HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"  4:46:07 PM CHAIR KREISS-TOMKINS announced that the final order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5, "An Act relating to sexual abuse of a minor; relating to sexual assault; relating to the code of military justice; relating to consent; relating to the testing of sexual assault examination kits; and providing for an effective date." 4:47:08 PM The committee took an at-ease from 4:47 p.m. to 4:51 p.m. 4:51:37 PM CHAIR KREISS-TOMKINS noted that there were experts available to answer questions pertaining to criminal law and rape kits. After ascertaining that there were no immediate questions from committee members, he stated that in Alaska, the legal age of marriage was 16 or younger with the proper authorization. 4:52:33 PM REPRESENTATIVE TARR, prime sponsor of HB 5, interjected to note that for 16- and 17-year-olds, marriage required written parental consent. Marriage involving 14- or 15-year-olds required written parental consent, as well as a court hearing in which the parents and the minor child were involved. Permission from the Superior Court was also required in addition to proof that the marriage was in the best interest of the minor. She reiterated for purposes of the proposed legislation, that 16- and 17-year-olds could get married with written parental consent. CHAIR KREISS-TOMKINS in regard to statutory rape, questioned whether it mattered if the individuals were married. REPRESENTATIVE TARR understood that sexual assault laws applied to married couples. She explained that HB 5 included a provision to account for [sexual assault] involving, for example, a 16-year-old and a 27-year-old who were unmarried. CHAIR KREISS-TOMKINS asked Mr. Skidmore to comment on the age of consent versus age of marriage in Alaska. 4:55:14 PM JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney General, Department of Law, in response to Chair Kreiss-Tomkins, said he agreed with Representative Tarr's analysis. He explained that in terms of consent, marriage wasn't a factor in regard to sexual assault laws. Alternatively, he speculated that when considering statutory rape of a minor - also referred to sexual abuse of a minor (SAM) - [marriage] might only be a factor if the age difference between the two individuals was more than 10 years, should the bill pass. He added that was unsure whether marriage would be an exception under those circumstances. CHAIR KREISS-TOMKINS requested that Mr. Skidmore follow up with information on whether a marital exemption exists legally. 4:56:47 PM JAMES STINSON, Director, Office of Public Advocacy, Department of Administration, understood that there was not a specific provision for SAM statutes. He noted that there could be an affirmative defense made for consensual sexual activity within a marriage in that age range; however, he maintained that one did not currently exist for SAM charges. 4:57:39 PM REPRESENTATIVE EASTMAN questioned whether marriages from other states or jurisdictions with a lower age of consent were recognized in Alaska. MR. SKIDMORE answered yes, marriages from other states were recognized in Alaska; however, he divulged that it was not an area of law that he was explicitly familiar with. 4:58:36 PM REPRESENTATIVE CLAMAN sought to confirm that Mr. Stinson had said that there was no marital defense for a SAM charge at this time. MR. STINSON confirmed to the best of his knowledge. 4:59:33 PM RENEE MCFARLAND, Deputy Public Defender, Public Defender Agency, Department of Administration, stated that AS 11.41.445 made marriage an affirmative defense for the purposes of the SAM statute if the victim was the legal spouse of the defendant unless the offense was committed without the victim's consent. REPRESENTATIVE CLAMAN sought to confirm that sexual relations between a 17-year-old and a 30-year-old would be a crime unless they were married. MR. SKIDMORE confirmed [that before the marriage it would be a crime and after they were married it would not]. REPRESENTATIVE CLAMAN asked for verification that a marriage in another state at the age of 16 would be valid in Alaska for the purposes of this affirmative defense. MR. SKIDMORE sought to confirm that Representative Claman had asked whether the affirmative defense would be recognized for ages 16 and 17. REPRESENTATIVE CLAMAN confirmed. MR. SKIDMORE answered yes, [that that the affirmative defense would be recognized for a 16-year-old and a 17-year-old.] 5:02:05 PM REPRESENTATIVE VANCE asked for confirmation that the bill was proposing "that anything less than 10 years with a minor under the age of 18 would no longer be considered statutory rape." MR. SKIDMORE attempted to clarify the question. REPRESENTATIVE VANCE inquired about the statutory rape statutes. MR. SKIDMORE explained that SAM statutes indicated that minors did not have the ability to consent at age 13, 14 or 15 when there was a certain age gap between the offender and the victim. For those minors (ages 13, 14, or 15), the proposed legislation would make it a higher-level offense when the age gap between the victim and the offender was 10 years; additionally, with a 10-year age gap between the victim and the offender, the bill would add a conduct if the victim was 16 or 17. CHAIR KREISS-TOMKINS concluded that in present law, a 16-year- old could have consensual sex with a 26-year-old (or someone older) and a 17-year-old could have consensual sex with a 27- year-old (or someone older); however, should the bill pass, those sexual relations would constitute SAM in the first degree. 