Readings — From the June 2015 issue

While You Were Sleeping

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From a debate in February in the Utah State Legislature about House Bill 74, which specifies that consent for sexual contact cannot be given in circumstances in which a person “knows the victim is unconscious or unaware” or otherwise “incapable of understanding or resisting the offense.” Brian Greene is a Republican representative in the state legislature. Donna Kelly is an attorney with the Utah Prosecution Council. The bill passed unanimously.

brian greene: I appreciate the sponsor bringing this bill forward. I did share a concern with her, and I want to make sure that everyone understands this, or if I don’t understand it maybe I could be enlightened on this. But it seems to me that the change on line fifty-two — and this is not a pleasant thing to even envision — that the act of having sex with an unconscious person is now rape. It is essentially a strict liability standard. If you have sex with an unconscious person, you are committing rape. Because we’ve taken any reference to consent out of that. Prior consent, implied consent. Consent is no longer a factor. And if that’s a policy decision we want to make, then we can do that. But I want to make sure that I’m understanding this correctly, because it looks to me now that sex with an unconscious person is by definition rape. There’s no defense to it.

donna kelly: Subsection five of Utah’s sexual-consent statute is the only subsection that requires a prosecutor to prove that the victim didn’t consent and that these other circumstances exist, which are impossible to prove if the victim is unconscious. You cannot give consent to sexual activity if you’re unconscious. So removing that consent language clarifies that our legislative intent is to protect extremely vulnerable people from assault.

greene: So my interpretation is correct, that sex with an unconscious person is rape?

kelly: Yes.

greene: And that’s the concern that I have. I don’t know that we want to go there as a policy. I certainly understand with these vulnerable victims. I’m just wondering if there’s a better way to approach that. For instance, I hope this wouldn’t happen, but this opens the door to it: an individual has sex with his wife while she is unconscious — or he, the other way around if that’s possible, I don’t know — but a prosecutor could then charge that spouse with rape. Theoretically. I’m not interested in whether the wife would have to come forward and make that allegation. I’m just saying, under that scenario, that would constitute rape.

kelly: This statute prescribes that people cannot give consent when they are unconscious.

greene: That makes sense in a first-date scenario. But to me, not where people have a history of years of sexual activity. It takes away the defense of implied consent or prior consent. Does it not?

kelly: Consent is a decision that has to be made at the time of the act. It cannot be — for example, if someone said, “I will have sex with you on Friday night.” But that person winds up in a car accident, unconscious in a hospital on Friday. The other person can’t come to the hospital and have sexual intercourse with that person because they previously gave consent. The circumstance that you’re talking about is covered by subsection one, which is that the wife has consented to that type of activity.

greene: The subsection that says the victim expresses lack of consent through words or conduct? What I’m trying to determine is if there is any scenario under which a person could have sex with an unconscious person that would not constitute rape under this change.

kelly: If they factually had given consent to that activity, a prosecutor would not file that case.

greene: So in other words, they would have to say, “You have an open-door policy. Anytime I’m unconscious, you can have sex with me.” That would be the only circumstance?

kelly: It would be up to a judge and jury to decide —

greene: Okay, right. I just think that is a sweeping change and it may result in a lot of unintended consequences. I certainly understand what the sponsor is trying to do, I’m supportive of that, but I think we’re potentially opening the door.

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