“Without consent” laws do not define “consent”

In the US, states often attempt to define the word “consent” by what it’s not instead of what it is. And our system of justice ironically changes “consent” depending on what you’re consenting to.

Regardless what antiquated, inaccurate penal code tells you, whether consent is applied to cyber security, theft, medical treatment, research experiments, sexual assault, etc., consent is always the same….. #FGKIA, Freely Given, Knowledgeable and Informed Agreement.

It’s high time our legislators get it right!

  • Cyber security has accurately defined consent through General Data Protection Regulation (GDPR): Freely Given, Informed 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 rock this boat! 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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You can help!

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Read Your Consent – The Key to Conquering Sexual Assault

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