5:05:08 PM REPRESENTATIVE VANCE requested a visual representation of present statutes compared to the proposed legislation to better understand the implications of the bill. REPRESENTATIVE TARR directed attention to Section 4, paragraph (1), on page 3, lines 27-31 of SSHB 5. She explained that for ages 13, 14, and 15, the bill would increase the "penalty" if the age gap [between the victim and the offender] was 10 or more years. Additionally, for 16- and 17-year-old victims, the bill would create a crime when the age gap between the victim and the offender was 10 or more years. CHAIR KREISS-TOMKINS pointed out that there could be scenarios in which a 17-year-old and a 27-year-old were in a consensual sexual relationship. He understood that SAM 1 was an unclassified felony with a minimum of 20 years in prison; therefore, per previous conversations about rates of incarceration and "proportionality," he said he wanted to flag that as an area that was slightly concerning. REPRESENTATIVE TARR said in regard to the sentencing ranges, she was trying to work with a number of organizations to balance victims' rights against offenders' rights. She relayed that on average, perpetrators of child sexual abuse had more than 100 victims; further, that there was no standard for effective treatment. She added that reoffending and recidivism was common for sex offenses. She stated that the level of harm was troubling and expressed her hope that as a result of changing the laws, high-frequency perpetrators would be incarcerated. 5:11:30 PM REPRESENTATIVE CLAMAN sought to confirm that presently, a 16- or 17-year-old could legally engage in sexual relations with a 30- year-old. MR. SKIDMORE replied yes, as long as the sexual conduct was consensual. He added that no SAM statute specified that a 16- or 17-year-old could not consent. REPRESENTATIVE CLAMAN inquired about DOL's position on the bill in its current form. MR. SKIDMORE said DOL was neutral. REPRESENTATIVE CLAMAN asked whether there had been any research on the potential impact of this bill on Native communities, which were already overrepresented in the Department of Corrections (DOC). REPRESENTATIVE TARR answered yes, she explained that she had worked closely with Alaska Native women in drafting the proposed legislation to reflect their experiences. More recently, she reported working with the Alaska Native Justice Center, as well as the Alaska Network on Domestic Violence and Sexual Assault. She maintained that the goal was to listen to survivors and incorporate their personal experiences in balance with the criminal justice system response. REPRESENTATIVE CLAMAN said he appreciated that response, but it lacked statistical data on the real overrepresentation of minority communities in Alaska's jails. He asked a statistical analysis on how the bill would impact the prison population. REPRESENTATIVE TARR stated that she did not, as she did not possess the resources to conduct such research. She maintained that her strong support for human rights and survivors was always reflected in the legislation she sponsored. 5:14:34 PM REPRESENTATIVE VANCE inquired about the percentage of sexual assault offenders in DOC facilities. She reported that at least 59 percent of Alaskan women had experienced violence in an intimate relationship. She relayed that her constituents would want to exercise the full extent of the law against sexual assault crimes especially against children. She opined that Alaskans were not thinking about the prison "capacity" when it came to justice for crimes against children. She urged her fellow lawmakers to take those beliefs into account. CHAIR KREISS-TOMKINS asked Ms. Meade to estimate the percentage of inmates that were incarcerated in Alaska correctional facilities for crimes of sexual misconduct. 5:16:53 PM NANCY MEADE, General Counsel, Office of the Administrative Director, Alaska Court System, declined to estimate that figure and deferred the question to DOC. REPRESENTATIVE VANCE questioned the percentage of sexual crimes, either fully prosecuted or not, that came through the courts. MS. MEADE offered to follow up on the number of sexual misdemeanors and felonies that were filed. 