How the story of the “pure” rape killed Utah’s proposed affirmative consent bill (HB78)
Note: This article discusses rape, sexual assault, and rape myths.
The title of this article stems from a comment that a Utah House Representative made during a committee debate on February 22, 2021 about a proposed affirmative consent bill. On that date, the Salt Lake Tribune reported that Utah’s HB78 (proposed by Representative Angela Romero) that would have created a new crime of 3rd-degree felony rape for anyone who engaged in penetrative sexual acts without affirmative consent) had failed to pass out of the House Law Enforcement and Criminal Justice Committee. Upon listening to the audio recording of the debate, I heard a representative explain his concern that the proposed legislation would ensnare unwitting perpetrators in the legal system. He said he was fine with the law catching perpetrators in scenarios “where someone is sleeping or intoxicated or any of those where it’s just a pure, obviously someone took advantage of someone that had no intentions of doing anything in that manner. I’m just concerned on the other side.”
This comment encapsulates the complexities of how dominant stories of rape enter into discussions and debate over proposed legislation about rape and sexual assault. It exposes the false notion that there’s a “pure” form of rape (the unambiguous kind) and, in conjunction, a “pure” or “real” victim (the person who had no sexual intentions or sexual desires). (As a side note, when I searched “pure” on the Creative Commons Digital Images repository, the first page almost exclusively showed half-naked women.) This dominant story inaccurately portrays the vast majority of rapes, makes victims more reluctant to report, and, in this case, stalls legislation that might support and empower more victims to come forward.
As a professor who studies and teaches about sex crime policy, gender inequality, rape, and rape myths, I clicked on the Tribune headline assuming that false narratives about rape had once again undermined attempts to strengthen rape laws. Sure enough, I found that the myth of the “pure” rape, a rape in which the victim (always a woman in the myth) either clearly fought back or was entirely unconscious while the perpetrator (always a man in the myth) knowingly took advantage of her, persisted as a powerful story that ultimately contributed to the failure of the bill.
Before I explain the details of my analysis, let’s talk about assumptions. By stating my assumption above, some people may believe that I’ve exposed my bias and therefore cannot be trusted to come to any valid conclusions. I disagree. Is it not more suspicious to research and write about a topic without examining factors that may predispose a person to a particular perspective? If I were to write about this “objectively,” as if I am not a person with over forty years of lived experience in this world, I would be lying. Then, you, reader, could research me online, expose my biases, and thus find reasons to render my conclusions suspicious. Instead, I choose to “expose” myself: I am a human being writing this based on what I know about the world through my lived experiences and extensive, empirical study of the relevant topics. So, I come to this article as a cisgender white woman, a sociologist, and a social justice advocate living in Utah.
I began reading the Tribune article from a standpoint rooted in assumptions about gender inequality (it’s pervasive in everyday interactions, social institutions, and governmental policy, and it harms women’s attempts to fully realize our inherent human rights and humanity), rape and sexual assault (it’s perpetuated by patriarchal systems of power that elevate men’s power and dampen women’s power within interactions and institutions), and law (it’s a system of rules created by elite white men that upholds their power, and can also sometimes be used by outside groups to create small cracks in the system that may one day accumulate into real social change). It’s no secret that Utah is a very conservative state overall, so I also assumed that this political ideology played into the failure of the bill.
Because of my affiliation with a state university, I must be clear that this is not a political post. I study law and society; I study sex crime policy. This is my realm of expertise, and my intent in this article is to show the inner workings of how a pervasive myth about perpetrators, victims, and their interactions can undermine attempts to make progressive public policy.
Now that you know more about me, we can continue with what I found.
The Tribune article summarized the affirmative consent bill, along with Utah’s inordinately high rates of sexual assault and rape, proponents’ arguments for advancing the bill out of committee, and some of the concerns raised about the bill during the committee hearing. Because many of the concerns appeared to be based in persistent myths about rape and rape victims, I headed to the state legislature’s web site to listen to the audio recording of the entire debate. What I heard there provided me a small glimmer of hope, and it also confirmed my theory that rape myths continue to stymie efforts to use legislation to support and empower victims of sexual assault and rape.
In discussing concerns about the bill, everyone agreed that the bill would make it easier to prosecute cases in which the prosecution can’t prove beyond a reasonable doubt that the victim said ‘no’ or otherwise resisted the encounter (the current 1st-degree felony rape standard), but can prove that the victim did not willingly give their consent (the proposed new 3rd-degree felony rape standard). For example, several people during the hearing brought up the “freeze” response in which the victim’s terror of the trauma that is occurring or is about to occur cannot physically move, speak, or make any sounds. When “frozen,” victims physiologically cannot resist. In these cases, lack of affirmative consent would be much easier to prove than the current standard, which requires a defendant to know that the victim did not consent.
During the committee’s debate, some people were uncomfortable with this increased possibility of prosecution. In arguing against the new bill’s potential to widen the net of prosecutions, the dominant story of the “pure” rape began to emerge.
In in the first exchange between a committee member and the academic experts helping to present the bill, Representative Gibson asked Dr. Valentine and Professor Cassell whether consent could be retracted after the sexual encounter and framed his question in terms of legal ambiguity over the term “consent.”
