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Bill that supporters say would fill gap for rape victims in Utah law fails in committee

HB78 would have created a third-degree felony of sexual conduct without affirmative consent.

(Rick Egan | The Salt Lake Tribune) Rep. Angela Romero, D-Salt Lake City, pictured in 2019, proposed a bill, HB78, in the 2021 general session that supporters say would close a gap in how sexual assault cases are prosecuted in Utah. It failed to pass out of committee on Monday, Feb. 22, 2021.

While supporters say a defeated bill supported by Rep. Angela Romero would fill a gap in Utah law that lets some sexual assault victims to fall through the cracks, opponents argue that it could have unintended consequences.
After hearing debate Monday on HB78, which would create a third-degree felony offense of sexual conduct without affirmative consent, the House Law Enforcement and Criminal Justice Committee narrowly voted not to send it on to the House.
With less than two weeks left in the current legislative session, Romero said she plans to bring HB78 back next year.
“Change is hard,” Romero told committee members before they voted Monday. But “sexual assault is underreported, underinvestigated, underprosecuted and underconvicted in Utah and across the nation,” she said.
Her bill is “not going after that naive boy,” who some opponents of HB78 said they worried would get swept up in her proposed change to Utah’s criminal code. Rather, Romero said, “We’re going after that individual ... who knows what they’re doing, and they know how to manipulate the law.”

What HB78 would create

In order for someone to be convicted of first-degree rape in Utah, a prosecutor has to prove beyond a reasonable doubt that the defendant knew the victim did not give consent, said Paul Cassell, a law professor at the University of Utah and former federal judge.
Those cases are tough to prove though, Cassell said, and prosecutors don’t really have lesser offenses they can turn to in charging this serious crime.
HB78, which is modeled after a law Wisconsin has had in place since 1975, provides another level, Cassell said. According to the bill, a person commits sexual conduct without affirmative consent, if the person “intentionally or knowingly engages in sexual conduct with another individual without that other individual’s affirmative consent.”
Affirmative consent is defined as “words or actions by an individual who is competent to give informed consent, indicating a freely given agreement to have sexual conduct at the time of the act.”
The bill also states that “affirmative consent to one sexual act, or prior consensual sexual activity ... does not necessarily constitute affirmative consent to another sexual act.” And it “may be withdrawn through words or conduct at any time before or during sexual activity.”
The third-degree felony created in this bill applies to adults. A person under the age of 18 would be charged with a class A misdemeanor.

Who the bill would help

This bill would fill a gap for victims who can’t give consent, including those who are asleep, intoxicated or who “freeze” and can’t react “because of the fear of the trauma that’s happening to them,” according to supporters.
“My last rape case was a situation just like this, where she was so incapacitated that she could not have given consent. The defendant argued that maybe she just didn’t remember, and he was acquitted on that alone,” said Crystal Powell, an attorney with the Utah Crime Victims Legal Clinic who supports HB78.
In Utah, one in three women report being sexually assaulted in their lifetime, and one in six report having been raped. At the same time, Utah has low prosecution rates, according to Julie Valentine, associate dean of undergraduate studies and research at Brigham Young University’s College of Nursing and a member of Wasatch Forensic Nurses. Valentine said her research shows that less than 15% of these types of cases are prosecuted in Salt Lake and Utah counties.
“Over 80 percent of the survivors that we work with do not report to law enforcement,” said Sonya Martinez-Ortiz, executive director of the Rape Recovery Center in Salt Lake City. Many people don’t want to go through the trauma that’s involved in reporting, she said or they fear being blamed or shamed.
“Of those who do report, the vast majority do not see their perpetrator even charged, let alone convicted within the criminal justice system,” Martinez-Ortiz said.
In 2019, the state Legislature passed a law allowing the Utah Attorney General’s Office to review cases that had been declined or not prosecuted by county attorneys. A lot of those cases that weren’t initially pursued would be covered by Romero’s bill, said Dan Strong, a prosecutor with the attorney general’s office.

HB78 would help, Strong said, by shifting “the focus from the victim having to alert the aggressor that they do not want to do the act, to the aggressor having responsibility to check to make sure that the victim has consented before moving forward.”
The bill would also “provide valuable tools to law enforcement and prosecutors seeking to hold those who commit sexual assault accountable,” said Nate Mutter, vice chair of the Utah Law Enforcement Legislative Committee.

Concerns about HB78

Cara Tangaro, who previously prosecuted sex crimes at the Salt Lake County District Attorney’s Office and is now a defense attorney, said she opposed the bill, partly because Utah’s current criminal code already covers victims who are unconscious and can’t give consent.
Romero ran the bill that added that section to state law. The problem is, Romero said, “we’re still seeing people not prosecuted for sexual assault.” She said she sponsored HB78 this year because “I don’t feel like we’re doing enough.”
Rep. Francis Gibson, R-Mapleton, said he worried about cases where someone is falsely accused, or the possibility that someone could withdraw consent after the fact due to “regret” or “remorse.” Rep. Matthew Gwynn, R-Farr West, gave an example of a married couple who engaged in a sexual act that one person didn’t necessarily want to do. Gwynn said he was concerned Romero’s bill could open up prosecutions in those types of situations.
“We’ve already had this conversation,” Romero said, referring to when she ran her bill addressing unconscious victims. That discussion “was a slippery slope,” she said, adding that hypothetical was not likely.
Richard Mauro, executive director of the Salt Lake Legal Defender Association, said he thought the main problem with the bill is that affirmative consent can be “interpreted too broadly” and “can apply in a number of circumstances.”
“There’s an education piece to this,” and affirmative consent might be easier to understand in a campus or military setting than in the general public, said Tom Ross, executive director of the Utah Commission on Criminal and Juvenile Justice.
Affirmative consent is already taught in Utah schools, and Rep. Marsha Judkins, R-Provo, said people understand the concept more than some may think.
“My kids know what affirmative consent is,” Judkins said.
Michael Zimmerman, former chief justice of the Utah Supreme Court, said he opposed the bill, adding that the American Law Institute and American Bar Association have not supported moves toward putting affirmative consent in state laws.
Ed Brass, a criminal defense lawyer in Utah, had a situation where a judge ultimately threw out a “bad case,” he said, but by that point, his client had already been “dragged through the press.”
“That is the case that might fall under the auspices of this bill, and it never should have been filed,” but “has a real impact,” Brass said.
Opponents said the bill could “capture the naive and inexperienced,” while some committee members who support it said they’ve witnessed how sexual assault survivors struggle to get “justice.” Passing HB78 would send a message to victims, saying, “We hear you. We believe you. And we are going to prosecute this case and then go forward with it,” said Rep. Andrew Stoddard, D-Sandy, who’s a prosecutor.
“I think this is a bill that is absolutely a step in the right direction that we need,” he said. “We’ve seen a number of bills dealing with consent this session, and it’s something that I think we as a society are failing at.”
After an hour-long debate, the committee voted 5-6 to send the bill to the House floor, with Reps. Paul Ray, R-Clearfield, Sandra Hollins, D-Salt Lake City, Judkins, Stoddard and Romero in favor of advancing HB78.
Editor’s noteThose who are experiencing intimate partner violence, or know someone who is, are urged to call the Utah Domestic Violence Link Line, 1-800-897-LINK (5465), or the Utah Rape and Sexual Assault Crisis Line, 1-888-421-1100.
Becky Jacobs is a Report for America corps member and writes about the status of women in Utah for The Salt Lake Tribune. Your donation to match our RFA grant helps keep her writing stories like this one; please consider making a tax-deductible gift of any amount today by clicking here.
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