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Rewriting consent law gains momentum in Utah's legal community

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According to the state health department, three out of every four sexual assaults in Utah go unreported. Despite that, the state exceeds the national average for rapes per capita, and the numbers show criminal convictions are rare.

What if, instead of "no means no," Utah's standard was "yes means yes"? Advocates say that change would bring more sexual assault offenders to justice.

This story discusses sexual violence.

Utah law makes it difficult to prosecute and convict rapists, explains family law attorney Taryn Evans.

Evans survived a sexual assault in 2019, and one month ago, her attacker pleaded guilty to misdemeanor sexual battery and did not have to register as a sex offender.

“Instead of taking the case to trial, the prosecutors were worried about the way the consent law is written,” she told KPCW. “And they gave a plea deal to my rapist.”

And those prosecutors' worries are shared by others around the state.

Low rates of conviction

According to the state health department, three out of every four sexual assaults in Utah go unreported. Despite that, the state exceeds the national average for rapes per capita, and the numbers show criminal convictions are rare.

University of Utah nursing professor Dr. Julie Valentine collected data from Wasatch Front sexual assault cases over the previous decade. It showed about one in 10 ended in conviction, whether by trial or plea deal. In all of those cases, survivors submitted sexual assault kits.

Utah law states consent is absent if “the victim expresses lack of consent through words or conduct” or if the person is impaired in some way and the perpetrator knows it.

That makes consent the absence of a “no.” Evans and others, like Utah House Minority Leader Rep. Angela Romero, believe it should instead be the presence of a “yes.”

“In many [traumatic] situations, a person freezes,” the Democratic representative said. “So they don't say yes—they don't say no—but they still don't give consent.”

Changing the law

The "yes means yes" model of consent is also called affirmative consent. Romero first introduced a bill legislating affirmative consent in 2019, and has twice since, including in the 2024 General Session.

The bill didn’t get out of committee this year, by a 6-5 vote.

But conversation around the issue is growing. In the month since her attacker’s plea deal, Evans has been reaching out to other advocates and attorneys.

That includes Summit County Attorney Margaret Olson, who said she’s screening a sexual assault case that will be a challenge to prosecute as rape because of Utah’s consent law.

“It's extremely frustrating, not just from a legal perspective, but from the perspective of having to sit across the table and talk to a sexual assault survivor and explain this law,” she said at the March 27 Summit County Council meeting. “It needs to be fixed.”

Romero’s working with stakeholders like Evans and hopes movement can be made during the legislature’s monthly interim meetings.

She expects to introduce the bill again, but after working on the 2017 law that made it mandatory to test all rape kits, she knows change takes time.

“This is a normal process when you're talking about legislation, and we want to make sure we do it right,” Romero said. “But more importantly, we need to think about those survivors of sexual assault who feel like they haven't gotten justice, and they've done everything they should. They reported to police; they did their sexual assault kit; they did everything they were supposed to.”

Victims' rights

Evans said critics of the legislation argue continuously asking for consent is unrealistic.

“When you compare that with the damage of what's happening now, where victims are not protected—and yet they're being raped and sexually assaulted—that harm is much worse than some inconvenience factor of having to assess consent each step of the way,” Evans said. “Which is what I believe most people do anyway.”

According to the bill Romero has proposed, consent can be expressed through either words or actions.

It isn’t about having people sign a contract before sex, Evans said. It’s about making sure what happened to her doesn’t happen to anyone else.

Evans' case took five years and 11 different prosecutors to resolve, she said. Her attacker waived his right to a speedy trial as a part of his defense strategy.

"It's really difficult," she said. "And it's really difficult on your recovery."

The Utah Constitution states crime victims should "be free from harassment and abuse throughout the criminal justice process," and for Evans, that includes the right to a speedy resolution. She wants legislators to protect survivors from being retraumatized; changing Utah's consent law is just the start.

Resources are available for survivors of sexual violence in the Wasatch Back. The Peace House offers a 24/7 helpline at (800) 647-9161. The National Sexual Assault Hotline is (800) 656-4673.