Here’s their exchange (I transcribed it from the audio provided by the Utah State Legislature. The time marks are approximate.):
Rep. Gibson (1:02:01): “Could consent be retracted after the sexual encounter?”
Professor Cassell: “Not after the sexual encounter, no.”
Rep. Gibson: “But the claim could be, and then who would…how do you know what is real and what’s not real?”
Professor Cassell: “Right, so of course that’s what we have our criminal justice system for, jury trials, witnesses, ultimately a process to make a determination. The problem right now are situations where it can be shown where there is a situation where the defendant knew that he did not have consent and yet that is not a crime under Utah law. So, one thing to be clear about with this law is that it does not change any existing safeguards that exist for, for example for defendants moving forward in a criminal case.”
Rep. Gibson: “I guess the part that I struggle with is affirmative consent means words or actions. And it’s the action piece that leaves potential ambiguity there.”
Later, Representative Gibson added (1:16:01):
“Pretty sensitive stuff, and I think this bill would provide some clarity on some cases, but I’m worried about the other side. Are there opportunities that we’re gonna get innocent people? Are people where this may not apply and they’re gonna have to go to a long arduous process to prove their innocence? […] I understand that there’s rape kits and all these different things, but I don’t think that…in some of those cases, it may have been consensual, but yet if I’m claiming it’s not […] A woman may say, ‘No, I did not do that.’ I’m just looking on the other side. So, [..] could there be instances, if this bill were to be put in place, where that could happen?[…] Can consent be retracted after the fact? Maybe through remorse, maybe through regret, wish I wouldn’t have done that, wish I wouldn’t have had that sexual encounter with that person.”
Retracting consent. Knowing what’s real. Wishing they hadn’t had sex. All of these statements invoke the story of the regretful victim who then lies about being raped to cover up a consensual encounter. In reality, a very, very small percentage of rape and sexual assault accusations have been shown to be false. The vast majority of victims never report their victimization, in part because of the underlying myths that cause further trauma upon reporting. Yet, the dominant story remains that women who report rape or sexual assault are lying, unless their story aligns with the narrow “pure” rape scenario. Even then, people in power doubt their claims. Through his comments, Representative Gibson brought the specter of the regretful, lying victim into the conversation. The notion of affirmative consent was no match for the age-old stereotype that a victim might clearly consent to a sexual encounter and then take it back later in order to accuse the perpetrator of rape and ruin their reputation.
To be fair, as the representative pointed out, the law does have ambiguity. Laws are designed this way to provide for a wide variety of circumstances. In fact, Utah’s current rape law also “leaves potential ambiguity” in stating, “A person commits rape when the actor has sexual intercourse with another person without the victim’s consent” (Utah Code 76–5–402). What constitutes “the victim’s consent”? And remember, this concern about ambiguity arose by invoking the mythical victim who agrees, regrets, retracts, and accuses. Contrast this to the “pure” rape scenario, which, by implication, involves no ambiguity.
Representative Gwyn reinforces this point later by saying (1:22:46):
“So, I’m not concerned about the cases where lack of consent is obvious, someone is intoxicated, you know, they’re unconscious, right. That’s not what this is to address.”
“That’s not what this is to address.” In other words, we’re not talking about the unambiguous, “real” rape cases. We’re talking about the other cases where, the representative’s comments imply, we’re not sure who to believe. In the same comment, Representative Gwyn goes on to present a hypothetical scenario that again introduces the idea of ambiguity and the regretful victim (1:22:46):
“What about those cases where both parties are drinking or ingesting drugs and there’s intercourse that night and, you know, whoever is identified as the suspect or the perpetrator believed that it was okay, or, you know, they’re just naive based on the circumstances at the time. […] I saw a lot of those types of cases and they generally weren’t prosecuted because they were in this gap. In a circumstance like that, is there still gonna be…are they still subject to prosecution, if they’re both knowingly ingesting these types of substances and their trail of thought or their minds are both altered and then one wakes up the next day and regrets what they did?”
With this comment, another specter enters the conversation, that of the naive perpetrator. Take regretful victim and the naive perpetrator, add the element of intoxication, and you have a powerful mix of ambiguity that complicates questions of what constitutes “real” rape. The perpetrator apparently doesn’t know what they’re doing. The victim doesn’t consent (and, in fact, can’t consent because they’re intoxicated), but the perpetrator doesn’t know that and can’t know that due to lack of experience. The perpetrator proceeds to unknowingly rape the victim. The next day, “one wakes up…and regrets what they did.” Who had regrets? The dominant story tells us that the victim regrets the sexual encounter.
Now, read that last part again, but this time imagine it’s the perpetrator who wakes up and regrets what they did. In that case, the perpetrator isn’t naive. They know that what they did was wrong, at least in hindsight. But, that doesn’t fit with the myth of what a “real” rape looks like, and that isn’t what the representative meant.
