together," said Little.
Eventually, the wife was arrested. Little visited her in jail. The deputy county attorney called in a victim advocate and the Division of Child and Family Services to talk to the traumatized woman.
But, by that point, she wanted nothing to do with the rape case.
"We tried every possible way to get her to move forward in the case," Little said. "But she refused to talk to me and the investigator. She said it didn't happen."
On May 14, Little filed papers to dismiss the charges.
His case didn't hinge on the clause Romero hopes to strike from Utah law, but Little hopes the change will make things easier for prosecutors.
"You have those people who may say there's implied consent," he said. Tweaking the law "probably makes it easier. It does help."