5:17:51 PM REPRESENTATIVE CLAMAN explained that his prior request for data stemmed from apprehension about the consistently increasing prison sentences without any meaningful benefit in terms of public safety. He expressed his concern about the impending impacts on minority communities. He acknowledged Representative Vance's comments and the importance of imposing "no mercy" against some crimes; however, he recalled his experience in rural communities where the threat of 15- or 20-year sentences factor into people's unwillingness to come forward. He conveyed apprehension about the idea of incarcerating a 30-year-old who was engaging in consensual sex with a 17-year-old and sending him/her away for a minimum of 20 years on an unclassified felony. He reiterated that he asked the data related questions to better understand the impact that these decisions would have. He maintained his belief that the intention of the proposed legislation was well placed, but he was not sure it would result in the desired effect. REPRESENTATIVE TARR said she agreed with Representative Claman and Representative Vance. She recalled that when she initially presented the legislation, she had questioned the appropriate "criminal justice response" and the appropriate length of incarceration to no longer cause harm. She said she was not capable of answering that alone or hearing the stories of human suffering. She reiterated that she was asking for help and emphasized that she would be receptive to ideas. She further noted that she had considered a sentence of 7-10 years for first-time offenders. She expressed her hope that as a woman who had never felt safe living in Alaska, the legislature would give the proposed legislation serious consideration and evaluate the human rights of everyone involved. 5:22:57 PM CHAIR KREISS-TOMKINS asked Mr. Skidmore to speak to the data on declined prosecutions and why they occur; additionally, he asked to what extent an insufficient definition of consent was a factor. MR. SKIDMORE said he did not know the rate of declinations; however, the vast majority of declinations were due to insufficient evidence, he reported. He explained that much of that was associated with the nature of sexual assault, where they occur, and the type of evidence that was generally available. He opined that changing the definition would not change the ability to accept a significantly higher number of cases for evidentiary reasons; nonetheless, it would allow cases that had been declined as a result of "a lack of use of force or coercion" to be accepted. He shared his belief that it would be challenging to provide a statistic analysis of how [the proposed legislation] would increase cases, noting that the same challenges would continue to exist because many sexual assaults occur between two individuals only; therefore, changing the definition would not likely change the evidence of consent that's available. He added that despite the continuous challenges, [DOL] was working on ways to improve investigatory practices and prosecutorial training. He concluded by reiterating that sexual assault would continue to be a difficult crime to prosecute. CHAIR KREISS-TOMKINS sought to confirm that Mr. Skidmore had stated that the reason many prosecutions were declined was due to a deficit of evidence rather than the deficient definition of consent. MR. SKIDMORE answered yes. He went on to explain that the numbers indicated that there was a significant difference in the number of cases reported to law enforcement compared to the number of cases referred to DOL. He added that he was unsure of whether the unrefereed cases were driven by the definitional problem or a lack of evidence. For that reason, he said he was hesitant to definitively quantify the proposed legislation's potential impact. 5:28:56 PM REPRESENTATIVE CLAMAN understood that the present definition that had been applied by both by law enforcement officers and the prosecutor's office was based on the court analysis of the statute rather than the statutory language itself. He asked whether that was correct. MS. MCFARLAND replied that she was not aware of many cases in which the court had strayed too far from the language in the statute. Further, she relayed that the court had read a requirement into the sexual assault statutes that the defendant recklessly disregard the lack of consent, which was not provided in the statute itself. REPRESENTATIVE CLAMAN recalled hearing that the consent language focused the inquiry more on the victim and less on the offender by inviting the defense to raise questions about how the victim may or may not have communicated his/her consent or thereof in the past. He asked if the statute change would put more focus on the victim or the offender. MR. SKIDMORE said he did not have a sense whether this would change how the defense bar sought to defend sexual assault cases. He opined that the issue of consent was a question of the perpetrator's assessment of that lack of consent; however, talented and creative defense attorneys could return to how that assessment was influenced by a victim's words or conduct. He said it would always be one of the issues involved in litigating these types of cases. 