- Associated Press - Wednesday, February 4, 2015

SALT LAKE CITY (AP) - After a backlash from victim’s advocates, a Utah lawmaker apologized Wednesday for asking whether sex with an unconscious spouse should be considered rape during a discussion about a sexual consent bill.

Republican Rep. Brian Greene said he supports a proposal to make it clear that an unconscious person can’t consent to sex, but he was worried about unintended consequences.

“I abhor sexual assault under any circumstances, including within marriage,” he said in a statement, saying his words Tuesday were taken out of context.

Greene said Tuesday that sex with an unconscious person on a first date shouldn’t be allowed but it could be different in a long-term relationship.

“An individual has sex with their wife while she is unconscious or he, the other way around if that’s possible, I don’t know, a prosecutor could then charge that spouse with rape,” he during a House Judiciary Committee hearing. “I don’t know that we want to go there as a policy.”

Greene said there could be a defense of prior or implied consent in a relationship. Prosecutor Donna Kelly replied that a person must always legally consent to sex, every time.

Greene ultimately voted for the bill, which cleared the committee unanimously.

Rape Recovery Center Director Holly Mullen said advocates in the room were shocked by Greene’s comments, and they point to a larger problem with sexual assault.

“Rape and sexual assault can still be used as a tool of power and control, and we continue not to understand that people have a right to their own boundaries,” she said, adding that more open discussion about the issue could help.

“Rape in marriage is illegal in every state in the country,” she said. “It doesn’t happen often, but it does happen.”

Republican House Speaker Greg Hughes said Wednesday afternoon that while lawmakers scrutinize language in bills and the way they’re about to define things in law, “you just have to be careful when you’re asking those questions and maybe the impressions that you leave.”

“I think the intention of Rep. Greene was to explore unintended consequences, but I think even he would tell you that he’d like to choose his words more carefully,” Hughes said.

Current Utah law says sex with an unconscious person without consent is rape. Democratic Rep. Angela Romero said she sponsored the bill to remove the possibility that someone who is unconscious could be thought to have consented to sex.

“If someone is unconscious or they’re heavily medicated, how can they give you consent?” Romero said.

The bill now goes to House floor, though another lawmaker, Republican Rep. LaVar Christensen of Draper, questioned whether the proposal could tip the scales in favor of a victim.

Kelly replied that the state would still have to prove rape beyond a reasonable doubt.

Democratic Rep. Brian King said lawmakers should remove ambiguity in the law about sex with unconscious people.

“That’s rape, period, end of story,” King said. “Let’s make the statute clear. Let’s not dance around it.”

Greene, 49, is a lawyer from Pleasant Grove, about 35 miles southeast of Salt Lake City, who was elected to the Utah Legislature two years ago. He sponsored a controversial, failed bill in 2013 that would have barred federal authorities from regulating guns in the state.

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Associated Press writer Michelle L. Price contributed to this report.

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