Utah legislature: Is sex while unconscious OK?

A Utah bill clarifying that unconscious people cannot consent to sexual intercourse made it out of committee Tuesday — but not before vigorous debate between state representatives.

The idea that unconscious people cannot provide consent “makes sense in a first date scenario,” Rep. Brian Greene (R) said during the debate, “but, to me, not where people have a history of years of sexual activity.”


HB 74, sponsored by Rep. Angela Romero (D), would alter existing state law so that one cannot assume consent from an unconscious person or someone incapacitated by “mental defect.” The bill ultimately made it out of committee with unanimous support, though Romero does expect more dissent when the bill hits the House floor and State Senate chamber later this session.

“Is there any scenario under which a person could have sex with a [sic] unconscious person that would not constitute rape under this change?” Greene asked.

Donna Kelly of the Utah Prosecution Council responded to Greene that, under the bill, “consent is a decision that has to be made at the time of the act” and prior consent would not make sex with an unconscious person permissible. She did note that a victim would need to bring charges against the assailant, preventing, in her mind, any misunderstanding.

Rep. Keven Stratton (R) likewise asked the committee, “If a husband and wife both are conscious and they engage in the intimate relationship, and later one claims I didn’t give my consent for that … it wouldn’t be assumed because you’re married and there’s no other mitigating [factor] that there was consent?”

Kelly responded, “absolutely.”

The clarification helps both the prosecutor and the defense more accurately follow the letter of the law, Romero said in an interview.

“When you look at sexual violence in general, a lot of it is under-reported,” said Romero, who doesn’t believe that the law will “open the door” to reckless prosecution, as Rep. Greene suggested.

“We represent different worlds and perspectives,” she added. “Where I view the world, anytime anyone’s unconscious, I don’t care if they’re married…you have no right as an individual to try to have a sexual relationship with them.”

Rep. Greene did not respond to requests for comment.

Romero’s legislation, co-sponsored by State Sen. Todd Weiler (R), provides a less stringent standard for consent than California’s “Yes-means-Yes” law which requires continuous consent to be expressed throughout a sexual encounter, though it does clarify Utah state law so that an assault victim needn’t have expressed a lack of consent at the time of the incident.

Efforts to update state laws on rape like Utah’s are common, said Fatima Goss Graves of the National Women’s Law Center, but a real debate over whether spousal rape is possible is something she “hasn’t seen in a long time.”

“Those sorts of views and comparisons of women to property typically aren’t modern comparisons.”

The bill’s introduction comes after a 2013 case in which a Rodger William Kelly was charged with rape after having sex with an unconscious woman on her porch in St. George, Utah. According to court documents, Kelly claimed he was trying to warm the woman up and “save her life.”

CORRECTION: The original version of this article mischaracterized a quote from Rep. Brian Greene.

CORRECTION: Corrected by: Trevor Eischen @ 02/05/2015 05:39 PM CORRECTION: The original version of this article mischaracterized a quote from Rep. Brian Greene.

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