The American Bar Association (ABA) recently attempted to provide recommended wording for “consent” in order to get the states and territories across the US on the same page. You’d think I’d be jumping for joy, but unfortunately, I’m not. And the reason is not because their attempt failed, but because their attempt sooooo woefully missed the mark!
Here’s the definition that was indefinitely postponed (thank the Good Lord!) this past August:
“RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the consent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, provided that nothing herein changes the Constitutionally-guaranteed presumption of innocence, or the burden of proof, which at all times remains on the prosecution to prove every element of an offense, including without limitation lack of consent, beyond a reasonable doubt.”
Where do I start???
- Defining a word by using the word itself does not define the word. “Consent is ‘the consent of a person…. ‘” Are you kidding??? How does that possibly define the word?
- Consent is not rocket science. It’s no different in sexual conduct than it is in any other type of conduct. Our penal codes must stop pretending it’s different.
- We know what consent is when someone steals something. It’s freely given, knowledgeable and informed agreement. Look at Model Penal Code, Nuremberg Code, Global Data Protection Regulation (GDPR), and my TEDx Talk. They all basically say the same thing…..CONSENT IS FREELY GIVEN, KNOWLEDGEABLE AND INFORMED AGREEMENT!
- Laws are made of provisions and definitions. They are not the same. To define a word, you simply must define the word,……say what it is. Once you do so, you can create guidelines (provisions) using the words that are defined. Consent is both a noun and a verb. We must properly define the noun form in order to write provisions using the verb form. The ABA’s attempt confuses provisions and, what they claim to be a definition, without actually defining the noun, “consent.” Yes, there are behaviors that provisions can prohibit, but first and foremost, to establish what consent means, you must simply and accurately define the noun form of the word!
Consent was, is and always will be “freely given, knowledgeable and informed agreement- #FGKIA!” It’s really that simple!
Piling on the confusion…….
Each state has the right to make its own penal code, and they do. Here is some wording that often gets stuck into their attempts at definitions because the clear, simple definition for consent does not exist in any state’s penal code…..
Should a definition for consent say consent is retractable? Actually, if it were true, being able to retract consent would be a provision, not a definition. A definition says what something is. A provision expresses conduct with the words that are defined. If “retracting” would be allowable, it would be a provision. People say it’s retractable only because they don’t understand the actual definition for the noun, consent. When you discover you did not consent, (you were forced, coerced or deceived) you are not retracting your consent. Consent never existed in the first place. The form of agreement you expressed under force, duress or deception is assent or acquiescence, but not consent. And because the offender knew they used force, duress or deception to secure your agreement, they knew you were not consenting. Very simply, not all agreement is consent.
If you wish to stop or remove your consent you can, as long as the conduct you’re consenting to is continuing. When you remove or stop your consent, the conduct must stop.
“Assent is not consent when induced by force, duress or deception.” Model Penal Code, Missouri’s law and Texas’ law state this clearly. Problem is, Missouri fails to uphold their law and Texas only applies their law to theft, as if consent changes its stripes when applied to sexual conduct.
Here’s an example of when, after the fact, you could claim you did not consent:
You decide to give your friend Bill your bike. You believe you are consenting. You got a new one and no longer need the old one. Three people want your old bike but you give it to Bill because he assures you he’s giving it to his neighbor who can’t afford to buy Christmas presents for his kids. His twelve year old son has been begging for a bike.
Your new bike doesn’t work out so well, so you decide you want your old bike back. Sorry…. You cannot retract your past consent.
However, if you see Bill riding down the street on your old bike a month after Christmas. and he never gave it to his neighbor – in fact, his neighbor doesn’t even have kids. – you did not CONSENT to give your bike to Bill. You ASSENTED. You agreed on the face of what he had told you. But you did not CONSENT because you were not knowledgeable and informed. And yes, he conned you, and he knew he was doing so at the time. Conning you is a pre-meditated, planned act. It’s not accidental. He is not entitled to keep your bike. There is no difference in how this applies toward your property or your sexual autonomy.
I’ve seen attempts to define consent stating consent is mutual. It absolutely is not!! Consent is INDIVIDUAL! In sex, consent must be achieved individually by each person, simultaneously. So you can say consent must be simultaneously achieved, to engage in sex. but you cannot define the word “consent” as “mutual.”
