I'm a TEDx Talk Presenter.... "When YES Means No- The Truth about CONSENT!" And I've authored three books on Sexual Assault. My third, "Your Consent - The Key to Conquering Sexual Assault" is currently available on my webpage ConsentAwareness.net, and will soon be released on Amazon. It is changing what our nation's laws say about sexual assault.
I grew up all along the East coast, from Massachusetts to Georgia, and settled in NYC more than fifty years ago. I worked on Wall Street as a Corporate Bond Trader and a real estate broker. I'm a PTR Certified Tennis Professional for Adult and 10 & Under Development. I run a free tennis program for the children in my community. I've done so for over 30 years.
I was awarded a "Woman of Distinction" honor by the NY State Assembly. Information about my blog, was used by a Federal Prosecutor to indict a sexual predator with 30+ victims. I advocate for sexual assault survivors and I'm available to speak on the true meaning of consent to any interested organization or group.
I'm strong, I'm resilient....I'm a survivor!
Roe v. Wade established that no one had the right to force a woman into carrying an unwanted pregnancy to term. As a Baby Boomer, I have vivid memories of the days before abortions were legalized. I recall my mother’s screams as she lay on the kitchen table undergoing the at-home procedure that terminated the pregnancy she and my father did not want. No hospital provided a medicated alternative.
Very shortly after that, when “the pill” was experimental, my mother volunteered for a “trial” so neither she, nor anyone else, would ever have to suffer such a procedure. The elevated testosterone in the early trials was deadly…. causing cancer.
At 37, with no history of cancer in our family, Mom was diagnosed with rapidly growing, grade 4 breast cancer. Her treatments included a radical mastectomy, radiation treatments, chemotherapy, loss of her lymph nodes, and a partial hysterectomy. There was no option for reconstructive surgery back then.
A few years later, she suffered through the same procedures as her cancer spread to her other breast. Still undefeated, it invaded her lungs and her brain stem. She ultimately succumbed to the cancer that ravaged her frail body, after stoically battling for 12 years.
My mom, Louise Pelton Short, was an unsung casualty of life without the availability of legal, medical abortion. There is not a day that goes by that I don’t think of her and the many lessons she taught me about unconditional love, character, and morality. On Mother’s Day, and everyday, I miss her warm embrace, remember her smile, and listen to her guiding voice.
The Roe vs. Wade Disaster
SCOTUS is basing it’s objections to Roe on inappropriate interpretations of law. The Mississippi Gestational Age Act deliberately refers to a fetus as an “unborn human being.” Science tells us there is absolutely no way a fetus can sustain itself until well into its 2nd trimester, at 22 weeks. The concept of every fetus, regardless of gestational age, being an “unborn human being” is completely theoretical and based on religious belief, not science. SCOTUS is supposed to protect our rights to our religious beliefs which are clearly granted by the first amendment.
Justice Alito’s comments further misstate the connection between abortion, sexual relations, contraception, and marriage. While he agrees that the 14th amendment applies to the later three constructs, he refutes that the same “protection of liberty” granted by the 14th amendment applies to abortion.
Will someone please give his honor a lesson on the birds and the bees!!
He further states that our constitution demands that the states should take control of abortion law because state legislation reflects “citizens trying to persuade one another and then voting.” He fails to acknowledge that our federal checks and balances are the ultimate oversight over our rights and freedoms. He is abdicating the responsibility of the court to protect the opinions of the majority of US citizens. A CBS News Poll reports that 62% of our population does not want Roe vs. Wade overturned.
How did we get this way?
The imbalance created by our electoral system made governance by the minority over the majority a reality. Trump stacked the court, not out of concern about abortion, he had none. He simply needed to enlist Evangelists, bigots, and religious zealots to win the Presidency, so he traded our civil rights for election support.
His lack of morality has led us down this diabolical path where a woman’s self determination over her body is about to be unraveled by judges whose dubious sexual conduct show total disregard for CONSENT.
Justice Alito, and the additional justices who subscribe to this immoral grab of religious and commonsense freedom, have the Dark Ages opinion that a woman, and her chastity, are objects to be controlled. While they claim to be saving human life, they are, indeed, destroying the lives of countless women and girls.
CONSENT is at the heart of EVERYTHING pertaining to your property and bodily autonomy.
Our federal laws, and our state laws must protect every competent person’s right to consent on all matters. Whether your choices pertain to your property or your body, consent is always the same… freely given, knowledgeable and informed agreement, by a person with the capacity to reason, #FGKIA.
CONSENT is the human right basis for true freedom, and must become a civil right in all matters concerning who, when, and what you allow regarding your reproductive system.
