Bill to plug a loophole in Guam's law against sex crimes, redefines 'mental incapacitation'
By Pacific Island Times News Staff
In March last year, the Minnesota Supreme Court ruled that a person who is sexually assaulted while intoxicated does not fit the designation of "mentally incapacitated" if he or she consumed alcohol willingly.
The court, pointing out that the victim got drunk on her own, reversed the conviction of a man who was found guilty of third-degree sex charges for sexually assaulting an inebriated woman.
The controversial ruling had prompted the Minnesota legislature to amend the state's rape statute by redefining “mental incapacitation."
Taking a cue from the Minnesota case, Guam senators introduced a similar bill, recognizing that alcohol use "is never an invitation for unwanted sexual activity."
Sen. Mary Torres introduced Bill 243-36, which would close a loophole in Guam law by amending the definition of “mental incapacitation” in criminal sexual conduct cases.
Under current law, victims are not considered “mentally incapacitated” if they voluntarily consume an intoxicating substance prior to being assaulted or raped.
Bill 243-36 would change this by expanding the definition to include any person under the influence of a substance that renders them incapable of consenting.
The bill also establishes “consent” for the first time in the Guam Code, updates the definition of “physically helpless,” and revises the outdated term of “mentally defective” to “mentally impaired.”
“Any victim who cannot give consent is worthy of protection under the law,” Torres said. “By recognizing voluntary intoxication, Bill 243 sends a message to perpetrators who take advantage of the vulnerability and provides a clearer path to justice for survivors of sexual assault.”
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Bill 243-36 was among the three new pieces of legislation seeking to provide wider protection for survivors of sex assault, stalking and violence.
Torres also introduced Bill 242-36, which would facilitate a system that would allow victims of domestic violence to delink their phone plans from their abusers.
Generally, individuals cannot separate their phone numbers or be released from a shared plan without the account owner’s permission, a task that can be difficult or dangerous when the perpetrator of family violence is the primary account holder.
Under the bill, victims can opt out of a shared plan without fees or penalty. The opt-out request must be submitted in writing along with a valid police report, an order of protection, or a signed affidavit from a licensed medical or mental healthcare provider.
“Cutting off a victims’ ability to communicate is just one of the ways abusers exercise control,” Torres said. “While I’m thankful for any company that is working to help victims, Bill 242 makes clear that no contract is sacred enough to continue the abuse. This measure would ensure survivors can cut ties without penalty—helping them start over and feel safe again.”
The third proposal, Bill 244-36 adopts a standard bill of rights for sexual assault victims in Guam, including the right to advocacy, the right to informative rape kit procedures and notification, and the retention of all rights regardless of whether the assault is reported to law enforcement.
The three bills were co-sponsored by Speaker Therese M. Terlaje, Vice Speaker Tina R. Muña Barnes, Senators Amanda L. Shelton, James C. Moylan, Jose “Pedo” Terlaje, V. Anthony Ada, Frank F. Blas Jr., Clynton E. Ridgell, Joe S. San Agustin, Christopher M. Duenas, and Sabina F. Perez.
“Together, Bills 242, 243, and 244 ensure that victims and their families are treated with the dignity, compassion, and respect they deserve,” Torres said. “I thank my colleagues for standing alongside me to support these measures and strengthen protections for our survivors.”
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