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 so 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, General 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 up 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 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 are some wordings that often gets stuck into 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? Revocable would actually be a better word for a provision because retractable sounds like you can take back your consent in hindsight. When you revoke your consent, the sexual conduct must stop. Being revocable is a provision, not a definition for consent.
A definition says what something is. A provision expresses conduct with the words that have been defined. Since consent is freely given, knowledgeable and informed agreement, the minute you no longer agree, you are no longer consenting.
While you are engaging in sex, you should be able to revoke your consent at any time. But if you actually gave consent at the time, you cannot, later on, go back and claim you are retracting it. However, if, later on, you discover you did not consent, (because you were forced, coerced or deceived into sexual conduct) you are not retracting your consent. Your consent never existed in the first place. While you may have assented or acquiesced, you did not consent, and your awareness that you did not consent can occur in hindsight.
Victims do not always know, immediately, that they were robbed. They also do not know immediately that they were defrauded. But when they figure it out, we have no doubt that the agreement they gave was not consent.
Because the offender knew they used force, duress or deception to secure your agreement, they knew you were not consenting at the time, even if you did not know.
Model Penal Code states, “assent is not consent when induced by force, duress or deception.” Both Missouri and Texas laws state this clearly. Problem is, Missouri fails to uphold their consent law and Texas only applies their consent 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 bike 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.
You don’t like your new bike so you decide you want your old one back. Sorry…. You can’t retract your past consent.
If; however, you see Bill riding down the street on your old bike a month after Christmas – he never gave the bike 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’d told you. But you did not CONSENT because you were not knowledgeable and informed. He conned you, and he knew he was doing so at the time. Conning you is a pre-meditated, deliberate act. It’s not accidental. He is not entitled to keep your bike. There is no difference between conning someone out of their property, and conning someone out of sex..
Legal commentators often use the word “mutual” when defining consent. Consent is absolutely not mutual. It is highly individual. However, you and anyone you engage with in sex must simultaneously consent.
- “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! The offender KNOWS they used force, coercion or deception to induce sexual conduct. So “yes” does not mean “yes” when the word “yes” or “actions” that signify agreement are induced by force, duress or deception. Also, 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 permission for every little movement is uncalled for. Both parties must respect each other’s boundaries and stop conduct that the other person objects to right away. Continuing a behavior when the other person objects lacks consent. Failure to stop the behavior is an assault on their body.
- Affirmative Consent-
All CONSENT is affirmative!! There is no such thing as negative consent! Negative consent is an oxymoron. Being affirmative is inherent in the very nature of consent because consent is a form of AGREEMENT. Saying “affirmative consent” is like saying a “circular circle.” A circle’s shape is always circular. A circular circle is a redundancy just like “affirmative consent.”
Schools and universities have tried to establish the concept of “affirmative consent” in their Codes of Conduct. And the ABA attempted to create synergy between the language promoted at schools and the language in their suggestion to the states. Here’s why that fails…..
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
The Model Penal Code (MPC) Consent Provision is mostly correct, but 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 their statement right, even though their justice system fails to act on their consent provisions in accordance with their own statute.
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 convicted 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 not have wanted to perform if you had your wits about you.
Some states can only convict, in drug or alcohol cases, if the victim was rendered unable to consent by the actions of the offender. This concept is currently under fire because it is the victim’s ability to reason, 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 a reasoned decision.
The case is very tough to prosecute when both parties are drunk. If they were both drunk and got behind the wheels of their 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.
“Slippery slope” cases….
If you hop into bed with someone who tells you they’re single but they’re actually married with 3 kids and a dog named Fido at home, 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. If you fail to have a reasonable basis for believing their deception, you will not have a case that can be litigated in a court of law.
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 of any size, large or small. Petty theft does not warrant the same penalty as grand larceny, but we still recognize that a crime was committed. When an offender lies to get laid, they defile you – which is never a small matter no matter how small their deception was.
Whether they murdered you with a tiny arsenic pill, or a bomb, you died and they committed a crime. Using a little white lie to satisfy their lust-fueled intent creates the same sense of defilement as using an elaborate hoax. But whether the victim has a reasonable basis for believing the lie, and whether they have significant proof that they were defrauded, should determine whether or not a grand jury should indict. This same litmus test is applied in all cases where fraud is used to commit 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. When someone cons you out of your assets, a crime involving no bodily contact, they’re a criminal. 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’re committing a fraud in fact and crossing the line into a “reasonable basis” for your believing their deception.
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 they did.
If; however, they make an agreement to monogamy, tell you they love you and want to marry you, while saying the same thing to four other victims, taking each on a shopping expedition for engagement rings, and viewing properties for your upcoming marital residence….. 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. Bernie Madoff will spend the remainder of his life in jail after defrauding his victims in an elaborate Ponzi scheme. Inducing sex through fraud 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. 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, and to forward to the American Bar Association:
#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 for 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 General 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!
Letters to the American Bar Association should be addressed to Mark Schickman: Schickman@FreelandLaw.com
Get more information on consent by watching this TEDx Talk and securing your copy of YourConsent – The Key to Conquering Sexual Assault.