5:33:14 PM REPRESENTATIVE CLAMAN asked whether the proposed changes to the consent law would put more focus on the victim compared to the current statute. MS. MCFARLAND relayed that the Public Defender Agency believed that compared to the current definition, the proposed changes would switch the focus to the victim. She added that the present statute focused on the defendant's conduct of coercing the victim, whereas the proposed definition entails a freely given reversible agreement. She opined that switching from whether the defendant coerced the conduct to whether there was a freely given agreement would shift the focus from the defendant's conduct to the victim. REPRESENTATIVE CLAMAN asked Ms. McFarland to illustrate her previous statement with a hypothetical scenario. MS. MCFARLAND said it was hard to come up with a hypothetical on the spot because the proposed definition expanded the type of conduct that would fall under the statute. REPRESENTATIVE CLAMAN directed the question to Mr. Stinson. 5:36:28 PM MR. STINSON remarked: Currently, there's essentially the rape the shield statute which prevents impermissible evidence being admitted ... 'because a victim had sexual relations with certain people, they are therefore likely to have had sexual relations with the defendant' - that's impermissible. But evidence of a victim's prior sexual conduct is admissible if it's relevant to a material issue in the case. So, for example, if their individual relationship had a certain type of consent or certain types of ritual or habit - that might be admissible. I think when you're dealing with affirmative consent, there is at least the possibility that a creative attorney could make the argument that what they're seeking to admit is testimony from other people who may have been a partner of that person who had consent in a certain way from that victim. And, so, I think the argument there would be, we're not admitting this for the purpose of showing that because the victim had sexual relations with these other people that therefore, it's likely that she also consented to the defendant. ... 'For example, this person always wink, says these words, and does this, and that's their signal that they are ready to engage in relation.' If in a small community you had people that had testimony like that, I could see that there would be an argument before a trial court judge that the manner of affirmative consent is what you're seeking to admit and that its irrelevant because the defendant had awareness that that was the type of affirmative consent that that person gives and that it was the same type of affirmative consent given in the past. So, I can see an attorney making that type of arguments. ... I think that that is an example of how it potentially bends ... the rape shield law. REPRESENTATIVE CLAMAN proposed a hypothetical scenario in which a person met another individual in a bar wherein they drank and danced "suggestively" before going back to one of his/her homes and engaging in [sexual] relations. The next night the same person engaged in similar conduct with a different person who had witnessed the actions of the prior night, which was followed by an allegation of nonconsensual sex. He asked whether this was the kind of scenario that Mr. Stinson had referenced. MR. STINSON said Representative Claman's scenario would be more tenuous and would become fact specific about what actually happened after the bar. He explained that the scenario he [Mr. Stinson] had posed was alluding to a community reputation. He reiterated that these scenarios typically become fact specific and whether a trial judge would admit evidence of that would depend on those specific facts. 5:41:33 PM REPRESENTATIVE VANCE asked whether the law was more inclined to lean on the victim's reputation or whether he/she gave consent. MR. STINSON stated that the law was "absolutely designed" to look at whether or not the individual gave consent. He added that the purpose of the rape shield statute was to prohibit generalized evidence of somebody's "reputation" in the community. He explained that these scenarios were being examined on whether a pattern of specific types of affirmative consent would rise to a level of relevancy that a court could admit with a change in the law. MR. SKIDMORE agreed with Mr. Stinson that the rape shield law was designed to protect against someone's reputation. As a prosecutor, he maintained that just because a person