WARNING: Women, you are always consenting to sex in Nebraska.
This is abundantly clear based on arguments presented by defense counsel in a recent Lancaster County sexual assault trial, covered in the April 15 Lincoln Journal Star article “Jury Deliberating in Trial of ex-Husker.”
I wasn’t on the jury and make no judgment in this case. Everyone is entitled to due process. Nonetheless, I was highly disturbed by some of the arguments made by defense counsel during the trial. They highlight serious problems in our consent laws in Nebraska – problems that I have brought legislation to fix.
According to the article, defense attorney Mallory Hughes argued, “You can’t assume he (the accused) should’ve known she didn’t want to have sex. She saw him. He started having sex with her, and she didn’t do anything about it. The law does not require the young man to read her mind.”
Hughes went on to say, “So, if you don’t want it, just say that you don’t want it. And the law will support that decision. But you’ve got to make your voice heard. You can’t make somebody guess about what’s going on in your head.” Hughes said the law doesn’t require two people to talk about sex verbally or agree to sex.
Unfortunately, she is right.
So women (and men too), when you are incapacitated, when you are scared, when you are unconscious or can’t speak, when you have had too much alcohol, just know that even under those circumstances, Nebraska law presumes that you are consenting to sex with anyone.
As disturbed as many of us are by the arguments used by defense counsel in this case, the real problem is that the defense counsel arguments were absolutely correct. The good news is that we can fix the problem.
I introduced LB360 this year to create a “Yes Means Yes” or “affirmative consent” standard so that victims of sexual assault are better protected under the law. Affirmative consent is a knowing, voluntary and mutual decision among all participants to engage in sexual activity, according to Chandler Delamater with the Albany Law Review.
Consent can be given by words or actions, as long as those words or actions create clear permission to engage in sexual activity. Under this standard, silence or lack of resistance, in and of itself, does not demonstrate consent. Hence, yes means yes.
This bill is more than a definitional change. This bill is about empowering survivors of sexual assault who seek justice from their attacker. It reframes the way our legal system will approach situations in which individuals did not give voluntary, conscious and mutual consent in sexual encounters. It avoids victim blaming.
In 2017, Montana enacted a similar law, as their statues at the time did not account for victims who were unable to consent due to freezing during an attack. Missoula Deputy County Attorney Suzy Boylan pointed out that offenders were able to take advantage of victims who neither said “yes” or “no.”
Delamater has stated, “It is still the case in many jurisdictions today that a mere lack of consent is insufficient to establish rape.”
Bobbie Villareal, executive director of the Dallas Rape Crisis Center, has explained that "Rape is the only crime in which we turn the lens onto the survivor, the victim, and not onto the perpetrator. When someone gets shot, we don't ever ask them, why didn't you get away from that bullet?”
LB360 can encourage survivors to come forward with the knowledge that they will be protected under better standards for consent and will not have their cases dismissed because they were so brutalized, unconscious or threatened that they could not say no.
LB360 is currently in the Judiciary Committee of the Nebraska Legislature and will likely carry over to next session. Arguments made during this recent trial show, more than ever, why this bill is needed in our state.
Sex should always be mutually consensual. If in doubt, ask. Consent should never be presumed. I will continue my work to ensure passage of this legislation.
State Sen. Patty Pansing Brooks represents District 28, which covers south-central Lincoln, in the Nebraska Legislature.