Utah Bills Reflect State's Contradictions About Consent

Utah Bills Reflect State's Contradictions About Consent

SALT LAKE CITY — Within the space of several days recently, Utah legislators moved forward with a bill intended to explicitly criminalize the sharing of private sexually explicit photos without the consent of the people depicted, and at the same time defeated a proposal that would include the teaching of consent in the state’s sex education curriculum.

A new bill passed the state’s House of Representatives 68-3, clarifying that “sharing of intimate images of someone without his or her content is outlawed, regardless of whether a victim is alive to suffer emotional distress.”

The bill is now headed to the Utah Senate for consideration.

The bill was prompted by the killing of University of Utah student Lauren McCluskey, who was shot in October 2018 by a man she had dated. Before her death, the UoU student-athlete had “shared intimate photos with a university police officer to aid in the investigation of her eventual killer, Melvin Shawn Rowland, 37, who was blackmailing her with the photos,” local paper Deseret News reported.

According to an investigation by the Utah Department of Public Safety, the officer accessed those pictures “multiple times and showed them to others on his phone on at least four occasions,” the report continued. “Despite outcry over the police officer’s actions, Utah laws provided no avenue to prosecute the officer. The state’s revenge porn law requires victims to suffer ‘actual emotional distress’ for charges to be filed, which couldn’t occur because McCluskey was already dead by the time the officer shared the photos.”

Rep. Craig Hall (R-West Valley City), the sponsor of bill HB147, wanted to “close that legal gap and allow prosecution.”

But another lawmaker pointed out that the language in the bill says it does not apply to "lawful practices of law enforcement agencies."

“And so I’m wondering if this bill accomplishes what you’re trying to do, which would be to prohibit that behavior,” said Rep. Merrill Nelson (R-Grantsville). "[I]f there is an exemption for lawful practices of law enforcement and this bill does not make what happened unlawful, [then] the practice you’re trying to prohibit remains lawful.”

What HB147 Says (and Why It Is Important)

Utah’s legislature is engaged in a seemingly endless campaign to cope with technological developments and the mere fact that depictions of sex exist (defined by the governor in 2016 as “the public health crisis of pornography”).

The reason keeping track of Utah sex laws is important — particularly as they relate to depictions of sex in images and videos — is that the state is often used as a “test case” by religious groups to attempt to change legislation nationwide.

Their approach by groups like NCOSE (National Center on Sexual Exploitation) generally begins in Utah because of the state’s peculiar overlap between politics — particularly the local Republican Party — and the Mormon Church. Religious-conservative legislation has a better chance to pass the state legislature and then “copycat bills” can be introduced in other states citing Utah as precedent.

As The Guardian’s David Taylor has reported over the past three years, “a playbook known as Project Blitz, developed by a collection of Christian groups, has provided state politicians with a set of off-the-shelf pro-Christian ‘model bills.’”

“Some legislation uses verbatim language from the ‘model bills’ created by a group called the Congressional Prayer Caucus Foundation (CPCF), set up by a former Republican congressman which has a stated aim to ‘protect religious freedom, preserve America’s Judeo-Christian heritage and promote prayer,’” Taylor wrote.

HB147 is described by its sponsors — Rep. Hall and State Senator Todd D. Weiler, a staunch anti-porn and anti-sexual expression crusader — as a “Revenge Porn” bill.

However, a closer look at HB147 shows the following:

  • HB147 claims its aim is to “modify the requirement of actual emotional distress or harm from the offense of distribution of intimate images.”
  • The bill then very broadly defines “distribute" as “selling, exhibiting, displaying, wholesaling, retailing, providing, giving, granting admission to, providing access to, or otherwise transferring or presenting an image to another individual, with or without consideration.”
  • This clearly attempts to create liability for any transmission of these images.
  • The bill then also very broadly defines “intimate image" as “any visual depiction, photograph, film, video, recording, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, that depicts" the following:
    • (i) exposed human male or female genitals or pubic area, with less than an opaque covering;
    • (ii) a female breast with less than an opaque covering, or any portion of the female breast below the top of the areola; or
    • (iii) the individual engaged in any sexually explicit conduct.
  • The bill defines “sexually explicit conduct" as “actual or simulated” instances of:
    • (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
    • (ii) masturbation;
    • (iii) bestiality;
    • (iv) sadistic or masochistic activities;
    • (v) exhibition of the genitals, pubic region, buttocks, or female breast of any individual;
    • (vi) visual depiction of nudity or partial nudity;
    • (vii) fondling or touching of the genitals, pubic region, buttocks, or female breast; or
    • (viii) explicit representation of the defecation or urination functions.
  • The bill then defines “simulated sexually explicit conduct" as “a feigned or pretended act of sexually explicit conduct that duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct.”
  • The bill defines “the offense of distribution of an intimate image” as occurring if:
    • (i) the actor knowingly or intentionally distributes to a third party an intimate image of an individual who is 18 years old or older and knows or should know that the distribution would cause a reasonable person to suffer emotional distress or harm;
    • (ii) the actor knows that the individual depicted in the image has not given consent to the actor to distribute the intimate image;
    • (iii) the intimate image was created by or provided to the actor under circumstances in which the individual depicted in the image has a reasonable expectation of privacy; and
    • (iv) actual emotional distress or harm is caused to the individual depicted in the image as a result of the distribution
  • Reflecting the situation of the McCluskey case, the bill specifies that “if the individual depicted in the intimate image is incapacitated or deceased,” then “actual emotional distress or harm is caused to the individual depicted in the image as a result of the distribution” is not an element to decide guilt.
  • The bill then carves out exceptions for “lawful practices of law enforcement agencies, prosecutorial agency functions, the reporting of a criminal offense, court proceedings or any other judicial proceeding; or lawful and generally accepted medical practices and procedures.”
  • HB147 also appears to carve out an exception for commercial pornography by exempting “an intimate image if the individual portrayed in the image voluntarily allows public exposure of the image” and “an intimate image that is portrayed in a lawful commercial setting.”