What can you do?
Sign CAN’s petition! Call you legislator! Demand that they #CodifyConsent into law today, not only to protect you from rape, sexual assault, sex trafficking, and domestic violence, but also to protect your right to choice regarding abortion. Do it for all the Moms in the world…. present, past and future!
Today, Manhattan DA Alvin Bragg and Senator Cordell Cleare announced the intro of Bills #S8722 and #S8723 in the NY State Senate. They are intended to prosecute against sex trafficking children and mentally disabled victims. They eliminate the statute of limitations on this B-Felony crime, extend the statute of limitations for civil cases, and add mentally disabled folks to the coverage for children.
Bravo, on one hand, with a capital “B” for “But” on the other!
These bills show exactly why our justice system is broken. #S8723 clearly states the intent is to: “increase penalties in a very narrow scope of crimes.”
Why deliberately keep protection narrow?
This language reflects the systemic mindset of our legal establishment and legislators to cow tow to pressures about “allocations” when addressing crimes. This knee-jerk reaction against expanding penal code reflects that they claim costs could sky-rocket out of control….. “How can our budgets handle the influx of these cases?”
“Allocations” is not only a nonsensical and totally unproven objection, if it actually were true, it would flatly demonstrate the need for change. The very concept that prosecutors consider it may be true, is positive proof of the awful fact that finances outweigh public safety in their minds, and the minds of the legislators we empower to protect us.
Instead of providing commonsense protections to ALL victims of sex trafficking, they confine improvements to the few.
What about the cost to victims?
The National Sexual Violence Resource Center estimates the costs of rape (and sex trafficking is yet another form of rape) at 3.1 trillion dollars.
Yes, of course we should protect children and our most vulnerable population. That’s a slam dunk! But what about the huge volume of sex trafficked individuals who do not fall within these stated categories. Ignoring their needs is a glaring omission.
#S8722 and #S8723 are low-hanging fruit bills that recognize the crime, but turn their back on the vast majority of victims. Whatever happened to the 14th amendment that granted EQUAL PROTECTION for ALL!!
And where is consent?
The following is a portion of DA Bragg’s statement regarding the bills:
Expanding Statutes of Limitations
Trauma, fear, and cultural stigmas frequently lead survivors to delay reporting to law enforcement. New York has recognized this issue by eliminating the statutes of limitation for B-felony sexual offenses, including first-degree rape and incest, as well as aggravated sexual abuse, and course of sexual conduct against a child. Similarly, in 2019 New York extended the period in which survivors of child sexual violence can commence a civil suit.
Truly, “trauma, fear, and cultural stigmas” impede a victim’s interest in reporting a crime. But this insight fails to recognize the greatest deterrent of all…. these cases re-traumatize the victim because our penal laws fail to define consent. Instead, they base whether or not the victim consented on their words and conduct instead of recognizing that no matter what they said or did, if the accused maliciously influenced them to say or do those things, they did not consent.
Victims don’t come forward in a broken justice system that rips them to shreds instead of focusing on the influence of the accused. Only by correctly defining consent as “freely given, knowledgeable and informed agreement” in our penal code, can victims rely on the justice system to do its job. We must make this transformational change.
Providing survivors with a pathway to court, without the court having the tools to hold their offender accountable, is like handing a homeless person an empty refrigerator.
You can help!
Call DA Bragg at 212-335-9000, and NY State Senator Cordell Cleare at 212-222-7315, and say- “Regarding #S8722 /23; Please don’t leave adult victims behind!”
Then call your state and federal legislators. Demand change! Demand that they #CodifyConsent today! And if you want change in YOUR state, and you’re willing to roll up your sleeves to get it done, contact us at info@ConsentAwareness.net.
Calling your legislators to demand change will make all the difference in the world!
The first Tuesday of every April is the DAY of ACTION for Sexual Assault Awareness Month. Exactly one year ago, the very first bill to define CONSENT was publicly introduced at a news conference in New York City.
On this year’s #SAAM Day of Action- Tuesday, April 5th – the most impactful action YOU can take is to CALL YOUR LEGISLATORS and DEMAND CHANGE!
YOU can help offset the ignorance in our justice system by putting the definition for CONSENT at the top of every legislator’s agenda for transformational change!
Here’s all it takes:
On Tuesday, April 5th, call your legislator and say:
“I am your constituent. I want you to introduce the bill that will define CONSENT as “Freely Given, Knowledgeable and Informed Agreement” into our state’s penal code, today!”
