FAILURE TO PROTECT

Will lawmakers consider bill to boost Utah’s low rate of sex assault prosecutions?

Jan 26, 2024, 8:40 PM | Updated: Jan 27, 2024, 3:56 pm

SALT LAKE CITY – Just a small fraction of reported sexual assaults in Utah lead to rape charges filed in court, but a proposed solution isn’t getting much traction on Utah’s Capitol Hill.

For more than a year, the KSL Investigators have reported on Utah’s low sexual assault prosecution rate. Some survivors who’ve chosen to share their stories recounted reporting to police and undergoing forensic exams in the hospital, only to be told their perpetrator couldn’t be prosecuted under Utah’s current rape statute.

The KSL Investigators have learned one of the biggest obstacles to prosecuting these cases is the issue of consent and how the law considers the actions or potential inaction of a victim. But a proposal to fill an existing gap in Utah’s law has been repeatedly rejected on Capitol Hill.

“If someone doesn’t give you consent, you can’t have sex with them,” said House Minority Leader Angela Romero, D-Salt Lake City. “It’s pretty simple.”

Rep. Angela Romero is proposing an affirmative consent law for the fourth time during the 2024 legislative session.

Rep. Angela Romero is proposing an affirmative consent law for the fourth time during the 2024 legislative session. (Aubrey Shafer, KSL TV)

Romero and experts have noted that Utah’s current first-degree felony rape statute often does not capture cases involving victims who were sleeping, too inebriated to consent, or those who freeze in fear and say nothing at all – a common trauma response known as tonic immobility.

The challenge of consent: Utah’s rape law & low prosecution rate

That’s why Romero is sponsoring an affirmative consent bill for the fourth time. The measure would create a new third-degree felony offense for instances in which a perpetrator fails to get consent from a victim through words or actions.

“My goal is to let those perpetrators know, ‘We’re watching you,’” said Romero. “But also, more importantly, protect people from being victims of sexual assault.”

Romero has filed three other measures introducing affirmative consent over the years. That component of a 2020 bill was dropped during a committee hearing before the bill advanced. A 2021 affirmative consent bill got one hearing but was voted down. And a 2022 affirmative consent bill was largely ignored, never making it into a single committee hearing.

The last time one of Romero’s affirmative consent bills got a hearing in the legislature was in 2021, and six of 11 lawmakers voted no, ending the discussion, and killing the bill in committee.

Six members of the House Law Enforcement and Criminal Justice Committee voted against an affirmative consent bill in 2021.

Six members of the House Law Enforcement and Criminal Justice Committee voted against an affirmative consent bill in 2021. (KSL TV)

Current House Speaker Mike Schultz was one of those “no” votes. When asked Friday whether his thoughts on the issue have evolved, Schultz said he hasn’t yet wrapped his head around the bill, but he remembers having concerns when he voted against it.

“I’ll just be a little graphic, but right in the middle of intercourse, it does say you have to get affirmative action,” said Schultz, R-Hooper. “If we’re going to change the law that much, I think a good discussion about what that looks like… you know, again, you want to be cautious.”

Romero clarified that is not an accurate description of her bill.

“I have great respect for Speaker Schultz,” she said, “but that’s not exactly what the bill does. So, again, that just shows that we have to do a lot of education on the bill.”

Schultz said there would need to be discussion about the issue, but would not say whether Romero’s bill will get a hearing this session.

Utah House Speaker Mike Schultz, R-Hooper, and Rep. Karianne Lisonbee, R-Clearfield, speak with journalists on Jan. 26, 2024.

Utah House Speaker Mike Schultz, R-Hooper, and Rep. Karianne Lisonbee, R-Clearfield, speak with journalists on Jan. 26, 2024. (Aubrey Shafer, KSL TV)

Romero said she hopes the bill will get a committee hearing, but either way, she intends to keep bringing the measure forward.

The KSL Investigators previously spoke with law professor and author Deborah Tuerkheimer, who has studied affirmative consent laws in three states where it’s already on the books. She said her research didn’t turn up any negative consequences to affirmative consent laws in practice, but she did find those states are seeing prosecutions in the types of cases that often go uncharged here in Utah.

 

Several other bills filed during this legislative session are aimed at addressing gaps in how sexual violence is investigated and prosecuted in Utah – issues highlighted by the KSL Investigators’ Failure to Protect Series.

Romero has also filed a bill that would establish a standard model for all sexual assault investigations in the state of Utah. She believes it would encourage more survivors to come forward.

“I want the community to trust law enforcement,” she explained. “To know that if they are a victim of sexual assault, that law enforcement have the tools they need to do the investigation, but more importantly, for that survivor or victim to feel like they’re believed.”

She’s also filed a measure to prevent the use of polygraph tests on victims of sexual crimes and another bill that establishes standards of care for rape crisis centers, which has passed out of a house committee with a favorable recommendation.

“It’s really critical that we have standards of care for rape crisis centers,” Romero said. “We have them for domestic violence shelters, we have them for children’s justice centers. And so, this is a next step to ensure that sexual assault has the same attention and the same support as some of our other areas in which people can be victims of crime.”

Rep. Tyler Clancy is sponsoring a victims’ rights bill aiming to clearly outline, in one place, the legal rights for victims of crime in Utah. The Provo Republican said part of his motivation to work on these issues across party lines stems from hearing the stories of women who shared their experiences with the KSL Investigators.

“We’re trying to create a better system for victims,” Clancy said in a recent interview. “Building trust in the system isn’t a partisan idea.”


This report is part of a series examining how apparent gaps at every level of Utah’s criminal justice system fail to protect Utahns.

Resources

If you have experienced sexual violence, you can access help and resources by calling Utah’s 24-hour Sexual Violence Helpline at 1-888-421-1100. You can also call the National Sexual Assault Hotline at 1-800-656-4673 for free, confidential counseling.


Have you experienced something you think just isn’t right? The KSL Investigators want to help. Submit your tip at investigates@ksl.com or 385-707-6153 so we can get working for you.

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Will lawmakers consider bill to boost Utah’s low rate of sex assault prosecutions?