After years of failed attempts to change Indiana law, the Senate unanimously voted to pass language aimed at closing a rape loophole about the definition of consent.
Under House Bill 1079, a person who has sexual intercourse with someone who attempts to “physically, verbally, or by other visible conduct refuse the person’s acts” commits rape.
Indiana law currently states that intercourse is only considered rape if it’s done by force or if it occurs with someone who is mentally incapacitated or unaware that it’s happening. That means it’s not always clear to jurors with no law experience if someone pulling up their clothes or saying “stop” falls under any of those categories.
“Typically there has to be some kind of proof of damage to the individual,” bill author Rep. Sharon Negele, R-Attica, told IndyStar at the start of the legislative session. “And we know that rape doesn’t always occur like that.”
Indiana law makes prosecuting rape difficult
Past legal cases have shown perpetrators can be charged for rape when there is no obvious physical force, but some judges do not enable prosecutors to include case law in the instruction to juries.
Advocates think changing the law will help encourage more survivors of sexual assault to step forward, amid underreporting of cases.
According to the Indiana Coalition to End Sexual Assault and Human Trafficking, 20% of Hoosier women have been sexually assaulted, but 85% of sexual assault cases go unreported. Meanwhile, Indiana ranks fourth highest in the nation for the number of reported rapes among high school girls.
“We believe that clarity in the statute is important, and we believe that this particular legislation moves us toward clarity,” Beth White, president of the coalition and former Marion County clerk said during committee testimony on the bill.
Stephanie Stewart, a rape survivor, is among those who say they could have been benefited from stronger language in Indiana law surrounding rape. In her case, prosecutors did not file charges against her perpetrator. She said she was told by a deputy prosecutor that the lack of a broader legal definition of “consent” would have made it difficult for them to argue her case in court.
While the bill as amended doesn’t use the term “consent,” it does explain what isn’t considered consent.
“This is the proper thing to do to get us in a place where no means no,” bill sponsor Sen. Mike Bohacek, R-Michiana Shores, said ahead of Tuesday’s vote.
Only one group testified against the proposal during the Senate Corrections and Criminal Law committee hearing last month: the Indiana Public Defender Council, which argued Indiana’s current rape laws are strong enough.
“We think this language might confuse jurors even more,” Michael Moore, assistant executive director of the Indiana Public Defender Council, said during the hearing.
Various representatives from both parties have championed bills to clarify Indiana’s definition of rape since at least 2015. In 2021, a bill clarifying what consent was passed the House but was never called for a vote in the Senate Corrections and Criminal Law committee. So the bills passage out of the Senate is a major win for advocates.
The House already approved House Bill 1079 in its original form, but because there were amendments, the chamber will have to vote on whether to concur with the changes before it can be sent to Gov. Eric Holcomb for consideration.
Call IndyStar reporter Kaitlin Lange at 317-432-9270. Follow her on Twitter: @kaitlin_lange.