Poma: Utah Needs a Clear Definition of Consent


(Courtesy Ruth Basagoitia)

By Sasha Poma, Assistant Opinion Editor


During the 2020 legislative session, I wrote about Rep. Angela Romero’s H.B. 213, otherwise known as the Consent Amendments. Unfortunately, while the bill passed, the final language of the bill read very differently than the original and failed to provide a concrete definition of consent that would protect victims of sexual assault. This year, Romero is working once again to define consent in clear language with H.B. 78. In a state where sexual assault happens so often to people we know and love, a precisely worded definition of consent could be the difference between justice and unresolved trauma in many cases. It is not enough to do the bare minimum for sexual assault and rape victims. The Utah State Legislature must go above and beyond, and they have the opportunity to do so now thanks to Romero’s bill.

Similar to last year’s original text, H.B. 78 states that sexual conduct without affirmative consent should be considered a third-degree felony. Affirmative consent differs importantly from the general meaning of consent. In a broad sense, consent is essentially the “okay” for each party engaging in sexual activity, and as clarified in last year’s version of the bill, “may be withdrawn through words or conduct at any time prior to or during sexual activity.”

The word “affirmative” adds a deeper layer to this understanding. H.B. 78 clarifies affirmative consent as “words or overt actions by an individual who is competent to give informed consent, indicating a freely given agreement to have sexual conduct at the time of the act.” In other words, the lack of an objection (verbal or otherwise) does not necessarily equate to consent. For instance, there are cases in which assault victims experience involuntary paralysis due to shock and physically cannot combat or evade their abuser. This definition also accounts for those who are intoxicated or otherwise cannot consent to action with a sound mind.

It may seem redundant to discuss the Consent Amendments just one year after the original text passed into law. However, we need Romero’s precise definition of affirmative consent for a safer state. “A lot of survivors of sexual assault give up hope with the legal system because they feel like there’s nowhere to turn and because they don’t feel believed. That’s one of the reasons why I’m running this bill,” Romero said in an interview. “A lot of people get away with perpetrating and sexually assaulting people and are not held accountable.” The linguistic clarification in this year’s bill would help prevent these criminals from getting away with these serious offenses.

Establishing affirmative consent as the norm also protects victims of sexual assault who have been taken advantage of by people they know. Romero noted, “A lot of times when we talk about sexual assault, we always think about ‘stranger danger,’ [especially] with child sex abuse. But we’re not talking about who these perpetrators are. They’re people who build that trust with their victim.” For example, marital sexual assault is devastatingly common. This definition of affirmative consent reinforces the idea that marriage is not consent in and of itself, strengthening protection of potential victims.

Romero’s bill is a call to action for Utah to move away from victim-blaming and offer justice and security to sexual assault victims. Many other states, universities and other entities have policies explicitly outlining that affirmative consent is necessary to maintain healthy, safe environments. Now it’s time for Utah to step up to the plate. We already have groups advocating for health and sexual assault prevention in Utah schools, for instance — just one example of how people are combatting the conservative, taboo attitudes towards sexual assault survivors. But there is always room to do better. H.B. 78 can help this movement become less controversial.

Even if the bill does not pass this year, it’s crucial that Utahns accept and acknowledge this definition of affirmative consent and prioritize its implementation in all our relationships and sexual encounters. And beyond our private lives, making affirmative consent a part of our culture can be as simple as calling our legislators to share our support for this bill and others we care about. “First of all, to even get this change, it’s important for people to reach out to their legislator and tell them why the bill is so important and why you want them to support the bill,” Romero said. It’s a simple, quick task that can impact our lawmakers’ decisions more than we might think.

Until Utah has a clear legal definition of consent, victims of sexual assault will not get the justice they need and deserve to heal. Right now, Utahns have a vague understanding of what it means to properly consent, but we must make sure that every single victim is protected. If that means improving and strengthening the language with H.B. 78, then our lawmakers should do that. And for our part, we must hold our representatives accountable to prevent people from getting away with sexual assault crimes on a technicality. It is within our power to make Utah a safer and more just place, and we must do so now.


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