Utah Lawmaker Unsure About Closing ‘Loophole’ in Rape Definition (Updated)

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Utah Lawmaker Unsure About Closing ‘Loophole’ in Rape Definition (Updated)

Martha Kempner

A bill to clarify the definition of rape—and close what some saw as a loophole—passed a Utah House Committee yesterday, but not before sparking some disturbing conversations about what constitutes rape.

UPDATE, February 5, 12:30 p.m.: The Salt Lake Tribune has reported that Rep. Greene apologized on Wednesday “for any pain that his words caused.”

Responding to backlash after his comments on what constitutes rape during a recent committee hearing made headlines, the lawmaker told the newspaper, “I understand that, in isolation, some of the words I chose could be interpreted in an ugly way. It was never my intention. I am supportive of the bill and have been from the beginning, and I voted for it.” He added, “I just wanted the committee to be sure what we were doing.”

A bill to clarify the definition of rape—and close what some saw as a loophole—passed a Utah House Committee Tuesday, but not before sparking some disturbing conversations about what constitutes rape.

The bill, sponsored by Rep. Angela Romero (D-Salt Lake City), seeks to amend current law to clarify the definition of rape. Romero wants to remove the phrase “without the consent of the victim” in the provisions related to victims who are unconscious and unaware.

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This would remove the burden on the prosecution to show that the victim did not consent. She also wants to change a provision so that if a defendant knows that the victim is “incapable of understanding or resisting the offense” in the moment, it no longer matters if that person also knows that the “victim has a mental disease or defect.”

Romero described these changes as beneficial to both the prosecution and the defense.

“The changes will give defendants better notices and opportunities to prepare their defense, and delete things that are impossible for prosecutors to prove and are confusing to judges and juries,” Romero told the committee. “Another reason why this is needed is to prevent those who are vulnerable from being sexually assaulted by clarifying conditions under which a sexual act is committed without consent of the victim.”

In the debate that followed, however, one congressman expressed concerns over the changes regarding unconscious people. Rep. Brian Greene (R-Pleasant Grove) told the committee, “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?”

He went on to say:

It looks to me now like sex with an unconscious person is by definition rape. I hope this wouldn’t happen, but this opens the door to it — an 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.

Others at the hearing disagreed with Greene and voiced support for the clarifications. Donna Kelly of the Utah Prosecution Council told the story of a 2008 case in which a woman woke up in the middle of a rape, but because the judge felt the prosecution could not adequately “prove an expression of lack of consent through words or conduct,” the case was dismissed.

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

The committee—including Greene—voted unanimously to pass the bill. It now goes to the full house. A senate version of the bill is being sponsored Sen. Todd Weiler (R-Woods Cross).