agreed to sleep with one person did not mean that they agreed to sleep with someone else. He continued to explain that just because an individual engaged in an activity, such as dancing, with one person, it could not be construed as consent. He concluded that this law was trying to convey that affirmative consent must be sought. Further, he believed that if this law were to pass, there would be more litigation around the rape shield statute and many defense lawyers would attempt creative arguments to admit different types of evidence. Whether or not courts admit it, he said, would be fiercely litigated. CHAIR KREISS-TOMKINS asked if the legislature were to adopt a definition of affirmative consent for sexual relationships, how consent while given in an impaired state would be seen under the law. 5:45:45 PM MR. SKIDMORE explained that he had not seen any case law suggesting that intoxication created the inability to consent. Nonetheless, he said it was possible to drink to the point in which someone was not capable of consenting. He added that the law examined when a person became incapacitated from the level of intoxication. Further, he said he was unsure how the courts would ultimately interpret this issue in terms of the proposed definition of freely given consent. He maintained he could not imagine that simply because one person had one or two drinks of alcohol, that he/she was incapable of consenting. He conveyed that it was still incumbent upon the defendant to recklessly disregard a substantial and unjustifiable risk that there was not consent. He defined reckless as "the disregard of a substantial and unjustifiable risk that that circumstance exists." He further noted that recklessness in its definition was from the perspective of the sober person; therefore, if the defendant was intoxicated, they were still evaluated from the standpoint of a sober person. 5:48:23 PM CHAIR KREISS-TOMKINS sought to confirm that Mr. Skidmore had suggested that if an individual had been drinking and gave consent, the courts would adjudicate where the line was between incapacitation, which would constitute sexual assault, and freely given consent. He asked whether that was a fair summary. MR. SKIDMORE confirmed. He added that at some point, courts would provide guidance to the jury, which allowed them to decide on whether the facts as they were presented met the elements of the offense. CHAIR KREISS-TOMKINS asked Mr. Stinson how intoxication would relate to freely given affirmative consent. MR. STINSON agreed with Mr. Skidmore that if intoxication did not amount to incapacitation, the individual should be able to give consent; however, he noted that there could be fact- specific scenarios that cause pause. CHAIR KREISS-TOMKINS inquired about "sex with an incapacitated person" under current law. MR. STINSON believed that sexual assault [in the second degree] was a class A felony; therefore, engaging in sexual relations with an individual who was asleep or incapacitated was illegal and considered sexual assault. REPRESENTATIVE TARR pointed out that Section 5, paragraph (1), of SSHB 5 was intended to address Representative Claman's line of questioning regarding the rape shield law, as referencing an individual's "reputation" was often how survivors were attacked in the court room. 5:53:05 PM CHAIR KREISS-TOMKINS considered a scenario in which a married or unmarried couple had a healthy, consensual relationship. He asked how those cases would be treated when there was no word or action of affirmative consent, but it was a consensual sexual encounter between the two individuals. MR. SKIDMORE said the bill was written to consider words, conduct, and the totality of the circumstances. He believed that those factors in addition to the previous relationship, conduct, and understanding between the individuals would all play into whether there was a substantial and unjustifiable risk that there was not consent in that particular circumstance. He reiterated that all of that would be taken into consideration and should be able to protect against a misunderstanding. He opined that those considerations would also make some cases more difficult for prosecution to prove; nonetheless, he believed it was the only way that this could truly be approached from both a policy and a legal perspective. MR. STINSON conveyed some concern from the defense perspective that adding "specific to the conduct at issue" and the additional definition of "freely given" would compartmentalize each sexual contact or separate the course of sexual conduct. He said it seemed to suggest that a positively expressed word or action would be necessary for every step of the way. He concluded that the defense perspective was fearful of whether normative sexual conduct could be captured. He remarked: I understand that you would still have a reckless mental