The Utah Legislature is currently considering HB 74, which would make it impossible to consent to certain sex acts. A person reading or watching the local news coverage would have a difficult time figuring out what the proposal actually changes. Judging by the comments of the respective coverage, it seems people are not aware that the law—as currently written—already criminalizes the conduct they find objectionable.

HB 74 would make it so that no matter how much both consenting adults might enjoy certain sexual activities, in the eyes of the law, it would be rape. The following words are proposed to be eliminated from two separate subsections of Utah Code 76-5-406:

(5) the victim has not consented and the actor knows the victim is unconscious, unaware that the act is occurring, or physically unable to resist;
(6) the actor knows that as a result of mental disease or defect, the victim is at the time of the act incapable either of appraising the nature of the act or of resisting it;

There are many potential acts that would now improperly be defined as a rape, but here are just a couple ways the bill is objectionably over-inclusive:

Consent Explicitly Given: Imagine a married person asked for the following from his or her spouse, “I like to be woken up by [specific sex act]. Would you mind doing that for me tomorrow morning? On my birthday? On Valentine’s Day?” Under the proposed changes to subsection 5, the explicit consent is irrelevant to whether or not a rape has occurred. At the time of the initiation of the sex act, one person would be unaware that the act is occurring and physically unable to resist. Whether or not all people would enjoy having their partner lovingly awaken them with a sex act, the Utah Legislature should not make it illegal for the people who do enjoy it to have fulfilling sex lives.

Bondage: A prosecutor could bring charges, and potentially convict someone for rape, under both proposed subsection changes. Regardless of how much a person might enjoy being tied-up, handcuffed, or otherwise restrained, the person is likely unable to physically resist the sex act. By making consent irrelevant under subsection 5, and having complete mental capabilities irrelevant under subsection 6, a person who engages in bondage could potentially be convicted of rape.

A few people have argued that if two people are consenting, then no one will report a crime. I have a couple responses to that. First, some people enjoy talking to their about their sex lives. No one knows what a busy-body neighbor or an over-zealous police officer will do with the information. Consenting adults should not have to worry about the government intruding. Second, there is no statute of limitations for rape in Utah. Many years later, after a relationship has turned sour, someone could report a “rape” that occurred between two consenting adults. The other person would be sure to draw an objection in court for even pointing out that the act was consensual.