Paul Cassell and Julie Valentine: Utah should close a gap in its sexual assault provisions

The law should provide for cases where the victim neither refuses nor consents.

(Francisco Kjolseth | The Salt Lake Tribune) The Utah Senate works on March 5, 2021.

Recently published research by one of us (Valentine) establishes that only one in 10 sexual assault cases in Salt Lake and Utah counties end in a conviction. To be clear, these are all sexual assault cases in which the adult victims had sexual assault medical forensic exams with collected rape kits and wanted to talk to police to prosecute their cases.

While the causes of this extraordinarily low conviction rate are manifold, one cause is a gap in Utah’s criminal code. During the upcoming legislative session, the Utah Legislature should close that gap by enacting a new criminal statute covering situations where a defendant forced sex on a victim in circumstances where he knew that he lacked affirmative consent to proceed.

The gap arises because Utah’s criminal code lacks appropriate intermediate criminal provisions between a verdict of guilty of first-degree felony rape and a verdict of not guilty. The crime of rape in Utah is defined as “sexual intercourse with another person without the victim’s consent.” In another provision, the Legislature has helpfully clarified that an act of sexual intercourse is without the consent of victim when “the victim expresses lack of consent through words or conduct.”

While a number of other states have rape provisions comparable to Utah’s, these provisions have recently been criticized because they allow defendants to escape criminal liability for sexual penetration of an unconsenting victim through the simple expedient of avoiding awareness (or avoiding leaving proof of awareness) that the victim was not consenting. And yet, this approach is no longer consistent with general societal understandings and national sexual assault prevention guidelines.

For example, defining sexual consent as requiring an affirmative expression of willingness on the part of each participant has become commonplace in college campuses, such as in the student codes at many universities. Additionally, teaching about bodily autonomy and importance of consent are part of our K-12 educational guidelines on healthy relationships.

In light of the consensus that is developing around this current understanding of what consent means, some states currently have such “affirmative consent” requirements in their criminal codes defining sexual assault. At least three states (Wisconsin, Vermont, and New Jersey – and perhaps more, depending on how one reads the caselaw) already clearly have full criminal prohibitions of sexual acts without affirmative consent. For example, a long-standing Wisconsin statute provides that sexual penetration without consent is a felony and defines consent as meaning “words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact.”

Utah should adopt a criminal prohibition of sexual acts without affirmative consent. Utah could simply adopt a provision like Wisconsin’s, which in turn is similar to proposals that rape law reformers have suggested should be adopted more broadly. Specifically, Utah should add to its criminal code a prohibition of sexual intercourse or penetration for purposes of sexual gratification, without words or overt actions by the person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or engage in sexual acts.

Such a provision would help improve Utah’s low sexual assault prosecution rate. There are, at least, three commonly recurring situations where Utah’s rape laws do not provide sufficient protection: sleeping victims, intoxicated victims and fearful victims. For example, if a man forces sexual intercourse on a woman who is immobilized by fright, she has not consented to intercourse simply by virtue of not physically resisting.

And yet, under current Utah law, unless prosecutors can prove beyond a reasonable doubt that the defendant knew the woman was not consenting, the jury is required to return a verdict of not guilty of rape — and thus the defendant is guilty of no crime at all. This gap in our statute contributes to cases not being referred by police to prosecutors and prosecutors not filing charges in cases as they consider the unlikelihood of a guilty verdict.

Today many of the cases that cannot be successfully prosecuted in Utah fall into this gap in the criminal code. It is time to close that gap.

Paul Cassell

Paul G. Cassell is the Ronald N. Boyce Presidential Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah.

| Courtesy BYU Julie Valentine

Julie Valentine is the associate dean of and a professor at the College of Nursing at Brigham Young University.