Legislator aims to define “consent” in sexual assault bill
Prompted by allegations that the Nome Police Department was not adequately investigating sexual assault crimes, NPD conducted an audit of sexual assault cases at the end of 2018. The audit found that a total of 460 sexual assault cases had accumulated between 2005 and late 2018 that still needed some amount of work. To address this backlog, NPD hired an investigator last year to work through the cases. As of last month, only 29 of the initial 460 cases still needed some work, reported investigator Scott Weaver to the Nome City Council in December. New cases have accumulated, however. In addition to the 460 old cases, 88 new sexual assault cases were reported to NPD in 2019, as well as a record 134 reports of sexual assault in 2020.
The investigative work involves contacting victims to see if they still wanted to pursue the case, which not all do. In those cases where individuals do want to press charges, NPD is working with Nome District Attorney John Earthman to determine what is needed for prosecution. Earthman is in the process of reviewing the hundreds of cases for prosecutability. Currently the only prosecutor in Nome, Earthman is prioritizing current cases and working his way backward in time.
Prosecuting sexual assault cases is extremely difficult, because some elements of the crime are hard to prove. Alaska law does not have a definition of consent, but instead only a definition for ‘without consent.’ The definition for ‘without consent’, which Earthman referred to as “the most important statute in the whole realm of sexual assault” is very specific. “It’s narrower than regular language,” he explained.
‘Without consent’ means that, with or without resisting, an individual was coerced by use of force or fear of death or physical injury. The second way there can be a lack of consent is if the person is incapacitated due to an act by the perpetrator. For a prosecutor, the relevant question is not whether or not the act was mutually agreed upon, but rather whether or not there was force of coercion in the form of injury or the fear of injury. “They’re always going to be very, very hard,” Earthman said of prosecuting sexual assault cases.
A bill prefiled in the legislature by Rep. Geran Tarr, an Anchorage Democrat, would rewrite the definition of consent in an effort to bring justice to victims of sexual assault. Tarr explained in an interview with The Nome Nugget that current laws are over 30 years old and reflect an outdated understanding of sexual assault that involves victim blaming. Central to changing the understanding and thereby the systemic problem of sexual assault in Alaska is rewriting the definition of consent. Specifically, Tarr said, the fact that consent is defined only negatively “fundamentally seems wrong.” Consent is not perceived as something that is given, but rather as something that is taken away and is thus implied, she explained.
According to Tarr, a hurdle for achieving justice is that “the law is so poorly written and incomplete” that jurors often do not fully understand the definition. She explained that due to the force or coercion component, jurors often look for signs of struggle, such as injuries. However, victims have different responses, including flight, fight or freeze. Therefore, the victim does not necessarily fight back, but this does not mean the act was consensual. Earthman pointed out that sexual assault does not require resistance. The DA does need to demonstrate that force was used, either in the form of physical violence or coercion in the form of the threat of physical violence.
The definition Tarr proposes emphasizes the fact that consent must be freely given and thus affirmative; a pivotal shift away from the idea that it can only be revoked, she said. Under the bill, consent means “a freely given, reversible agreement specific to the conduct at issue by a competent person.” It cannot be given by an individual who is unconscious or extracted by threat or force, nor can consent be assumed on the basis of a previous or current romantic relationship.
Earthman said reconsidering the definition of consent is an important and could potentially “dramatically” change the way sexual assault crimes are prosecuted. However, he noted that any potential changes the bill would bring are far down the road. “It’s very hard to say,” he said, “we’ll wait and see.”
Earthman explained that the requirement for consent is “a different factual scenario, we’re going to be asking different questions.” However, the different factual scenario does not necessarily mean answering these questions—and therefore prosecuting sexual assault cases—will get any easier. This is because no law can change the fact that the activity occurred between two individuals, the vast majority of the time without witnesses. Earthman said, individuals often have different recollections of the events, and sometimes do not remember anything at all. Whether or not there was consent at the time is not particularly useful if one or neither party can remember giving or receiving that consent.
For these reasons, Earthman is not particularly optimistic that a change in the law will make achieving justice any easier. “These are difficult cases and it’s never going to get easier,” he said of the cases. “It’s always a very difficult situation to be in as a victim.”
Yet one scenario where the active definition of consent could be helpful is in situations where an individual is unconscious. Under current law, if an individual is passed out or sleeping and another individual engages in sexual misconduct with that individual, the act technically did not take place without consent because there was no force or coercion. The only way it is considered sexual assault is if the victim is unconscious due to the actions of the perpetrator, for instance, if one individual drugged the other. Under the proposed new bill, any sexual misconduct with an unconscious individual—regardless of how or why the individual was unconscious—would be considered sexual assault because the victim would be unable to freely give consent.
Another issue that came to light during the NPD audit was a backlog of sexual assault kits. For various reasons, NPD did not always send sexual assault kits to the state crime lab for testing, and the kits were laying dormant in Nome. In late 2020, the problem of untested kits arose again. This time, however, NPD had sent the kits to Anchorage; the issue was that a severe backlog at the state crime lab, resulting in a wait time of over a year to process the kits. Last fall, there were 16 sexual assault kits at the state lab that had not yet been processed. In order to expedite testing, Kawerak coordinated a grant to allow NPD to send the kits to the private BODE Lab.
A provision in HB 5 would require that laboratories test sexual assault kits within six months after they receive them. While shortening the wait time is important for cases where the identity of the suspect is in question, Earthman explained that often prosecutors and the victim know who the perpetrator is. What needs to be proved is not who did it, but whether or not there was coercion. When the identity of the suspect is not the issue—as is often the case—having the DNA evidence is not relevant to the case.
While the implications of the proposed legislation are not yet clear, examining the statute and the definition of consent is important, said Earthman. “I for sure do think that some of the dissatisfaction with the current system comes from the strict requirements,” he said, and the definition is the place to go to change this.
Changing the definition may not make prosecuting cases easier, but it could impact the culture in Alaska around consent. “There’s not a clear understanding about expectations and behaviors, and that’s when bad things happen,” Tarr stated. She explained that while working on the bill she held forums across the state. In every forum, participants were asked if consent has ever been an issue, and 100 percent of individuals in a group that included women, men and rural and urban Alaskans, responded yes. According to Tarr, the affirmative definition brings with it important implications of body autonomy and choice that the current statute lacks entirely.