CAN enlightens legislators around the nation to influence change. If you’d like to change the laws in your state or jurisdiction, contact us at Info@ConsentAwareness.net to get the ball rolling. We can bring the heavy artillery to compel the changes you need in your location!
While phone calls have the greatest impact on legislators emails leave a lasting impression. You can easily search online to find the email addresses of your local legislators and their Chiefs of Staff. We suggest you email both in order to secure a response.
Here’s a prototype of an email you can copy and paste:
Sexual Assault, Sex Trafficking, and Domestic Violence are only some of the many horrors victims suffer because our justice system is broken. Our laws must accurately define CONSENT as the “Freely Given, Knowledgeable and Informed Agreement, #FGKIA” that it is, in order to hold sexual predators accountable and secure justice for their victims.
I am reaching out to you to be a leader in the change to protect the public. I am interested in securing a date for a Zoom call with you, the Consent Awareness Network (CAN), and several of the survivors of high profile cases, in order to correct the dangerous flaw in our current penal law.
Please contact me with your availability for a date and time for this discussion.
CC: Info@ConsentAwareness.net to keep us in the loop for follow ups.
Bill 1079 which just passed in both the Indiana House and Senate shows utter, complete ignorance masquerading as progress! The sponsors claim they are defining consent without even mentioning the word consent in their statute!
What’s more, HB1079 embeds the antiquated concept that “No means No” into Indiana’s laws! Neither “No means No,” nor “Yes means Yes,” will do!
Consent is “freely given, knowledgeable and informed agreement. #FGKIA! Consent is a noun.
“To consent” is a verb which means “to convey consent to another.” You can’t convey consent to another (the verb) unless consent (the noun) is actually taking place.
Parents teach consent lessons to their kids every day:
“Don’t hit your sister.”
“Don’t scare your little brother!”
“Don’t trick your friends into giving you their toys!”
“Don’t sneak cookies while I take my nap.”
How you take ill-gotten gains matters! Rape is securing sexual contact through ill-gotten means. Nothing ill-gotten is given consensually.
The influence of the offender, how they go about getting your compliance, not the words and actions of the victim, determine whether a rape takes place. Using malicious influence is not okay. Under Indiana’s pending statute, they pick and choose specific types of ill-gotten sexual compliance, and ignore the rest. Plugging up a single loophole, among the myriad of loopholes that exist, is antiquated, dinosaur thinking!
The framers of 1079 know this. CAN participated in a “interim study” on consent conducted by the Indiana legislature back in 2020. Here is the video wepresented at their hearing. It was the very first video aired that day.
In addition, we had considerable discussions with the bill’s sponsors and was involved in the effort to define consent correctly when Donald Grant Ward admitted to rape by fraud, but was exonerated under Indiana’ s statutes. In fact, this case was the lead story in my TEDx Talk. The Indiana legislature refused to consider defining consent back then.
1079’s new modification will say you can’t force, threaten force, exploit incapacity, (which already existed) or proceed when the person says “no,” (new concept.) But what about all those victims that freeze without saying no? What about the victim who agrees because they think the rapist is someone else? What about the victim who agrees because the offender is their boss and they think they’ll lose their job? What about the fertility doctor who implants his own sperm instead of your choice of sperm from the options you received? What about the man who stealthily removes his condom when you agreed to protected sex?
Don’t get me wrong…. whenever you say “No,” your decision must be respected. But whether or not you say no should not be the deciding factor in whether or not you were raped. Your maliciously influenced utterances or actions are not the key. You were sexually assaulted if the offender used malicious influence to engage in sexual contact with you, even if they motivated you to say “yes” or comply.
Indiana’s laws should say so. And Indiana’s laws should ascribe a “degree” of harm based on the type of malicious influence that was used. Aggravated cases, cases that use violence, weapons or threats of violence or weapons, are the more egregious and should carry maximum sentences as 1st degree felonies. Other malicious influences such as non-physical threats or fraud should be lesser crimes like class D felonies or Class A misdemeanors.
Accurately defining consent in Indiana’s laws, as the freely given, knowledgeable and informed agreement that it is, would establish the human right of consent for the people of Indiana in all sexual conduct. It would eliminate every legal loophole. Instead, they are claiming they are defining consent without doing so, and they know it.
It’s truly an insult to society to claim a law does something it does not. 1079 absolutely does NOT define consent! It only acknowledges that when someone creates obvious opposition, they’re not consenting. Defrauding the public into thinking they’re defining consent when they’re not shows exactly how poorly 1079’s framers understand the meaning of consent.
