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Utah lawmakers question if sex with an unconscious person is rape

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UPDATE: Rep. Brian Greene is now clarifying the comments he made Tuesday on the sexual assault bill.

Wednesday he sent Fox 13 this statement:

"There are comments I made in a committee meeting yesterday for HB74 that have been taken out of context and have allowed my intentions to be misinterpreted. I’m sorry for any unintended pain that my statements have caused.

I abhor sexual assault under any circumstances, including within marriage. Currently, under Utah law, sex with an unconscious person without consent is rape. I was concerned about a change in statutory language that would remove the element of consent and might have some unintended consequences.  I was attempting to clarify the issue through the committee’s discussion.

From the beginning I supported the intent of this bill and voted for it as it passed unanimously out of committee.  I strongly support closing any loopholes that allow offenders to evade prosecution and I believe this bill does that."

SALT LAKE CITY -- Defining when a person gives consent to sex and when they don’t is the mission behind a new bill that generated heated debate on Utah’s Capitol Hill Tuesday afternoon.

Rep. Angela Romero, D-Salt Lake City, said the wording of the current law might be letting some rapists get away with the crime.

“These changes are improvements for both the prosecution and defense,” said Romero, during a meeting of the House Judiciary Standing Committee.

Romero’s proposal, HB74, would alter the language of Utah’s criminal code for sexual assault.“I’m not trying at all to justify sexual activity with an unconscious person. It’s abhorrent to me, but do we as a body a legislative body, want to make that rape in every instance?” -Rep. Brian Greene, R-Pleasant Grove

The first change is to the following sentence: “The victim has not consented and the actor knows the victim is unconscious, unaware that the act is occurring, or physically unable to resist.”

Romero wants to remove “The victim has not consented.”

The second change would be to add a line to this clause: “The actor knows that as a result of mental disease or defect, or for any other reason, the victim is at the time of the act incapable either of appraising the nature of the act or of resisting it.”

“At the end of the day, when we took out that language, if somebody is unconscious you probably shouldn’t attempt to try to have sexual relations with them,” Romero said.

The changes drew some concern from lawmakers, especially when it came to the removal of consent when someone is unconscious.

“I’m not trying at all to justify sexual activity with an unconscious person. It’s abhorrent to me, but do we as a body, a legislative body, want to make that rape in every instance?” asked Rep. Brian Greene, R-Pleasant Grove.

Green explained he did not like the idea of defining rape as having intercourse with an unconscious person.

“It looks to me now like sex with an unconscious person is by definition rape,” Greene said. “I hope this wouldn’t happen, but this opens the door to it — a individual has sex with their wife while she is unconscious, or the other way around if that is possible, but uh a prosecutor could then charge that spouse with rape.”

Advocates of the bill, however, pointed to other cases.

The committee heard from a Salt Lake City news anchor, who testified about a sexual assault she suffered at the age of 18.

“If I were your daughter, your niece, a friend, how would you want this law written?” asked Kim Fischer.

One of the attorneys who helped Romero draft the bill’s language said the state’s current law puts far too much burden on the victim.

In 2008, a Cache County rape case was dismissed after the judge found the prosecution could not “prove an expression of lack of consent through words or conduct.”

“So, she woke up to the event happening her, but because of that statute, that statutory language, the case was dismissed,” said Donna Kelly of the Utah Prosecution Council.

Despite Greene’s concerns, he and the committee voted unanimously in favor of the bill.

“How can you express anything when you’re unconscious?” Kelly questioned. "It needs to change."

21 comments

  • One paying too much tax

    Hey stupid lawmakers if a person is unconscious how can they consent to any sexual activity. If the consented then passed out then the consent is no longer valid.

  • Lauren Ashley Scharr

    im GONNA say this exactly the way my mind thought it and if I offend I’m sorry, but, are you Fing kidding me? Seriously?

  • Dominique Storni (@DominiqueStorni)

    The fact that this is even being debated… brings shame to Utah.. to HUMANITY.

    C’mon, brethren… these victims are someone’s mothers, daughters, sisters, aunties, grannies, wives. They could be YOUR family.

    “Inasmuch as ye have done it unto the least of these….

