Public defenders oppose Nevada sexual assault bill

Assemblywoman Connie Munk, D-Las Vegas, says AB227 is designed to fix a problem she says lets some sex offenders off because the prosecution has to prove the victim didn’t consent.

But public defenders and the ACLU argued the bill impermissibly shifts the burden of proof from the prosecution to the defense.

Existing law rules a perpetrator guilty of sexual assault for forcing himself on a victim against their will or under conditions where the perpetrator knows or should know the victim is incapable of resisting or understanding the nature of their conduct.

Sandy DiGiacomo of the Clark County DA’s office said AB227 is aimed at situations in which the victim in unconscious, intoxicated or otherwise not capable of giving consent.

Under existing law, she said, “we have to show she didn’t consent and if they don’t remember, that’s a huge burden.”

She said the perpetrator can simply get on the stand at trial and say the victim did give consent.

She said AB227 would change that from, “actual consent, which is impossible in most situations,” to show the victim was so impaired they couldn’t legally consent.

She pointed to a number of cases where someone was charged with raping an unconscious victim or a victim obviously so intoxicated they aren’t in control of themselves.

“If we can prove they were intoxicated to an extent to where she couldn’t give consent, we get the conviction,” she said.

John Jones of the Clark County DA’s office said the bill changes requiring they prove actual consent, “to did she have the capacity to consent.”

He said at present, it’s an, “uphill battle because we have a victim who can’t remember anything.”

But Nadia Hojjat of the Clark County Public Defender’s Office said that shifts the burden of proof to the defense.

She said those examples DiGiacomo cited are already covered by existing law, pointing out having sex with an unconscious person falls under current stature and the prosecution isn’t required to prove the perpetrator knew or should have known it was wrong. She said the same is true of an individual obviously so drunk or incapacitated they’re incapable of consent.

“Now we’re going entirely to the state of mind of the victim at the time,” she said. “We’ve all encountered individuals walking, talking, who won’t remember anything tomorrow. We’re talking about an adult who appears to be a consenting adult. They’re asking an amendment that we now say this adult appears to give consent but that consent doesn’t count. That consent is invalidated.”

Kendra Birtchy of the Washoe Public Defender’s Office made similar comments asking how prosecutors can determine whether the victim is incapacitated.

“Is it one drink, two drinks, three drinks?” she asked. “Is it the first person who regrets it in the morning — the other person is guilty of sexual assault?”

They were joined by Holly Welborn of the American Civil Liberties Union who also argued the bill impermissibly shifts the burden of proof to the defendant. All three made it clear they object to the lack of clear standards for proving the victim was unable to consent.

The committee took no action on AB227.