Sexual conduct without affirmative consent would be considered a third-degree felony in Utah under a proposed piece of legislation.
HB98, sponsored by Rep. Angela Romero, D-Salt Lake City, sets a standard of affirmative consent when it comes to sex, which she says would “give another tool for prosecution to look at when addressing sexual assault.” Current Utah law defines sexual abuse as when “the victim expresses lack of consent through words or conduct.”
Romero is no stranger to sexual assault legislation, having proposed multiple bills addressing the subject in previous legislative sessions — including a nearly-identical bill that fell one vote shy of a committee recommendation last year.
In 2020, Romero helped pass a bill that stipulates that previous consent does not constitute consent for future sexual interactions, and allows individuals to withdraw consent at any point during sexual activity. The bill originally had language requiring affirmative consent, but it was removed in order to secure committee recommendation. At the time, Romero said the bill was a “starting point,” and promised to continue to push the issue.
What is affirmative consent?
According to the Consent Project, affirmative consent is “affirmative, conscious, and voluntary agreement to engage in sexual activity.” Rather than following the common standard of “no means no,” affirmative consent follows the standard of “yes means yes,” meaning individuals “must receive a verbal yes from the other person before continuing” with any sexual activity.
In 2019, Colorado enacted HB1032 — becoming the only state in the West with a general affirmative consent law on the books. California has affirmative consent laws that cover high school and college students.
‘They jump through every hoop, and they’re still suffering’
The bill is based in large part on research done by Julie Valentine, a nursing professor at Brigham Young University and certified sexual assault examiner. In a 2016 study, Valentine found that as few as 6% of sexual assault kits resulted in a successful prosecution in Salt Lake County from 2003-2011. In 91% of all cases in the study, no charges were ever filed.
Instances of sexual assault are underreported, Romero said, and when they are filed, perpetrators are often not held accountable because it comes down to one person’s word against another’s. If passed, she said her bill would eliminate this gray area and help victims find justice.
“We ask sexual assault survivors to get a sexual assault kit, we ask them to call law enforcement, and they do. They jump through every hoop, and they’re still suffering from trauma,” Romero said. “Then they get to where they want their perpetrator to be prosecuted, and that doesn’t happen.”
Contending with cultural misunderstandings
Having tried to get this same legislation to the House floor a year ago, Romero doesn’t expect an easy path this time around. Romero is one of only three Democrats on the House Law Enforcement and Criminal Justice Committee. Of the seven Republicans on the committee this year, four voted down her proposal in 2021.
Opponents of the bill include defense attorneys and some Republican lawmakers who are concerned that the interpretation of the bill could be overly broad. They worry that prosecution could be brought against married couples or individuals unaware of the need for affirmative consent.
Romero feels that in addition to procedural obstacles, she has to contend with the prevalence of stereotypes and misunderstandings about sexual assault.
“It comes down to not understanding trauma. Not every person who is a victim of sexual assault is going to respond the same way,” Romero said. “A majority of the time, when we’re talking about sexual violence, we put it back on the victim, we don’t put it on the perpetrator.”
Even if the bill is passed and signed into law, Romero said, there is a lot of work left to do to convince many of the seriousness of sexual assault. If nothing else, she hopes that continuing to push for these changes will help facilitate frank conversations about consent.
“These are conversations I have with my son all the time,” she said. “And I know it drives him nuts sometimes because he feels like I’m repeating myself. But I feel like, you know, we need to have these conversations.”
Prevention and accountability
As a third degree felony, sexual conduct without affirmative consent would warrant up to five years in prison or fines of up to $5,000 if signed into law. HB98 also requires that adults convicted under the law register with the Sex and Kidnap Offender Registry.
Romero said she supports preventative educational methods to stop sexual and domestic violence before they occur, but intends the penalties associated with the bill to act as a complimentary deterrent.
“Part of solving this issue is to hold people accountable, but also to do the preventative piece,” she said. “I think they go hand in hand. I don’t think you do one and then the other, you have to do them together.”