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Arkansas House panel delays consideration of bill addressing consent in sex offense cases

Consent is focus of House panel by Will Langhorne | March 3, 2023 at 3:40 a.m.
FILE — The state Capitol is shown in this undated file photo.

A House panel on Thursday deferred a vote on a bill intended to address the legal terms "consent" and "forcible compulsion" in sex offense cases.

The House Judiciary Committee delayed its consideration of House Bill 1141 to allow officials to assemble reports on how the measure could impact state finances and criminal sentencing.

Before postponing action, the panel heard from supporters who said defining consent is integral to addressing sex offenses. An opponent of the bill objected to language he considers unconstitutionally vague, and a lawmaker questioned if the measure would make it harder to prosecute cases.

The bill's sponsor, Rep. Robin Lundstrum, R-Elm Springs, pointed to statistics on the prevalence of rape and said lawmakers could aid prosecutors and law enforcement officers by codifying a definition of consent.

"We need to ask ourselves what is wrong and how can we fix this," she said. "It's not a reflection on prosecutors or law enforcement. They only work within the parameters we set as legislators."

Joyce Short, chief executive officer of Consent Awareness Network, joined Lundstrum in presenting the bill, saying consent is a human right that must be included in law as a civil right. By defining consent, Short said the bill could help Arkansas raise its arrest rate for sexual offense crimes and save the lives of sexual assault victims who may attempt suicide.

The bill defines "consent" as "freely given, knowledgeable, and informed agreement by a person who is not physically helpless, mentally defective, mentally incapacitated, or under the legal age to consent."

Lundstrum's bill also would redefine "forcible compulsion," a term currently used in courts to determine if a sex offense occurred in a case. Under current law, "forcible compulsion" means "physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person."

The bill would expand the definition to include any "bodily impact, restraint, confinement, or threat of bodily impact, restraint, or confinement, whether express or implied" and any "other behavior that results in a sexual act against the will of the person upon whom the sexual act is committed."

Rep. Jimmy Gazaway, R-Paragould, said he appreciated the intent of the bill but questioned if the measure could make it more difficult for prosecutors to try sex offense cases by broadening definitions in state code. Having tried rape cases as a prosecutor, Gazaway said he felt defense attorneys would use these extended definitions to their client's advantage.

"The more definitions you introduce, the more words you give a defense attorney to play with, the more opportunity they have to pick it apart and argue to a jury that the prosecutor didn't meet this definition," he said. "My concern is that we do more harm by further defining these terms than we would without the definition."

Short said the concept of consent "is absolutely germane in determining whether or not a person has been violated." By relying on the term "forcible compulsion," Short said the current law is not doing enough to protect against sex offenses that may not involve violence.

Pointing to low arrest rates for sex offense cases, Short said there is "something very, very wrong with how the system itself is viewing whether or not a sexual assault took place."

Gazaway said in his experience rape cases aren't always prosecuted because victims change their story or are pressured by others from pursuing a criminal case. In some cases, there may be evidence issues.

"There's a number of reasons rape cases don't go forward, but it's not because we lack a definition of consent or we need to redefine forcible compulsion," he said.

Prosecutor coordinator Bob McMahon said he was unaware of prosecutors losing sex offense cases because of a lack of definitions. McMahon said the Arkansas Prosecuting Attorneys Association had taken a neutral stance on the bill, which means attorneys may support parts of the bill while not supporting other sections.

In a written statement provided by a spokesperson, Arkansas Attorney General Tim Griffin said, "We are neutral on the bill. However, we agree with prosecutors that it is unnecessary."

Rep. Steve Unger, R-Springdale, asked if additional definitions would aid prosecutors in bringing sex offense charges in cases such as a highly-publicized incident where students in the Huntsville School District were accused of having assaulted other classmates.

While he knew of the instance, McMahon said he was not familiar enough with the specifics to comment on how the bill might have affected it.

Christine Munson told committee members she was a victim of sexual assault and rape and implored lawmakers to pass the bill.

"Consent must be recognized," she said.

Rep. Andrew Collins, D-Little Rock, raised concerns about how the bill could remove language from state law defining rape as occurring when a victim is drugged or rendered oblivious by intoxication. Short said that what made these cases rape was that the victim was unable to give their consent.

Jeff Rosenzweig, with the Arkansas Association of Criminal Defense Lawyers, opposed the bill, saying the definition included for "forcible compulsion" was vague and unconstitutional. He pointed specifically to the phrase "any other behavior."

"This does not put anyone on notice for what conduct is prohibited," he said.

Rosenzweig claimed the bill also would create a consent level that is so high it would "catch a lot of people you didn't mean to."

Keith Lindley, a police officer, spoke in favor the bill, saying people accused of committing sexual assault often defend themselves by claiming their victims consented.

"They're using language that we have yet to clearly define," he said. "That's why this bill is important."

The bill includes provisions that would prevent consent from being used as a defense in cases involving incest. It also would bar consent as a defense in cases involving a school official who uses their position of trust or authority to engage in sexual contact with a student. A jailer who engages in sexual contact with a person in their custody who is not their spouse also would not be allowed to use consent as a defense.

Print Headline: Measure on sex offenses delayed

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