Re: For One Bill Cosby Juror, the Work Did Not End With the Trial- NY Times gets “Consent” All Wrong!

NY Times, 10/10 Article by Graham Bowley – Explained by CAN Chief Executive Officer, Joyce Short

Andrea Constand gave NY Times reporter, Graham Bowley my contact information after actively helping to support CAN’s efforts for 2 years. He was writing a story on the release of her book, The Moment.

Andrea had participated on several CAN Zoom calls to the legislators in PA, supported the distribution of “Your Consent – The Key to Conquering Sexual Assault,” and provided helpful efforts for the consent bills that are currently pending in New York. We had several discussions regarding the efforts CAN was making to define consent in penal laws. I welcomed her interest in putting me in touch with mainstream media.

Bowley and I discussed that there is no consent definition in penal law. I explained there is a difference between provisions and definitions….. that provisions tell you about actions, but unless the words used in those provisions are clear and accurate, they don’t achieve their goal. The sections on definitions clarify the words those provisions use. As examples, I mentioned the Cosby and Weinstein cases.

Judge Steven O’Neill, was unable to provide the jurors with a consent definition in the Cosby case when they asked for it. I explained what the Consent Awareness Network (CAN) had been doing to fix this terrible flaw, not just in PA, but in other states as well, and around the world. We talked about the bills CAN was able to launch in New York, and that the judge in the Weinstein case also refused to define consent for the jury because, like PA, no definition for consent exists in NY’s penal law.

Bowley said, “Wow, this could be a separate story about the efforts you’re making,” and asked my cooperation for an article.

After several discussions and much correspondence, the NY Times published Bowley’s article on Sunday, 10/10/21. I was shocked by what I read.

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More than a decade before meeting Andrea or Cheryl Carmel, the foreperson for the Cosby jury, CAN launched our mission to define consent in our laws. Since our Chief of Staff, Nina Lucas, lives in PA, she approached the Pennsylvania legislators well before the Cosby verdict, and we have fought to define consent since long before the #MeToo movement.

Despite these facts, Bowley characterized our efforts as driven by #MeToo….. just one of many distortions he wrote.

Left to right- Nina Lucas, Chief of Staff for CAN and Chief CAN Outreach Ambassador for PA, PA Senator Katie Muth, Joyce Short, CAN Founder and CEO, Cheryl Carmel, CAN guest and former Foreperson for the Cosby jury, May 2019, the office of PA State Representative, Wendi Thomas

Back in 2019, CAN invited Cheryl Carmel to accompany us to two meetings with legislators that we had arranged in Pennsylvania. Both before and after those meetings, CAN exchanged countless interactions with PA’s legislators by continued meetings, outreach to additional legislators, and correspondence. Cheryl’s role was specifically to explain what the judge had said to the jury in our 2019 meetings.

First-hand accounts are more impactful than third person stories. When I saw the jaws drop of all the legislators and staffers around the table, I felt assured I’d made the right call by inviting Cheryl. She did a great job and we appreciated her efforts.

After asking permission from many folks who had helped CAN in the 12+ year marathon we’ve worked on our consent mission, I gave Bowley the contact information for several and tracked down Cheryl to include her as well. We had a brief phone conversation in which I filled her in on the progress CAN had made in her 2.5 year absence.

In contrast to Bowley’s article, neither Cheryl, nor any of the participants to any of the many meetings we held in PA, ever introduced the concept of “unequivocal yes” as a condition for consent. In fact, the philosophy of “unequivocal yes” is the opposite of what CAN is trying to accomplish.

The legislative bill draft CAN worked on with Senator Katie Muth and PA State Representative Wendi Thomas contains no such language. I sent Bowley a copy of the PA draft. Cheryl had received a copy of the draft back in 2019.

CAN is a coalition, and the efforts of many folks move our mission forward. We have been aided by several survivors who have brought their first hand perspectives to the table. Several of the Weinstein, Cosby, and NXIVM survivors, along with our Consent Outreach Ambassadors from around the world, have devoted considerable time and energy to helping achieve CAN’s goal of defining consent properly for the public, and correcting Penal Laws.

Through this combined effort, CAN has been able to introduce two identical consent bills in NY, #A6540A and #S6200A, and secure the legislative bill draft in PA. We are currently working on a bill in New Jersey. We have also reached out to legislators in additional states and jurisdictions to define consent, including Texas, Indiana, Utah and Alaska, to name a few.

Our recommendation for defining consent has consistently been “Consent means freely given, knowledgeable and informed agreement. ” “Unequivocal yes” stands in stark contrast to this concept.

Current CONSENT progress

Bowley’s article makes it seem that CAN supports the concept of “unequivocal yes” as a determining factor in whether a person consents. Not only is requiring an unequivocal “yes” not the cure for sexual assault, or a definition for consent, it is problematic language that currently exists in the laws of several states and enables the blame-the-victim concepts that defense attorneys, like Donna Rotunno (who represented Harvey Weinstein) use in the courtroom.

