Legislature modernizes 40-year-old definition of consent in sexual assault cases

A woman poses for a portrait outside
Rep. Geran Tarr, D-Anchorage, stands outside of the Capitol on Friday. Tarr sponsored legislation to update a 40-year-old definition of consent in state law, which the Legislature passed on the last day of its session. (Lisa Phu/Alaska Beacon)

Rep. Geran Tarr, D-Anchorage, is relieved her bill to modernize the definition of consent passed this year.

“When I think about a policy like a massive public safety improvement, if we delay action, I know that between now and the next time I or anyone else will have the opportunity to address that, hundreds more Alaskans will be harmed,” she said during a phone interview Thursday.

When a sexual assault is reported, a key element of establishing whether an assault took place is determining if consent was given. Current Alaska law requires the use of force or the threat of force. Simply saying no isn’t enough to establish that consent wasn’t given. Doing nothing at all or freezing — which is a common response to trauma — can be seen as consenting. The law has been like that for the past 40 years. On May 18, the last day of the regular legislative session, the House and Senate voted unanimously to change how sexual assault can be prosecuted by modernizing the definition of consent.

“Alaska took a gargantuan step forward in updating our laws,” said John Skidmore, deputy attorney general for the Criminal Division of the Alaska Department of Law. He spoke during a governor’s press conference Thursday.

Under the bill, consent is defined as “a freely given, reversible agreement specific to the conduct at issue… ‘freely given’ means agreement to cooperate in the act was positively expressed by word or action.” The bill includes a provision for the trauma response of freezing: “lack of consent through words or conduct means there is no consent… lack of consent does not require verbal or physical resistance and may include inaction.”

Another provision of the bill criminalizes rape by fraud, which means “you cannot impersonate a person known to the victim in order to obtain consent,” Skidmore said. It also codifies a reduction in the timeframe for sexual assault kits to be processed to six months; the law currently requires rape kits be processed within a year.

Bipartisan, unanimous support

After more than a dozen committee hearings, Tarr’s bill on consent, House Bill 5, was still in the House Finance Committee on May 17, two days before the end of regular session. So Tarr was “looking for any vehicle possible that was a public safety piece of legislation that we might have been able to insert the language into. [House Bill] 325 was the perfect vehicle,” she said. Tarr coordinated with House Bill 325 sponsor, Anchorage Republican Rep. Sara Rasmussen, “who was amazing and wanted to do everything she could to help get this across the finish line.”

On the last day of regular session, Palmer Republican Sen. Shelley Hughes and Juneau Democratic Sen. Jesse Kiehl worked together and made impassioned arguments for adding Tarr’s House Bill 5 as an amendment to HB 325, which was on the floor.

Hughes said: “57.7% of Alaska women have experienced sexual violence or intimate partner violence, at least in one form or another, in their lifetime. That’s roughly six out of 10 women. That’s three out of five, Mr. President. There are five female legislators in this body, and 13 in the other body; statistically speaking, 10 of us are victims. That is how unsafe our state has become for women and girls.” 

The Senate voted unanimously to pass the amendment and the bill. “There have been moments of ugliness, some ugliness this session, but we also know in this chamber how to work together,” Hughes said. The House voted unanimously to concur with the changes to the bill.

Wait and see

Tarr credits Standing Together Against Rape (STAR) with identifying the outdated consent definition and making it a legislative priority to fix it. STAR, based in Anchorage, is a sexual trauma prevention and response organization.

“We are so pleased and elated that it passed. It was a long time coming,” STAR communications and development director Jennifer Brown said on the phone Friday. Brown hopes passing the bill will “send a message to perpetrators that violating someone who can’t consent or someone who says no – there’s going to be consequences for that now.”

And she hopes it will impact survivors. “We hope that more of our clients will be able to get justice because of the changes in the law,” Brown said. “But we will have to wait and see what happens, if the percentage of prosecutions goes up.”

Alaska Beacon is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Alaska Beacon maintains editorial independence. Contact Editor Andrew Kitchenman for questions: info@alaskabeacon.com. Follow Alaska Beacon on Facebook and Twitter.

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