Legislation signed to update the legal definition of consent

By Megan Ganon
Under current Alaska state law, it is not enough for a sexual assault victim to say “no” to prove that consent was not given. The use of force or the threat of death or physical injury must be involved in the crime. This will change in January.
Last Thursday, July 28, Governor Mike Dunleavy signed new legislation that updates the legal definition of consent in sexual assault cases.
House Bill 325 defines consent as “a freely given and reversible agreement specific to the conduct at issue by a competent person.” In this case, “freely given” means that “the agreement to cooperate in the act has been positively expressed by word or deed”.
“Finally, no means no,” Rep. Sara Rasmussen (R-Anchorage) said in a statement. “I hope this sends a clear message that rape and sexual assault will no longer be tolerated in our state.”
Rep. Geran Tarr (D-Anchorage) originally introduced legislation updating the Consent Act as House Bill 5 in an effort to address the systemic problem of sexual assault in Alaska, which has the highest rate of rape. high in the country. On the last day of the May legislative session, Tarr’s Law was included as an amendment to House Bill 325, which was sponsored by Rasmussen and passed.
Tarr had advocated for change because Alaska’s sexual assault law had no definition of consent — only a definition of “without consent,” which, she told The Nome Nugget last year “seems fundamentally wrong”. For four decades, “without consent” in Alaska meant that an individual was coerced by the use of force or fear of death or injury. “Without consent” could also apply to cases where the person is incapable.
Nome defenders Lisa Ellanna, Niviaaluk Brandt and Panganga Pungowiyi have been active in Nome addressing past law enforcement failures to investigate sexual assaults in Nome. “I got a phone call from Rep. Geran Tarr (Anchorage) in 2019,” Lisa Ellanna recalled. “At the time, she was calling meetings and having conversations across the state, with advocates, survivors, public safety and service providers, about how Alaska’s sexual assault laws could be improved. We spent two hours on the phone talking about the realities of how the justice system engages survivors and how things could be improved. We’ve talked about the root of it all… Alaska’s consent laws, or the lack of any definition of consent.
Ellanna said Tarr has worked with hundreds of Alaskans, ensuring their voices and concerns are heard and expressed in the language of House Bill 5.
Over the next few years, the Nome Lawyers Group continued to address lawmakers at committee meetings, testifying in favor of Bill 5, which passed unanimously during that session. year, after being incorporated into Rep. Sara Rasmussen’s Bill 325.
At last week’s signing ceremony, Ellanna, her daughter Nivi Brandt and Pungowiyi were in attendance.
“Thank you Governor Dunleavy, and thank you Representative Tarr for the opportunity to share some thoughts,” Ellanna said at the ceremony. “First, let me say that I speak on behalf of many survivors who bravely spoke up and shared their stories at the risk of their lives, so others could seek justice. This legislation is one of the most significant steps taken by Alaska to ensure justice for survivors of domestic violence and sexual assault. I applaud lawmakers who are working hard to hear our voices, come together, and do the important work to make these long overdue laws a reality. Thanks.”

To prosecute a sexual assault under current state laws, “you’re looking for more than someone saying ‘no,’ although that could certainly be part of the evidence,” said Nome District Attorney John Earthman. “You’re looking for a type of threat, a type of harm, a type of injury, a type of strength.”
Establishing a positive definition of consent is a major change, but Earthman told The Nome Nugget that as of now, it’s hard to predict how the law will affect the way business goes forward.
“It broadens the reach,” Earthman said. “There will be more convictions that fall under this new definition. But these will always be difficult cases, period. The burden of proof will always be high.
Earthman explained that in most sex crimes, the decisive issue is usually not a disagreement over the physical act that occurred, but rather proving whether the perpetrator coerced the victim, or knew she was. was passed out or heavily drunk, for example. With the new law, Earthman said, “the big investigative, evidentiary and evidentiary issues are going to be what communication preceded or was ongoing at the time of the misconduct?”
He added that from a practitioner’s perspective, the new language could change the way prosecutors handle groping cases, where touching is not preceded by any freely given agreement or consent. “Over the years, we’ve always had a problem with groping cases,” Earthman said. He said a harassment law had been amended to deal with groping, but now groping has essentially been turned from a misdemeanor to a felony. “We will definitely have a few a year, so that’s a big change.”
The new law doesn’t take effect until January, and Earthman said his office still has “tons of cases” to resolve under the old definitions. As part of their preparations for the changes, Earthman and other prosecutors will attend a statewide training in October.
“You can be sure we’re going to be spending quite a bit of time with the officers — the NDP and the soldiers here — going over what the new laws mean,” he said. “It’s going to affect the evidence that we’re looking for, the questions that are going to be asked. It’s a big project. »
House Bill 325 also achieves a few other crime-related goals: It requires that rape kits must be tested within six months instead of a year. It codifies revenge porn as a crime of domestic violence. It requires those requesting a name change to alert the courts of criminal charges and sex offender, probation or parole status. The law also revokes the teaching certificates of those accused of child pornography.

About Charles D. Goolsby

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