state. I guess the question I would pose is that if it has to be specific to the conduct at issue and if it has to be positively expressed by word or action then, I think, it's difficult at least on paper to say that you wouldn't be reckless going up and having sexual contact with somebody without a positively expressed word or action because it's specific to the conduct at issue. MR. STINSON said he would be happy to hear Mr. Skidmore's perspective as to whether it would be a reckless action by default to ever presume consent, even within the context of a relationship, arguably. MR. SKIDMORE understood the concept expressed by Mr. Stinson; however, he said he fundamentally disagreed on the basis that within a relationship with that level of consent, the individuals typically knew that certain things were okay. He conveyed that he had difficulty imagining a situation involving two people in a long-term relationship being submitted to law enforcement and prosecutors, or that a jury would find beyond a reasonable doubt that there wasn't affirmative consent by words or conduct due to the history that would be found within that relationship. Nonetheless, he said that issue had been a topic of conversation amongst prosecutors. 6:00:18 PM CHAIR KREISS-TOMKINS questioned how the history of a healthy, consensual relationship would be taken into account if that was not allowable with the rape shield law. MR. SKIDMORE explained that the rape shield law protected against bringing in instances of sex with a different person. He reiterated that the rape shield law was intended to protect against the assumption that just because an individual had been willing to engage in sexual conduct with one or more partners, he/she was willing to engage in sex with literally anybody. He argued that he could find a case that allowed previous sexual conduct between the same people to be deemed relevant in a case of sexual conduct. 6:02:14 PM REPRESENTATIVE CLAMAN returned to the topic of intoxication. He referenced AS 11.81.630, as well as the definition of "knowingly" in AS 11.81.900(a)(2) and "reckless" in AS 11.81.900(a)(3), all of which were focused on intoxication as a defense raised by the defendant. He sought to confirm that that the defendant was considered as if he/she was sober. He asked whether that was correct. MR. SKIDMORE replied in the affirmative. He explained that in considering intoxication as a defense, the focus was on how intoxication impacted the defendant's ability to form the required "mens rea," or mental element. Further, he was unsure how the question of whether intoxication or any consumption of alcohol would impact a victim's ability to provide consent would be answered. REPRESENTATIVE CLAMAN clarified that he was not asking about the extreme scenarios in which an individual may have been on the margin of being able to give consent because of the level of intoxication. He inquired about someone who was considered a "happy drunk" and whether that would be meaningful in whether that person would be able to give consent. MR. SKIDMORE answered yes, both the level of the victim's intoxication and whether he/she was consenting in that circumstance would be considered. He said he did not see anything that would suggest that simply because that person had been drinking that it took away his/her ability to consent. CHAIR KREISS-TOMKINS asked Mr. Stinson to comment from the defense bar perspective. 6:06:52 PM MR. STINSON agreed with Representative Claman that it was designed to prevent a defendant from arguing that a mental state was not met due to intoxication, which only happened with specific intent crimes. He explained that while he agreed with Mr. Skidmore that there was not a legal bar for the victim to consent in that scenario, the defendant would be looked at potentially as a sober person and whether he/she consciously disregarded the substantial and unjustifiable risk that there was not affirmative consent. He concluded that a "happy drunk" who was not incapacitated could give consent; further, a defendant would not be able to use intoxication as any kind of defense for misperceiving consent. MS. MCFARLAND opined that the proposed legislation would likely increase the amount of litigation in these cases, as it would present many questions about what it means to consent and how intoxication plays into that. 6:10:39 PM MS. MCFARLAND in response to a question from Representative Claman, stated that the state would consider the conduct at the time and would have to prove that there was not consent and that that the defendant recklessly disregarded that consent. REPRESENTATIVE TARR pointed out that the fiscal notes indicated that the proposed legislation would result in additional litigation. Further, she emphasized that women were not included in the process of drafting the current laws [regarding sexual assault] nor were they involved in the consideration of this policy. Additionally, as a disproportionate number of survivors were women, she said she wanted to make sure that their voices were not lost. She believed that women wanted affirmative consent because in the current form of the law, their right to consent had already been taken away. She referenced the 50-60 letters of support and opined that the proposed legislation should advance in the interest of public safety. 