A Utah lawmaker has questioned as to whether having sex with an unconscious person necessarily constitutes rape. He raised this issue during hearings on a bill that removed an ambiguity in current law by clearly stating that it was rape. Prosecutors had said that the existing ambiguity made it difficult to pursue charges in certain cases, and thus made women who had been drugged or intoxicated more reluctant to come forward
The lawmaker said that while it may be rape if it occurred on a first date, it may not be so if the couple were married or had a prior sexual relationship. He and another lawmaker eventually overcame their misgivings and the bill passed unanimously.
But his comments illustrate the problem that always plagues rape cases, that if consent is given at least once, then there seems to be an implication of at least implied consent on subsequent occasions and the burden of proof shifts to the complainant.
In another case, the Florida Supreme Court held hearings on a case to decide whether the term ‘intercourse’ included gay sex. The case arose because a man was prosecuted under a 1986 law dealing with HIV transmission that was written in gender-neutral language and thus did not explicitly elaborate on what intercourse was. His defense attorney said that other definitions of sexual intercourse excluded all non-heterosexual sex acts and so the law could not be applied to him.
A ruling is expected in a few months.