“Is Sex With An Unconscious Person Always Rape?” Utah Lawmakers Wonder

The Frisky


At the center of any discussion about rape is the issue of consent. Did both (or more) parties involved consent to having sex? Was consent given under the influence of drugs or alcohol? Could both people actually give consent or was their ability impaired because of drugs, or alcohol, or, you know, lack of consciousness? That last point is being hotly debated in Utah, where lawmakers are at odds over the language in a new bill which would expand Utah’s criminal code for sexual assault. Rep. Angela Romero, D-Salt Lake City, proposed the bill because she says the current law might allow some rapists to get away with their crimes because of what the law currently says in regards to consent. Her bill proposes removing the following language in bold:

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’s goal is for the law to clearly reflect that an unconscious person by definition cannot express consent or a lack of consent. “These changes are improvements for both the prosecution and defense,” she said.

In addition to removing this line, the bill proposes adding the following sentence:

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.

Republican lawmakers took issue with the proposed changes, especially the removal of consent when someone is unconscious, seemingly because they want to protect a husband’s right to marital rape. “It looks to me now like sex with an unconscious person is by definition rape,” Rep. Brian Greene, R-Pleasant Grove, 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.”

Uh, yeah, exactly. Because that would, in fact, be rape.

Luckily, despite Greene’s concerns about defining sex with an unconscious person as “rape,” he and the House Judiciary Standing Committee voted unanimously in favor of the bill, a rare across-the-aisle victory. [Fox 13]

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