Utah lawmaker: is it still rape if the unconscious person is your wife?

A proposed law in conservative Utah aimed at clarifying its definition of consent in sexual assault cases has drawn widespread attention after a state representative questioned how it might work between married couples.

The proposal currently before lawmakers appeared simple enough. It would explicitly prohibit sex with an unconscious person or one incapacitated by drugs, medication or a mental disease or defect.

But Republican state Representative Brian Greene ignited a fire storm of controversy when he called it a sweeping change that could have many unintended consequences.

“If an individual has sex with their wife while she is unconscious … a prosecutor could then charge that spouse with rape, theoretically,” Greene told a meeting on Tuesday of the House Judiciary Committee.

“That makes sense in a first date scenario, but to me, not where people have a history of years of sexual activity.”

The legislation is intended to protect the incapacitated from having to prove they did not consent to sex, and was introduced after a 2013 case in which a man was charged with raping an unconscious neighbor on her porch in St. George, Utah.

The man told police he had intercourse with the woman to warm her up and “save her life,” the Salt Lake Tribune newspaper reported at the time.

The bill’s sponsor, Democratic state Representative Angela Romero, told the committee standardizing the language on consent would help both the prosecution and defense in such cases.

In response to Greene’s comments on how the change would work within wedlock, Donna Kelly of the Utah Prosecution Council told him consent is a decision which has to be made at the time of the act.

“If someone gave consent and said I’ll have sex with you on Friday night, but then that person winds up in a car accident, unconscious in the hospital … that other person can’t come to the hospital and have sexual intercourse,” she said.

Greene did ultimately vote in favor of the bill, which was passed with unanimous support and will go to the Utah House floor and State Senate chamber later this session.

In a statement on Wednesday, the lawmaker apologized for any unintended pain his comments caused, and said he had been misunderstood.

“I abhor sexual assault under any circumstances, including within marriage,” Greene said. “I strongly support closing any loopholes that allow offenders to evade prosecution and I believe this bill does that.”