The naive perpetrator appears again during the public comment period. Cara Tangaro, a former sex crimes prosecutor turned defense attorney called the proposed bill “bad policy” because (1:28:05):
“The people we’re gonna capture under this new law are the inexperienced and the naive and not the rapist on the street.”
This, she argued, was a major problem with the law. According to this logic, the law shouldn’t hold the “inexperienced and the naive” accountable for their actions. By contrasting this group with “the rapist on the street,” Tangaro invokes the ultimate “real” rape story that strangers pose the worst threat to potential victims, and any other kinds of rape are less serious. (This hierarchy is also implied in the bill, which would create lack of affirmative consent as a 3rd-degree felony rather than the more serious 1st-degree felony.)
Another exchange related to concerns over net-widening brought up a different element of the “pure” rape story while also demonstrating how the story has evolved to include more currently acceptable ideas of what constitutes rape. Here is where I see a small glimmer of hope: the overpowering myth of stranger danger appears to have yielded slightly to a story that rape can also include unwanted sexual acts during dating and upon college students. Here’s the exchange between Representative Gwyn, Professor Cassell, and Representative Romero, the bill’s sponsor (around 1:06:01):
Representative Gwyn [After some opening comments that they’ve already legislated that it’s a crime when victim is unconscious or unaware that the act is occurring and is physically unable to resist.]: “Are those circumstances maybe not what we think of generally when we’re talking about college campuses or dating, but you have, you know, a married couple who have been married for several years and, you know, they engage and one night one partner wants to do something and the other partner doesn’t necessarily want to, but, you know, just says, ‘Fine.’ And lays there. Does this open up prosecution in a case like that?”
Professor Cassell: “No.”
Rep: “Would she not be able to argue that…”
Rep. Romero (bill sponsor): “Mr. Chair, I guess my question for the…my answer to that question is, ‘Would your…would that spouse take their spouse to, would they report them to law enforcement?’ And this question was posed to us when I ran that bill four years ago, and the likely answer is, ‘No, unless there is something else going on, I don’t think any person in a committed relationship or not a committed relationship is going to report someone of that situation.’ We’ve already had this conversation, and that was the slippery slope we went down four years ago.”
By first referencing the rape scenarios that the law has already addressed, Representative Gwyn suggests that everyone knows (at least from a legal perspective) that sexual encounters while one party is unconscious or unaware constitute rape. This first comment also establishes that rape can happen in “dating” situations and on “college campuses.” These comments demonstrate significant progress from the stereotype of rape as a stranger jumping out of the woods to attack an unwitting victim.
Yet, the representative’s hypothetical scenario invokes myths about what constitutes “real” rape while also demonstrating one of the potential pitfalls of affirmative consent legislation. If a person does not want to engage in a sexual encounter, but does so anyway, does that constitute rape? The problem with hypothetical scenarios is that we don’t have enough information. In what context did the partner agree? Were there conditions attached? What came before and after the proposed situation? Was there a history of physical, emotional, and/or mental abuse in the relationship? Could the partner legally consent? If the partner just laid there, is that really consent? And what does being married have to do with it? Why does it matter that they’ve been married several years?
The bill sponsor’s response gets to some of these questions. If the relationship were otherwise healthy and non-abusive, the partner could legally consent, and it didn’t begin a pattern of abuse, there is no reason to think that a person would report their partner in this situation. They’d probably just “lump it” with life’s other inconveniences and move on. At the same time, this response eclipses discussion of consent and healthy sex by avoiding the issue of whether the scenario constitutes rape or sexual assault under current law, under the proposed legislation, and/or in our social conscience. After all, does a resigned, “Fine” constitute the kind of consent we want to promote as a society?
These snippets from the committee’s debate and discussion over HB78 demonstrate the power of dominant stories of rape in legislative processes. These stories have taken up residence in our culture, and, without counter-narratives, they continue to persist as the only reality that many people know. At the same time, I did find a glimmer of hope. The idea that sex with an unconscious or severely impaired person constitutes rape has been added alongside the story that rapes are perpetrated by strangers who jump out of the bushes on dark nights. This new narrative recognizes that people may perpetrate sexual abuse against their intimate partners and that college students are especially vulnerable to becoming perpetrators and victims of rape. We’ve taken a small, incremental step toward the reality of rape.
The harmful effects of the dominant myth of rape on progressive legislation, social institutions, and individual victims illustrates what Chimamanda Ngozi Adichie’s calls “the danger of a single story.” As a society, we have a “single story” of rape. When a situation fails to align with that “single story,” people in power wield the single story as a weapon to reject and devalue the victim’s account of the act as rape. Affirmative consent seeks to empower everyone in a sexual encounter to state their desires and make sure that each party willingly and knowingly agrees to the interaction. Through broad social movements such as litigation over Title IX protections on college campuses (spurred by activism featured in the documentary The Hunting Ground) and the #MeToo movement, new stories have begun to make inroads against the single story. While the story of the “pure” rape continues to undermine policymaking efforts, the rise of these new, more accurate stories may be our best hope for holding our institutions accountable for stopping people (mostly men) from sexually assaulting and raping other people (mostly women).
Monica Williams, PhD is Associate Professor of Criminal Justice at Weber State University.