LINCOLN– The definition of consent as it relates to sexual assault could be redefined under a bill heard by the Legislature’s Judiciary Committee on Feb. 9.
LB 988, introduced by Sen. Patty Pansing Brooks of Lincoln, would provide an affirmative consent standard for sexual assault, requiring a knowing and voluntary agreement, freely given, to engage in sexual contact or sexual penetration. This bill creates a “yes means yes” standard so that victims of sexual assault are better protected under the law.
Pansing Brooks said she felt it was particularly appropriate to bring the bill in light of the “Me Too” and “Times Up” hashtags that have been circulating on social media this year.
She said said the bill is about empowering survivors of sexual assault who seek justice from their attacker.
It bill would reframe the way Nebraska’s legal system looks at cases in which individuals did not give voluntary, conscious and mutual consent in sexual encounters.
“I’m honored to bring this legislation to the committee as it gives a voice to those men and women who, for far too long, have felt voiceless,” Pansing Brooks said.
The wording of LB 988 establishes that consent is present when it is voluntarily and freely given, either verbally or through overt actions. When there is no indication through words or conduct that someone is willing to engage in an intimate encounter with another, consent would be deemed as not having been given.
It also states that consent must be continuous, regardless of previous encounters or relationships. The bill also confirms that consent is not given based off of an individual’s clothing. Further, when someone is incapacitated, either due to drugs or alcohol, they are incapable of giving their consent to sexual activity.
“While the current standard of consent is, ‘no means no’,” Pansing Brooks said. “LB 988’s provisions are not an unrealistic expectation.”
In October 2017, Montana enacted a law similar to the proposed bill as previous statutes there did not reflect the current times, she said.
Nine individuals were proponents of the bill, many of them survivors who noted that while they didn’t say yes to a sexual encounter, they didn’t say no, either. LB 988 would bring justice to their cases, they said.
Jessica McClure, a sexual assault survivor in Lincoln, said she believed that changing the wording would send a clear message to attackers and that victims deserved that.
Four individuals opposed the bill, almost all citing confusing language as their reasoning.
“It’s difficult for us as prosecutors to understand the language within this bill, let alone communicate that to jurors who need to understand what elements we have to prove,” said Molly Keane, representing the Nebraska County Attorneys Association.
The committee took no immediate action on the bill.