The wording of the bill, however, leaves open the possibility that anyone speaking for an "incapacited or deceased" individual can allege that a shared image "would cause a reasonable person to suffer emotional distress or harm," and that whoever showed that image — by any means — "knows or should know" that it would do so.

Utah Refuses to Add Consent Teaching to State’s Sex-Ed

But if HB147 aims to legislate consent based on “emotional distress of harm” of individuals dead or alive, this week the same legislature adamantly refused to incorporate the teaching of consent to the state’s sex-ed curriculum.

The House Education Committee yesterday defeated, 4-7, a bill that would have required instruction about what, and what does not, constitute consent, according to Deseret News.

HB177 was sponsored by Rep. Carol Spackman Moss (D-Holladay), and “would have required instruction on coercion, sexual violence behavior deterrence and sexual assault mitigation as part of sex education instruction for students in grades 7-12.”

“Parents must opt-in for their child to participate in sex education classes,” the paper reported.

Moss had to explain that her motivation was not “to get some liberal curriculum into the schools, as many people have made that accusation, but rather to give kids information that they can use to protect themselves.”

Touching on the “revenge porn” issue magnified by the local press to promote a moral panic, Moss added that consent “could be saying 'no' to [the] sending a photo of yourself, or 'no' to your sending me a photo.”

A victim's advocate who formerly worked at Utah State University supported the bill and said students had disclosed to him, “they had ‘done sexual things without getting consent and didn’t have a clue’ that they legally should.”

“The misconception that we’re having here is that there are the monster perpetrators, the ones that are are manipulative and vile,” the advocate said. “But there are also these unintended, frankly ignorant perpetrators who just need a little education to understand that they have to ask, ‘Is it okay if I kiss you?’ or, ‘Is it okay if I do X, Y or Z beforehand?’”

Moss asked other lawmakers to grapple with the state’s documented culture that makes “Utah teens continue to grapple with unhealthy and abusive dating relationships.”

Purity Culture and Refusal Skills

The current situation — an emphasis on so-called “purity culture” and only teaching “refusal skills” — “puts the responsibility on victims to say 'no'" claimed supporters of the bill.

“We know that it’s perpetrators who need the education because people who say 'no' still get assaulted,” said the victims’ advocate.

Deanna Holland, opposing the measure, said the teaching of “refusal skills” — which is currently part of the state standards — “lets us teach children the necessary skills the good Representative wants.”

“I’m uncomfortable adding consent into our curriculum when our current curriculum already teaches these safety skills,” Holland stressed, before the consent proposal was struck down by the committee.

Several Mormons and ex-Mormons have spoken about how “purity culture” — instead of comprehensive sex education— contributes to Utah’s peculiar attitude about consent. Kidnapping and rape survivor Elizabeth Smart, for example, explained in a 2016 interview how the church’s “purity culture” was hurtful to her.

Smart recalled a particularly harmful analogy during a class she attended after her ordeal.

“You’re like this beautiful fence,” a Mormon lecturer said. “And you hammer these nails in, and then every time you have sex with someone else, it’s like you’re hammering in another nail. And you can’t take them out, you can repent them, but the holes are still there.”

Smart was traumatized by that analogy, which is commonplace in the state’s culture.

“I just remember thinking, ‘This is terrible. Do they not realize I’m sitting [here]? Do they not realize that I’m listening to what they’re saying?’ Those are terrible analogies. No one should use them, period,” Smart said.

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