Laws that define “Without consent” do not define “consent”

In the US, many states attempt to define the word “consent” by what it’s not instead of what it is. And our system of justice nonsensically changes “consent” with each application. Whether consent is applied to cyber security, theft, medical research, sexual assault, etc., consent is always the same thing….. #FGKIA, Freely Given, Knowledgeable and Informed Agreement.

  • Cyber security has accurately defined consent through General Data Protection Regulation (GDPR): Freely Given, Knowledgeable and Retractable Agreement. (Condensed version)
  • Medical Research has accurately defined consent through Nuremberg Code: Freely Given, (not induced by force, duress or deception), Agreement. (Condensed version)
  • But our lawmakers have failed to accurately define consent through Penal Code. Why not? Because many of them really don’t want to! A huge swath of their constituents feel entitled to sexually assaulting you, and too many of those legislators value their jobs more than they value your safety!

Why is defining something by what it’s not a bizarre approach?

The list of what it’s not is infinity minus what it is. So making claims about what it’s not is a backwards way to look at a definition.

Don’t mean to be insulting, just trying to make a point…. Here are some of the things consent is not:

  • It’s not a Jello pudding pop.
  • It’s not a sand castle.
  • It’s not a neutral color of paint for your living room.

On what planet is defining “what it’s not” the same as defining “what it is?”  And even when you add the caveat that what it’s not is  “not limited to the following,” you can bet that law enforcement, prosecutors, judges and juries, will apply the oldest legal doctrine, Nulla peona sine lege – “What is not expressly prohibited by law is permissible,” on a case by case basis.  

At least Montana gets it right by doing it backwards

Montana’s statute #45-5-501(1)(a), applies all the Model Penal Code “Consent Provision” elements of “force, duress (coercion,) and deception, which is consistent with the definition of consent; #FGKIA, Freely Given, Knowledgeable and Informed Agreement.

If your legislators bury their heads in the sand to pretend they don’t see that consent is freely given knowledgeable and informed agreement, point them to my TEDx Talk, GDPR, Nuremberg Code, Model Penal Code and Montana’s Law.

But even Montana can benefit by adding the clarification that consent is “freely given, knowledgeable and informed agreement” to its statutes to make the meaning of consent crystal clear.

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Read Your Consent – The Key to Conquering Sexual Assault

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