- “Words or actions”-
Victims who are forced, coerced or deceived could express words or take actions that appear to be agreement. Doing so is absolutely not consent! And the offender KNOWS they used force, coercion or deception to induce that sexual behavior. So “yes” does not mean “yes” when the word “yes” or “actions” that signify agreement are induced by force, duress or deception. And someone who is younger than the age of reason or unable to reason properly due to a mental deficiency, are not capable of consenting, even when they assent.
- Affirmed Consent-
Simply put, “affirmed” means “stated.” During sex, when a person is not happy with the other person’s behavior, they should say so or otherwise make it known they want that behavior to stop. The concept that you have to ask for permission for every little movement is absurd. But both parties must respect each other’s boundaries and stop conduct that the other person objects to right away. Behaving a way the other person tells you they don’t want is against their consent. Failure to stop is an assault on their body.
- Affirmative Consent-
All CONSENT is affirmative!! There is no such thing as negative consent! That would be an oxymoron. Being affirmative is inherent in the very nature of consent because it is AGREEMENT. Saying “affirmative consent” is like saying a “circular circle.” A circle’s shape is always circular.
Lots of schools and universities have tried to establish the concept of “Affirmative Consent” in their Codes of Conduct. And the ABA tried to create synergy between the language promoted at schools and the language they suggest. Here’s why that does not work…..
No matter how many times you say “yes,” if the offender induced sex by threatening you, forcing you or deceiving you, YOU DID NOT CONSENT! Because consent is Freely Given, Knowledgeable and Informed Agreement. You did not consent if the offender stole property from you this way, and you did not consent if they stole their way into sexual conduct with you either. You agreed. But you did not CONSENT!
- Informed Consent-
Just like affirmative consent, there is no such thing as uniformed consent. Assent is agreement “on the face of it.” Larry Nassar’s victims agreed on the face of it, but did not “consent.” They “assented.” Consent, not assent, is required in sexual conduct.
Model Penal Code’s Consent Provision
Model Penal Code (MPC) gets their consent provision almost right. But the nuance is slightly skewed. MPC states that consent is INEFFECTIVE when induced by force, duress or deception. In reality, it should say “Assent is not consent when induced by force, duress or deception,” – a finite, but important difference that would help people better understand the true nature of consent. Missouri got this right even though their justice system fails to act on their consent provisions in accordance with their laws.
The blame game
We have no problem blaming the offender for taking your property without your consent. We need to stop pretending that it’s any different to blame them when they induce sex without your consent. They know when they force you, coerce you or trick you into parting with your assets. And they know when they force you, coerce you or trick you into sexual conduct.
The big dilemma…. What if both people are drunk?
Not every murderer will be tried in a court of law. Not every thief will be either. We don’t fail to recognize murder or stealing because some cases are tough to litigate.
Not every sexual assault will end up in court. The Prosecutor must be able to prove that a reasonable person would have known you were drunk, and there must be significant proof to support that they engaged you in sex that you would otherwise not have wanted to perform if you had your wits about you.
Some states require that the victim, in drug or alcohol cases, would have been rendered unable to consent by the actions of the offender. This concept is currently under fire because it is the reasoning condition of the victim, not how they became unable to reason, that makes sexual assault a crime. If a reasonable person would know that their sexual target is incapacitated, it should not matter how they got that way. They simply cannot “consent” without the ability to make reasoned decisions.
If you’re both drunk, it’s a very tough case. If you were both drunk and got behind the wheel of your cars and collided, who would be to blame? Do we fail to recognize DUI because some cases are tough? Of course not!
The person who crossed the dividing line in the road would be blamed for the accident. The person who instigated sex would be the offender. There are cases that are simply difficult to determine. Certainly, if the other person is out cold, having a hard time speaking, walking, etc, the visible signs are there.
Will every person who deceives a victim for sex go to jail?
If you hop into bed with them when they tell you they’re single but they’re really married for 15 years with 3 kids and a dog named Fido, yes, they are sexually assaulting you, but…. did YOU conduct a REASONABLE amount of due diligence to figure it out? Every jury embodies the decisions that are made by a “reasonable person” standard.
