Utah Lawmaker Questions Whether Sex With An Unconscious Person Is Rape ‘In Every Instance’

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Photo: The Salt Lake Tribune 

Editor’s note: This story was published Feb. 4, 2015. Rep. Brian Greene apologized the next day for causing unintended pain with his comments, and Rep. Angela Romero’s bill later passed and was signed by the governor.

If someone can’t consent, it’s rape.

A Utah measure seeking to make that legal clarification won early approval in a state legislative committee, but some lawmakers qualified their support, questioning whether the law would designate sex with an unconscious spouse as rape.

“If an individual has sex with their wife while she is unconscious … a prosecutor could then charge that spouse with rape, theoretically,” said Rep. Brian Greene, R-Pleasant Grove.”That makes sense in a first date scenario, but to me, not where people have a history of years of sexual activity.”

Others disagreed. If a person is unconscious, having sex with him or her “is rape. Period. End of story,” said Rep. Brian King, D-Salt Lake City. “Let’s make the statute clear. Let’s not dance around it.”

According to prosecutors, “consent is a decision that has to be made at the time of the act,” said attorney Donna Kelly from the Utah Prosecution Council. “You cannot give consent to sexual activity if you’re unconscious.”

Utah’s current law doesn’t adequately protect victims, advocates and others told the House Judiciary Committee at the Capitol on Tuesday.

“This is something that’s been a long time coming,” bill sponsor Rep. Angela Romero, D-Salt Lake City, said after the meeting. “At the end of the day, if someone’s unconscious or they’re a vulnerable adult, then the logical answer is: Don’t try to have a sexual relationship with them.”

Lawmakers parsed HB74 to understand the implications for sex between partners, husbands and wives and those who may be incapacitated by mental disabilities, medication or surgery. The legislation aims to clarify the definition of consent in sexual assault cases.

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