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Prosecutors and defense attorneys said Friday the "yes means yes" sexual affirmative consent bill was written in a way that is too confusing.  

"It's difficult for us as prosecutors to understand the language within this bill, let alone communicate that to jurors who need to understand what elements we have to prove ... beyond a reasonable doubt," said Molly Keane, representing the Nebraska County Attorneys Association.

Keane, a deputy Douglas County Attorney whose focus is sexual assault prosecutions, was testifying in front of the Legislature's Judiciary Committee in opposition to the affirmative consent bill (LB988) brought by Lincoln Sen. Patty Pansing Brooks. 

Keane voiced admiration for the motivation behind the bill and everything it was attempting to accomplish but, she said, the way it was written wouldn't bring about what its sponsor wanted. 

The bill would adopt affirmative consent as the standard for criminal sexual assault cases. Pansing Brooks said it refocuses the way the legal system approaches a case. 

Nine people testified in support of the bill, many of them young women and men, and some of them telling a story of their own sexual assault. They said proof of those rapes was elusive under current law because, while they didn't say yes, they didn't say no, either. 

University of Nebraska-Lincoln student Miranda Melson said she was raped her sophomore year. When she filed a complaint under Title IX, she was told the greater weight of the evidence showed it was consensual sex because she did not inform the accused through words or actions that she did not consent to sexual activity. 

He had not asked her if she consented, she said. And telling him she was more comfortable with her clothes on, but him unbuttoning her shirt anyway wasn't enough.

It was determined consensual because she did not explicitly say no, she said. 

No charges were filed, she said. 

State law now says a person must express a lack of consent through words or conduct, Pansing Brooks said.

With the bill, consent means words or overt actions that indicate a knowing and voluntary agreement, freely given, to engage in sexual contact or intercourse. And a person could withdraw consent with words or conduct.

Alexis Lipson, who said she was raped as a student at Doane University, knew the man and had sex with him once before. But when she met with him to talk about it, he attempted to convince her to do it again, she said. She resisted, but then decided the only way out of the car was "to get it over with." 

He assumed if she did it once she would do it again, she said.

"He also assumed that he could push for a yes, but once there was a lack of a verbal 'no' he was free to do as he wished."

Jessica McClure told the committee her lack of a verbal no when she was sexually assaulted was the result of freezing in a moment of panic. 

Eli Sherman, a Sigma Chi fraternity liaison for Prevent UNL, a group of students, staff, and faculty that works to end relationship and sexual violence through peer education, said often victims are unable to vocalize resistance while being assaulted.

"Only actually giving consent should indicate consent. The absence of resistance should not," he said. 

Attorney Spike Eickholt, representing  the Nebraska Criminal Defense Attorneys Association, said his opposition should not be interpreted as disrespectful or unsympathetic to victims. 

But all the scenarios he heard at the hearing are already covered in existing law. The definition in the bill of what consent means, he said, is convoluted and would only cause chaos in this area of the law. 

If the judge is unable to instruct the jury properly, and the jury isn't able to understand what that instruction means, that will lead to an acquittal or a conviction that's reversed on appeal.

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On Twitter @LJSLegislature.


State government reporter

JoAnne Young covers state government, including the Legislature and state agencies, and the people they serve.

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