There are only two definitions for “yes” in the English language:

1. Stating the affirmative,

2. An interrogatory, as when used as a question; “Yes?”

Unless the defense argues that the victim’s “yes” was an interrogatory, not an affirmative yes, all affirmative “yeses” are unequivocal and unambiguous. As stated, there is only one definition for an affirmative yes. Unequivocal and unambiguous means there are no other definitions for the word “yes” other than stating the affirmative. An affirmative (not interrogatory) “equivocal yes” would be an oxymoron. Yes never means “maybe,” Yes never means “no.”

When you say yes because someone influences you to do so through malicious behavior, they have undermined your self determination and stripped you of your agency. For this reason, saying yes cannot be the criteria for determining whether consent took place. Indeed, it did not take place.

Since I was not a fly on the wall when Bowley and Cheryl had their discussion, it’s hard to know if they had been confused by the term “unambiguous” in General Data Protection Regulation (GDPR). As a cyber security expert, when the judge failed to define consent, Cheryl used GDPR’s definition which contains the word, unambiguous.

Bowley used the word “unequivocal” in his article. Bowley seems to have used unequivocal and unambiguous interchangeably.

Merely uttering a “yes” would not qualify as a conveyance on the internet. If someone provided you with ambiguous information on the internet, GDPR would not consider your agreement as “consent.” You would not have been properly informed. GDPR is imperfect in its use of the term “unambiguous” to describe the conveyance of consent instead of describing that the information that informs your reasoning must be unambiguous.

The words and conduct of a victim of cyber fraud would not tie them to a maliciously induced agreement. A maliciously induced agreement is not “consent.”

Bowley’s article presents “unequivocal yes” as a new concept in penal law. In fact, several states have adopted or are considering adopting this ill conceived language. Yet Bowley fails to distinguish between CAN’s revolutionary call to correctly define consent in penal law from the myth of “unequivocal yes” – Assessing consent by the conveyance rather than by what influenced the plaintiff’s agreement, instead places blame squarely on the shoulders of the victim.

“Yes means yes,” is no more CONSENT than “no means no.” In fact, no always means NO, but yes, even as an affirmative, unambiguous statement, does not always mean “I consent.”

Consent is a noun, not a verb. It is one of several forms of agreement. It is the only form of agreement that entitles parties to engage in sexual contact. Neither assent – agreement on the face of it, nor acquiescence – agreement under duress, even though they are conveyed by an unequivocal yes, qualify as consent. Your words and actions can only convey consent if consent, not assent or acquiescence, is actually taking place.

It is the underpinnings of the agreement, the influence used to achieve the agreement, not the yes itself, that matters.

  • If the behavior of the accused, that influenced your compliance or your yes, was deliberately malicious, you did not consent.
  • If you were too young to be responsible for informed reasoning, you did not consent.
  • If you can’t reason clearly due to a disability, you did not consent.
  • If your brains were muddled by drugs or alcohol, you did not consent.
  • If you were unconscious, you did not consent.

The same issues that determine consent in theft and every other crime, determine consent in sexual contact. Consent is a word with a singular definition that never changes. It’s “freely given, knowledgeable and informed agreement,” all the time, every time. If your agreement is not freely given, knowledgeable and informed, you are not consenting, despite what you say or how you act.

Examples:

  1. Bernie Madoff died in prison because he tricked people into saying yes. They actually ran after him and begged him to take their money. But he deliberately conned them into their unequivocal yeses; therefore, while they assented, agreed on the face of it, they did not consent.
  2. Dr. Larry Nassar’s victims were also tricked into unequivocal yeses.
  3. NXIVM survivors were disfigured due to unequivocal yeses.

Any victim who suffered a crime through coercion or deception understands that no matter how affirmatively, vehemently, unambiguously, or unequivocally you spoke the word yes, you did not consent!

I had this conversation with Bowley by phone, text and email. However, despite my many attempts to get the perils in “unequivocal yes” across to him, he wrote the affects of “unequivocal yes” backwards in his article.

He claimed that defining consent to mean “an unequivocal yes” would protect against coercion or deception; but the effect would be just the opposite. Victims will provide a yes (which is always an unambiguous, affirmative statement, unless it’s an interrogatory) because they are scared or tricked into doing so. Jurors are instructed to apply laws literally. The victim’s yes, would be considered consent.

The offender knows if you did not consent. They know what they did to secure your compliance, even when you don’t know it yourself! The offender’s influence, not the victim’s conveyance, is what determines whether the crime is taking place.

If we simply define consent correctly in our laws, we stop blaming victims for saying yes because they were petrified or were tricked into compliance.

