The slogan “no means no” may soon change to “yes means yes” in Nebraska. Since March of 2019, the state’s lawmakers have been debating Legislative Bill 173. Under this bill, a person would have to specifically give their consent by saying yes. Silence and not resisting would not qualify as consent, and direct consent would be required every time a couple wanted to engage in sexual consent. The bill, says lawmakers, is meant to empower victims of sexual assault. However, while the bill certainly has good intentions, some wonder if it has gone too far.
“Requiring specific consent under all conditions leaves people open to criminal charges when they are not guilty of a crime,” says John S. Berry, Jr. of Berry Law. “For example, if two people were intoxicated and neither specifically said, ‘yes’ to the other, either could face criminal charges in the future. This bill is just too broad.”
These are the same concerns lawmakers opposed to the bill raised when debating the bill in the State Senate. Critics of the proposed law say that there is no need to change the laws as they are because they are quite clear and do not contain the loopholes supporters of the bill think. The bill also does not specifically state what qualifies as an ‘overt action.’
In fact, the bill may have more flaws than the current law.
Under the new law, two consenting adults could give non-specific consent. If the relationship were to deteriorate in the future and end badly, one could easily accuse the other of sexual assault, even if they are innocent of such charges.
Additionally, the new law is not going to help victims of sexual assault.
To really help these victims, legislators may want to focus on other laws, such as extending the statute of limitations. Currently, the statute of limitations on misdemeanor sexual assault charges is 18 months. Felony offenses have a statute of limitations of five years. Extending this statute would provide victims with more time to deal with their emotions and come forward, without jeopardizing the lives of innocent people.
While everyone wants victims of sexual assault to be able to seek justice from their attacker, this proposed legislation is not the way to do it.