Today, January 17, 2019, marks a day I’ve long awaited! The very first meaningful rape by fraud/deception/impersonation bill was introduced to Indiana’s House of Representatives this morning. HB 1584 was identified in a condensed reading by House Speaker Brian C. Bosna. It was authored by Rep. Donna Schaibley and supported by former Indiana State Representative, Sally Siegrist.
HB 1584 provides that:
“A person who knowingly or intentionally has sex with another person, or knowingly or intentionally causes another person to perform or submit to other sexual conduct when the person knows or reasonably should have known that the other person believed that the person is the other person’s spouse or significant other, commits rape.”
Schaibley’s bill will make rape by impersonation a Level 3 felony which is punishable by 3 to 16 years in jail and a fine limited to $10,000.
“Significant other” means a person with whom someone has a dating relationship or an ongoing personal relationship. The term “ongoing personal relationship” does not include a family relationship.
This bill resulted from the acquittal of Donald “Grant” Ward, who admitted to pretending to be his victim’s boyfriend when engaging her in sex, but was acquitted of rape under the State of Indiana’s statutes.
An additional bill was submitted to the Indiana House to define “consent.”
Normally, I’d be jumping up and down with praise if a legislator attempted to define consent in their laws, but unfortunately, this bill contains a flawed definition.
HB 1489, authored by Rep. Sue Errington, is similar to other fairly recent laws that confuse consent in other states. It defines consent as “free, voluntary, knowing and mutual agreement. ”
Sorry, I have no idea what “free agreement” is. Do you? And, no, consent is far from “mutual.” It is personal and individual, even when the action one “consents to” calls for simultaneous consent by both parties.
“Freely given” or “freely giving” is the correct term, depending on whether you’re defining consent as a noun or a verb. “Freely given” agreement is agreement that’s not forced, coerced or deceived. While “free agreement” doesn’t cost much (my attempt at humor), it does not explain the principle that turns agreement into consent. Because laws are literally translated by lawyers who represent the accused and by trial judges, juries, and prosecutors, the word “free” simply doesn’t work.
There’s more. Here’s the wording of HB1489-
Consent is free, voluntary, knowing and mutual agreement to engage in a specific sexual act or contact, including positive and affirmative cooperation in words or acts, or attitude pursuant to the exercise of free will.
“Pursuant to” means “in accordance with,” further complicating the confusion this bill creates. The wording “positive and affirmative cooperation in words or acts or attitude, pursuant to the exercise of free will, ” contradicts the concept of consent in certain circumstances. This bill fails to make it abundantly clear that a person who is tricked or coerced is not consenting even when their actions and deeds appear to be “agreeing.” Placing a behavior that does not warrant consent into a sentence with “pursuant to” sets up an unnecessary, and avoidable confusion. This passage can be easily misunderstood by jurists and the police – so much so that it gives free reign to offenders who coerce and trick people.
While Errington stated to the Journal & Courier in West Lafayette that her bill is patented after NY’s law, I can attest to the fact that NY’s law is woefully deficient. I have accompanied victims, and know of others, who attempted to report rape by fraud to NYC precincts. The NYPD repeatedly turned them away and would not even take a report on the complaint.
HB 1489 makes a simple concept complicated. A provision that’s consistent with the meaning of consent would say:
Consent is freely given, knowledgeable and informed agreement. The affirmative cooperation, words, actions, and attitude of the victim cannot be considered as “consent” when the accused induces sexual conduct or sexual contact by force, duress or deception.
The State of Missouri makes a similar statement in their Rape 2 statute: Section 556.0061(14) Assent does not constitute consent if: (c) It is induced by force, duress or deception.
During trickery or coercion the victim could “assent” or “acquiesce” but could not possibly “consent.” My TEDx Talk and booklet, Your Consent – The Key to Conquering Sexual Assault, comprehensively explain this issue.
No matter whether you think you’re consenting or not, a sexual predator knows if they’ve used force, duress or deception to induce your sexual conduct. Even though you may look like, speak like, act like, and think like you’re consenting……. you’re not. A law that fails to explain this concept in simple, direct terms is not accurately or appropriately defining consent!
Consent applies not only to sex but to all things.
Consent does not change even when it’s applied to a different activity…..
- Consent is consent when dealing with your property.
- Consent is consent when dealing with surgery or medical experimentation.
- Consent is consent when you tell your child they can have a cookie when they finish their homework. Your assent is not consent when they trick you into thinking they did.
Consent is consent when dealing with anything and everything!
The Key to Conquering Sexual Assault
“Your Consent” will shortly be available on Amazon. To be notified of its release, kindly complete the request form located on this link.
If you are a legislator or educator, you can obtain a free, pre-release PDF today! Simply state your position in the PURCHASE CODE in the request form and request forwarding to your official email address.
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