Mr. Bowley is giving oxygen to ignorance!

This quote by Graham Bowley establishes a contradiction. His concept establishes that saying yes is the criteria for determining whether the victim consented. Consent cannot be had by coercion or deception, but by saying yes, the unknowing or coerced victim, in accordance with yes means yes statutes, is blamed for their own victimization.

Are there actual codes that define consent?

Consent, in accordance with Nuremberg Code, Model Penal Code, GDPR, my TEDx Talk, the legislative draft in PA, and the bills (#A6540A and #S6200A) introduced in NY State, all define consent as “freely given, knowledgeable and informed agreement (#FGKIA.)” In other words, if your unambiguous yes is the result of force, fear, fraud, or other malicious actions by the accused, your affirmative statement is NOT consent!

Some states, like Texas and Missouri actually use the Model Penal Code provision on consent. But again, it’s a provision, not a definition. The Texas consent provision says “Consent is not effective if induced by force, duress, or deception. Problem is, they only apply that statute to theft, not sexual assault or rape. In fact, I have a video of a Sergeant in a Texas precinct stating so to a sexual assault victim. What’s more, he went on to say “Consent is not an element of rape in Texas.”

Missouri’s 2nd degree rape statute says, “Assent is not consent when induced by force, duress, or deception.” Again, this provision speaks in the negative and is not a definition. But even when a sexual predator defiled 30+ victims through a hoax, in Kansas City MO, the SVU Prosecutor ignored the case.

When you take your Covid vaccination, you sign a consent statement because of Nuremberg Code. If you are forcibly compelled, scared or tricked into doing so, regardless of what you conveyed by signing the document, you did not consent! In medical procedures, conveyance takes the form of a signature. But the signature itself is irrelevant if force, fear, or fraud compelled you to sign.

If the agreement itself was achieved maliciously, it is not a valid agreement because you did NOT consent! Your unambiguous “yes” does not make the ill gotten agreement consent.

It may interest you to know that my TEDx Talk, which explains the basic premise for consent, and GDPR, which contains the same language, with the exception of an unambiguous conveyance, were created oceans apart at the same time, May of 2018.

Recent examples of consent blindness

Cosby admitted he didn’t know if he had Andrea Constand’s consent. Weinstein claimed he was “confused.” Governor Cuomo claimed the bar had been moved. The public needs the simple, straightforward definition for consent, that a child can understand, so that we can hold even the most insensitive, determined predators accountable.

Defining consent is NOT complicated no matter how our legislators, law professors, and the legal establishment wants to make it seem. Our legal establishment should be enforcing the laws, not creating the laws. Law-making is the responsibility of the legislators we elect to do so. Instead of conducting the research to get it right, law makers rely on PACs and organizations that represent the collective voices of prosecutors and defense attorneys, who have their self interests at heart.

Legislators look at what other states have done, and mimic their laws regardless that those statutes are ineffective and our justice system is broken. Correcting the problem requires thinking outside the norms that perpetuate the problem.

Centuries of considering a woman “less than” are embedded in our laws and provided sexual entitlement to the men legislators wished to protect from prosecution for having a “good time” at a woman’s expense. They minimized defilement as entertainment, not a life changing trauma.

Some law makers, enough to have tipped the scales for generations, are concerned they’ll lose the votes of predatory constituents that fly under the radar screen, as our current laws provide. And they’ll lose support from wealthy sponsors, lobbyists, and PACS that pressure them to keep the status quo.

For centuries our laws failed to recognize that men can also be sexually assaulted. The concept that sexual assault is a woman’s issue still dominates how our laws are fashioned. Correctly defining consent has no gender. It protects everyone. It’s simple and it’s easily understood.

Defining consent under “General Law” in penal code establishes that the definition for consent never changes.

In NY, our penal laws use the word consent 162 times to convey when a crime takes place. But at no time does NY’s penal code, or the penal code of any other state, actually define consent in its list of definitions. Failure to do so creates laws that behave like a Swiss cheese umbrella, riddled with legal loopholes.

Once the definition for consent is codified into law, our justice system will be required by law to focus on the type of influence the accused used to secure compliance. Defining consent will eliminate the victim-blaming embedded in our laws. The correct definition for consent will be applied to all crimes, including sex trafficking, domestic violence, stealthing, nonconsensual use of cyber images, and more.

This conceptual change is a crucial paradigm shift in determining whether or not an assault took place, enables victims to secure justice, and holds sexual predators accountable.

Action items…..

Support the bills that have been introduced in New York by signing CAN’s Change.Org petition at http://bit.ly/BillPetition.

CAN is fighting to create legislative change throughout the world. If you would like to assist in this effort contact CAN at info@ConsentAwareness.net.

And by all means, this effort is costly. We can surely use your help. Please donate what you CAN to keep this transformational effort alive!

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