Alaska lawmakers want to modernize outdated state definition of consent

When Rebecca Farrell discusses healthy relationships with her students, she describes consent as something that is freely given, reversible, informed and enthusiastic. This grouping of words is also known as FRIES. Farrell is a physical science and health teacher at Thunder Mountain High School in Juneau.

“If somebody says, ‘Hey, you want to go upstairs?’ and they start touching you, every step of the way, you should be touching base with each other. Does this feel good? Do you enjoy this? And at any time, if it doesn’t, you need to say, ‘I’m uncomfortable with this? I don’t want to do this,’” Farrell explained during a phone interview May 13. A person can also say no after saying yes. “Even though you said yes before, it doesn’t necessarily mean it’s yes every single time.”

These elements of consent that Farrell teaches are encapsulated in House Bill 5, which aims to modernize the state government’s decades-old definition of consent that’s currently in law.

“It’s among the most important things we can do to address the problem with sexual assault in Alaska,” bill sponsor Rep. Geran Tarr, D-Anchorage, said during an interview at the Capitol May 6. “When a sexual assault is reported, a key element of establishing whether there was a sexual assault was – was there consent? Yes or no?”

In the working draft of HB5: “‘consent’ means a freely given, reversible agreement specific to the conduct at issue… ‘freely given’ means agreement to cooperate in the act was positively expressed by word or action.” 

To establish sexual assault, current Alaska law requires the use of force or the threat of force. Tarr said it doesn’t take into account a trauma response of freezing, when a person doesn’t say or do anything when they’re being assaulted.

“As a matter of safety, they feel like the safest thing to do is just freeze. That’s how they’ll stay alive and survive the assault. They will be sexually assaulted, but they will be alive. And the way the current law is written, it doesn’t capture that behavior,” Tarr said.

Brenda Stanfill understands the freeze response well. Stanfill is executive director of the Alaska Network on Domestic Violence and Sexual Assault and she knows what questions victims of sexual assault get asked.  

“‘What do you mean, you didn’t move when he left the room?’ and they try to explain that, ‘I couldn’t move. My body was frozen.’ And at that point in time, sitting in a SART [Sexual Assault Response Team] exam as an advocate, I know that that case can no longer go forward, because there will be an argument that she could have left right then. So, there was no force, she wasn’t being held against her will, yet her body could not move. These are the kinds of crimes right now that, when we look at what our women are experiencing, cannot be prosecuted,” Stanfill said at the May 12 House Finance committee hearing on the bill.

The Department of Law and the administration supports efforts to change the definition of consent, according to John Skidmore. Skidmore is deputy attorney general for the Criminal Division of the Alaska Department of Law. He also spoke during the May 12 House Finance Committee hearing on the bill: “Alaska leads the nation and has for many years in sexual assault statistics. And so, for our law to be so outdated is certainly a concern and should be a priority of all of us in government to make sure that we address those issues and correct them properly.” 

Under current law, he said you could have a scenario where someone does say no and it will still not be considered sexual assault.

“If you think somebody’s saying, ‘No, I don’t want to have sex,’ and then the other person goes ahead and engages in a sexual act with them – if you think that should be a sexual assault, then you need to take action, because that’s not what’s currently in our statutes. If you’re fine with somebody saying no, and that not being a crime, you don’t need to do anything because that’s where our law is today,” Skidmore said. “What you have to do is set the policy about the conduct that you think should be criminalized.”