The Missouri case against Mario Antoine is a good example of a sexual assault by deception that went unpunished. Donald Ward’s case in Indiana is yet another. They both exemplify the need for a correct consent definition in every state.
There is no difference in the “reasonable person” standards used in theft by fraud or sexual assault by fraud. The only difference is that when someone steals your property, they take you assets no matter how large or small. When they lie to get laid, they defile you which is never a small matter no matter how small their deception was. If they murder you with a tiny arsenic pill, or a bomb, you’re dead and they committed a crime. Using a lie to satisfy your lust-filled convenience creates the same sense of defilement as using an elaborate hoax. But whether the victim had a reasonable basis for believing your lie, and whether they have significant proof that you defrauded them will determine whether or not you can be tried in a court of law. This same litmus test is applied in all cases where fraud is the weapon used in committing a crime.
Aggravated offenses, crimes involving weapons or violence are far more egregious under the law and the penalties are harsher than non-violent crimes. But even when someone cons you out of your assets, a crime involving no bodily contact, they’re a criminal. And when they con you into sexual conduct, the most “personal” of bodily contacts, they are also a criminal.
If the offender gives you credible evidence of being divorced such as showing you a fake divorce decree, signed by a judge with a raised seal, they’ve crossed the line into your having a reasonable basis for believing their deception.
And what if they tell you they love you? Sorry, no matter how much they love you today, they may not love you tomorrow. Changing their mind is not deception. What matters is whether they had both the capacity to love you and the feelings of love they claimed when they told you so.
But if they tell you they love you and want to marry you, while they’re telling the same thing simultaneously to 4 other people, taking each of you shopping for engagement rings and marital homes,…… their lack of intent would be blatantly apparent once you learned of their deception. While you assented to their sexual conduct,you did not consent. You were neither knowledgeable nor informed.
No one who is defrauded “consents.” And while YOU don’t know you’re not “consenting” at the time, THEY know you are not consenting at the time. That is exactly why Bernie Madoff is sitting in jail after defrauding people in a Ponzi scheme. Inducing sex through fraud is is no more “consent” than stealing from you by using fraud.
Consent is consent is consent
Consent doesn’t change based on its application or for anyone’s convenience. It’s always the same… Freely Given, Knowledgeable and Informed Agreement. The basic, simple definition for consent is easy to understand. And anyone who understands it can be guided by it and held accountable. We desperately need to properly define consent in its simplest and most straight-forward terms in our laws.
#MeToo and #TimesUp opened society’s eyes to rape mentality. They’re a movement in need of a solution. Defining “consent ” properly in our laws is the critical key to conquering sexual assault! The ABA needs to get back on track…. this time with the correct definition!
YOU CAN HELP!
Here’s a letter to send to your legislators, to every attorney you know to forward to the American Bar Association, and to the ABA directly…..
#MeToo and #TimesUp have raised awareness on sexual assault. We desperately need to put an end to rape mentality. Millions of victims suffer this defiling crime each year with no hope of justice. We can no longer tolerate the misuse of a simple word, consent, that is critical in all sexual conduct.
I understand the American Bar Association is working on a suggestion for the definition of consent to recommend to each and every state throughout the US for their penal code. I urge you to support enacting the actual, simple definition for the term consent, “Freely Given, Knowledgeable and Informed Agreement, #FGKIA,” into law. This wording is easily understood by society, and is consistent with Model Penal Code, Nuremberg Code and Global Data Protection Regulation used throughout Europe and around the world.
Please help to define consent properly in our laws! Enacting the proper definition for consent as well as having the American Bar Association get behind the correct definition for consent are critical steps in ending sexual assault and rape mentality across the US and beyond!
Thank you for your help!
In addition to your legislators and attorneys, please forward this letter to: Mark Schickman, the Chairman for the American Bar Association’s Committee on Domestic & Sexual Violence. Mr. Schickman’s email address is:
Please cc me on your correspondences at:
Get more information on consent
by watching this TEDx Talk and securing your copy of YourConsent – The Key to Conquering Sexual Assault.