6:13:30 PM CHAIR KREISS-TOMKINS believed that members were united on the desired outcome; however, he wanted to ensure that he was confident in understanding the framework when considering legislation that involved changes to criminal law. He noted his appreciation for the passion Representative Tarr had given to this issue for many years. REPRESENTATIVE TARR further clarified that in the possibility the legislative record would be looked to in future litigation regarding the definition of affirmative consent, the intent was not to require a verbal agreement for each [compartmentalized] act during a sexual encounter. She added that words, actions, and the totality of the situation were intended to be included. 6:15:09 PM CHAIR KREISS-TOMKINS directed the following question to Mr. Stinson: If you have a couple in a healthy consensual relationship and ... one person is looking to initiate a sexual encounter and ... they put their hand on the other person in a sexual manner, which falls within the scope of some of the sexual misconduct laws in the hopes of initiating ... sex. How do you look at that in terms of [whether that would fall] within the definition of sexual misconduct and affirmative consent framework and where are the lines? MR. STINSON acknowledged that the legislative perspective was helpful to state on the record because the goal was not to criminalize normative sexual behavior. That being said, he expressed concern that within the affirmative consent framework, the ultimate goal was to ensure that one party wouldn't have to do something to express the fact that he/she was not consenting; instead, he/she would have to do something that would [affirmatively] express consent. He explained that in looking at a normative sexual relationship between two people, they may without initiate sexual contact without any prompting or consent specific to the conduct at issue. He said typically, within those types of relationships, a person would either respond positively or negatively. At that point, in a committed relationship, even sexual contact could rise to the level of criminality if an indication to stop was not listened to. He maintained that the defense was concerned that a plain reading of the proposed legislation could be interpreted counter to the legislature's desired outcome. He continued to convey that the definition of affirmative consent in the bill seemed to suggest that there would have to be some initiation on the part of the person receiving the sexual contact or sexual advance. He concluded that ultimately, deciding whether to further clarify that language would be a policy call on behalf of the legislature. Additionally, he surmised that the "conduct at issue" was included in the legislation to capture the scenario in which a person did not give expressed consent, nor did he/she resist or say "stop." He said it would also be up to lawmakers to decide what responsibility, if any, would be on another party to object to a course of sexual contact at a given time. 6:20:36 PM REPRESENTATIVE STORY expressed her appreciation for the discussion and shared her belief that something had to be done about the definition [of consent]. She expressed her hope that the committee would continue its work on the proposed legislation to ensure that everyone was comfortable with the final product. REPRESENTATIVE CLAMAN observed that sometimes hearings raise more questions than answers. He said he would prefer the opportunity to follow up and reflect on some of these questions. REPRESENTATIVE VANCE asked Representative Tarr why the language "competent person" and "may be reversed at any time for any reason" was not included in the bill. REPRESENTATIVE TARR stated that the original definition [of consent] included "by a competent person;" however, the language was removed after conversing with DOL about the statutory redundancy of mental state, which was addressed in sexual assault in the second degree, she relayed. She explained that "reversible" was included in the definition to maintain consistency with the current education regarding consent. She said the goal was to utilize the right language to allow for effective prosecution of sexual assault crimes; therefore, if "specific to the conduct at issue" would be legally problematic, it shouldn't be included. 6:27:04 PM CHAIR KREISS-TOMKINS announced that HB 5 was held over.