    #PullaBoehner

      • miles (dave)

        this is a valid debate point. if i understood your reasons for your comment being (that your upset that sleeping with unconscious people exists in the stereotypical way where some guy has sleeping with a unconscious girl he dosnt know very well) then i dont blame you for wishing we didnt have to have this discussion about it or make laws about it.

        however although i have my own opinions about how conscious my partner is when i have sleep with her i can respect that there are varying degrees of consent between any two people (you and me, you and your wife, you and your neighbor, you and the crazy child hurter over there, you and a medical physician caring for you while your unconscious and bleeding to death from a wound around your thighs) about weather or not and how much and where and with what its ok to touch me while i cant give good feedback, everyone has there own feelings about it, for each and every different situation.

        in my opinion i think forcing sleeping with me while i can suffer and very clearly state that i object, and forcing sleeping with and abusing my unconscious body are two different violations, one worse than the other. there is also another degree of violation if i am conscious but not able to respond to dispute the actions, and the laws and punishments need to reflect the differences

        as a society we need to have this discussion because it exists and we need to come together and decide when it happens what should we do about it in all the forms it can come in. if we dont make good laws about it than we risk not exacting the best justice possible that both the victim and the violator deserve, and no the sentencing for every crime should not be the worst punishment possible, the punishment needs to fit the crime.

        post script
        i changed some of the words i think sometimes my posts dont post due to a automatic filter for some words.

      • NayN

        Replying to your comment below (it didn’t have a “reply” button). I guess it does still need to be debated if people still feel this way. My jaw is just dropped that it’s the case. If you haven’t gone through the experience of being violated by a partner in your sleep, and how that feels, maybe there’s a doubt in your mind. Trust me. Regardless of length of relationship, your body should always remain your own, and not a tool for others to use for their gratification.

      • miles (dave)

        to nyan

        i can respect that you would have a better educated opinion about being violated in your sleep, i dont blame you at all for feeling violated. (i have a family friend couple who the man who while he is sleeping gropes his wife who eventually wakes up to the occurrence, and although i havent been there i have had conversations with her about what she goes through)

        i feel that there are differences between things like what i explained above, and if he did it on purpose, and if she never did wake up during the occurrence, and him doing it on purpose both with and without consent, and any combination of the above.

        all of these things are different and some options are more violent and horrible than others. i think its worthy of our time to talk about it and have us all come to a conclusion what is an appropriate response to all of the possible occurrence that could happen. while some people based on there comments seam to think its a waist of time.

        while for good and honest people like you and me its easy to just say do whats right and dont violate the laws and you wont have a problem with the law. but we also live in a world where some people who (in you and my eyes would be innocent of any wrong doing) would be made guilty because he by the letter of the law violated the law. you and me recognize its important to live by the spirit of the law (obey the law by the intent of the law) but we live in a world where some people play lawyer ball and if the laws are not written using the right words then our justice system can produce a unjust result.

    • angela52689

      It’s not just “mothers, daughters, sisters, aunties, grannies, wives.” It’s also fathers, sons, brothers, uncles, grandpas, husbands. Women are not the only victims.

    • SecularGovernmentForEveryone

      I find it deeply, deeply disturbing that you quote any religious text in regard to discussion of the law.

  • Jahnre

    Whoever wrote or edited this garbage needs to be fired. Unreadable. Also every Republican Utahn deserves to be raped.

  • CIAR

    My head hurts from the stupidity of these lawmakers. Seriously? Guess if I’m unconscious, its my fault, therefore if someone was to commit a sexual act on me, while UNCONSCIOUS, that must be my fault to. Thanks. Good to know.

    • ANOTHERBOB

      It never hurts to know a little about the character of the individual(s) you associate with. Your concern is moot if you onluy associate with decent people.

  • basnsas

    I think the bigger issue here is how a judge or jury could possibly find someone innocent in the first place. What has become of our society when we allow little technicalities to cloud the obvious? This is ridiculous the debate must be had. I blame the absurd judges and pathetic attornies that have led us down this path.

    • miles (dave)

      i dont think the question is did the person violate the law, and a moral boundary. the question is also not should we punish the person for it. the question is what did the violator do and how bad is it. the question is. is it just as bad and should the punishment be the same if someone abuses a persons body while that person has no idea its happening. as if the person was perfectly conscious and making it very very clear that contact like that was not wanted.

      id say its appropriate to deliver a much greater punishment to someone who continued to violate someone while that person begged for them to stop than the person who violated someone who the victim had no idea the violation was happening. id say both need punishment but both dont deserve the same, one violator is more heinous and cruel, the more heinous deserves a greater punishment the other still needs a punishment but lesser, the punishment needs to fit the crime.

      this is why we are looking into changing how the law is written.

    • SecularGovernmentForEveryone

      Right? Maybe I ought to be thrown in prison because my girlfriend passes out briefly from hyperventilating out of passion.

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