Utah Republican not sure husbands should be charged with raping sleeping wives

Lawmakers in Utah can’t decide whether a husband should be charged with raping his sleeping wife.

This story has been updated. Please see below.

"If an individual has sex with their wife while she is unconscious ... a prosecutor could then charge that spouse with rape, theoretically," said state Rep. Brian Greene (R-Pleasant Grove). "That makes sense in a first date scenario, but to me, not where people have a history of years of sexual activity."

A measure that would clarify the legal definition of rape was approved Tuesday by a legislative committee, but Greene and other lawmakers aren’t sure whether it will pass.

“I’m not trying at all to justify sexual activity with an unconscious person,” Greene said. “It’s abhorrent to me, but do we as a body a legislative body want to make that rape in every instance?”

The measure would make two changes to the existing law, which reads: “The victim has not consented and the actor knows the victim is unconscious, unaware that the act is occurring, or physically unable to resist.”

State Rep. Angela Romero (D-Salt Lake City) wants to remove “the victim has not consented” from the statute, and lawmakers are also considering whether to add language that specifies “the actor” knows the victim is incapable of knowing what is happening or resisting the due to a mental disease or defect.

“At the end of the day, when we took out that language, if somebody is unconscious you probably shouldn’t attempt to try to have sexual relations with them,” said Romero, who said the changes would help prosecutors and defense attorneys alike.

An attorney who helped draft the measure said the current law places to much burden on the victim to prove a case.

She cited a 2008 rape case from Cache County that was dismissed after a judge determined prosecutors had not proven a “lack of consent through words or conduct.”

“(The victim) woke up to the event happening her, but because of that statute, that statutory language, the case was dismissed,” said Donna Kelly, of the Utah Prosecution Council. “How can you express anything when you’re unconscious? It needs to change.”

Although Greene -- who wants to amend the U.S. Constitution to allow states to ignore federal laws they don't like -- expressed doubts about the proposed changes to the law, he agreed that sex with an unconscious person should be defined as rape with the possible exception of spouses.

“I hope this wouldn’t happen, but this opens the door to it — an individual has sex with their wife while she is unconscious, or the other way around if that is possible, but a prosecutor could then charge that spouse with rape,” he said.

UPDATE, 8:34 p.m. EST:KSTU reported that Greene released a statement expressing his support for the bill, while saying that his statements were "misinterpreted."

"I’m sorry for any unintended pain that my statements have caused," Greene's statement read. "I abhor sexual assault under any circumstances, including within marriage. Currently, under Utah law, sex with an unconscious person without consent is rape. I was concerned about a change in statutory language that would remove the element of consent and might have some unintended consequences. I was attempting to clarify the issue through the committee’s discussion."

Watch this video report posted online by KSTU-TV: