HB 1079 and Consent in Indiana

By: Sohyoung Choo Ward

Women4Change Public Policy Committee Member

The National Sexual Violence Resource Center estimates that roughly 1 in 6 women and 1 in 33 men in the U.S. have experienced an attempted or completed rape in their lifetime and 734,630 Americans have experienced threatened, attempted or completed rape in 2018.

House Bill 1079 (“HB 1079”) adds much-needed clarity and justice to Indiana law for cases involving non-consensual sex. It provides a statutory definition of “consent” and closes a gaping loophole regarding rape by fraud.

The issue of consent is relevant, if not critical, in every single rape case. In recognition of such significance, nineteen states and Washington D.C. have codified the definition of “consent” in their laws. Indiana, unfortunately, is not one of them. As things stand currently, there are many obstacles victims of rape and sexual assault face. According to data from the U.S. Department of Justice compiled by the National Community Pharmacists Association, 61% of rapes and sexual assaults are not reported to the police. If a case is reported to the police, there is a 50.8% chance of an arrest. Once an arrest is made, there is an 80% chance of prosecution. If it finally gets to a trial, there is a 58% chance of a felony conviction. If there is a felony conviction, there is a 69% chance the convict will spend time in jail. Therefore, in the 39% of attacks that are reported to police, there is a 16.3% chance the rapist will end up in prison. Factoring in unreported rapes, about 6% of rapists—1 out of 16— will ever spend a day in jail. That means, statistically, 15 out of 16 rapists and sexual perpetrators walk free. The absence of an express statutory definition of consent compounds such terrifying odds of achieving justice by making it more difficult to prosecute and convict the perpetrators and leaving the matter of consent to case law and jury interpretation.

HB 1079 also closes a glaring loophole in Indiana law. Because consent is not expressly and sufficiently defined in our state penal code, sex without consent is not a crime in Indiana, unless there is force, the threat of force, or incapacitation. As such, sex induced through fraud, deception or impersonation is extremely difficult to prosecute under Indiana law, because, in many such rape-by-fraud cases, there may not have been force or threat of force due to the perpetrator’s deception of the victim that the perpetrator is someone else—the victim’s consensual partner, for example.

There have been numerous efforts by several Indiana lawmakers to clarify the issues of consent and rape. Indeed, HB 1079 is a replica of House Bill 1179 from last year, which passed through the House with a 90-to-4 vote but did not advance in the Senate Courts Committee. On January 12, 2022, HB 1079 passed out of the House Courts Committee with a 9-to-1 vote. It will get heard on the House floor, and, if passed, it will advance to the Senate Courts Committee again. HB 1079 is our second attempt to move Indiana one step closer to justice for victims of rape and sexual assault. 

Make your voice heard today, and contact your representatives to urge them to vote in favor of HB 1079. Attend our Listen, Connect, Participate: Consent, this Wednesday to learn more!