Sadly, The NY Times misquoted me and grossly distorted CAN’s mission in the article that appeared in the Sunday, October 10, 2021 Arts section.
“Yes” is an affirmative reply. There is nothing unambiguous about saying “yes.” It never means “maybe,” and it never means “no.” Unless “yes” is used as an interrogatory, for example, if I called your name and you asked, “Yes?”……. yes always means yes. But yes does not always mean, I consent.
CAN’s message has always been: “Consent is freely given, knowledgeable and informed agreement.” As such, it is the influence of the party seeking sexual engagement that determines whether or not you consent. They cannot achieve your consent by malicious or derisive influence.
The current bill pending in NY Assembly, #A6540A (and its companion in the NY Senate, #S6200A) clearly state that consent is freely given, knowledgeable and informed agreement. CAN crafted that language and the wording in a similar bill for Pennsylvania which has yet to be introduced.
Regarding the NY Times Article
Mr. Bowley wrote a supportive article about Andrea Constand’s new book, The Moment. He approached me for a comment and, as we spoke, he enthusiastically stated that he would also like to write about #A6540A. I spent numerous hours responding to his questions by phone, text and email.
Instead of his article focusing on #A6540A, which he barely mentioned, he focused on a contrary concept which currently exists in law, and which some additional states are currently considering for their statutes. The underlying concept of the contrary law is that consent depends on an unambiguous yes.
Since all “yeses” are unambiguous, as clarified above, this vicitm-blaming concept means that anytime you say “yes” you are consenting. CAN is emphatically opposed to this concept, but Mr. Bowley’s article falsely makes it seem that we support it.
What seems to escape the understanding of supporters of the unambiguous yes concept, is that if your actions or words are affirmative, but you are being forced, tricked, or scared into those actions or words, you are not consenting, no matter how emphatically you are stating “yes.” Because the definition for consent never changes, consent is the same when giving consent for medical treatments, protecting your data on the internet, and is the determining factor in every other crime…. including sexual assault.
By defining consent simply and correctly as freely given, knowledgeable and informed agreement, society would be enabled to see that there are different types of agreement, but only consent legalizes sexual conduct.
An “unambiguous yes” achieved through fraud is “assenting”; providing agreement on the face of it.
An “unambiguous yes” achieved through forcible compulsion or threat of harm is “acquiescing”; providing agreement under duress.
But neither assenting nor acquiescing are consenting; providing agreement that is freely given, knowledgeable and informed.
Mr. Bowley frames my opinion as supporting “unambiguous yes,” when, indeed and emphatically, I do not!
Over two years ago, when CAN was speaking with legislators in Pennsylvania, I invited Cheryl Carmel to join us. Cheryl was the Foreperson for the 2nd Bill Cosby jury. She watched my TEDx Talk, which is clear about CAN’s position, and agreed to join our meeting.
First-hand accounts are more impactful than third person stories. My interest in inviting Cheryl was for her to relate to the legislators we had gathered that the Cosby judge could not respond with a definition for consent when the jurors asked. 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. I conveyed this to Mr. Bowley.
Mr. Bowley quoted me as saying: “I recognized it was important to bring Cheryl to the meetings with the legislators because she could really explain,” said Ms. Short.
What Cheryl explained, which I had made clear to Mr. Bowley, was solely the specific description of what the jury asked about consent, and what the judge responded. She had no part in defining what consent is, or should be, and neither stated a preference for “unambiguous yes,” to the legislators in Pennsylvania, nor to CAN’s representatives. She did not do so at the two meetings we invited her to, and she had no further discussions with legislators.
CAN worked diligently to craft the language that the legislative bill drafting committee used in PA, and has continued to fight for the correct definition for consent in additional states such as New York, New Jersey, and Utah. “Unambiguous yes” supports sexual predators who use all manner of malicious influence to drag a “yes” out of the mouths of their victims.
#MeToo’s Impact on Defining Consent
Bowley ties CAN’s efforts to #MeToo, which is another distortion. While we appreciate #MeToo’s ability to focus awareness on the volume of sexual assaults, our efforts to define consent in society’s laws long precedes #MeToo’s 2017 entry to the sexual assault narrative. We continue to fight for the correct definition in order to guide behavior and hold sexual predators accountable.
People Have a Right to Their Opinions
Unfortunately, opinions can be misguided, and I believe that the concept of unambiguous yes is a relic from an era in which women were chattel and sexual entertainment for their husbands. Unambiguous yes fails to hold offenders accountable for derisive or malicious influence. It puts the blame on the victim’s shoulders for their words and actions that result from such influence.
The one sure way of conveying what consent is, by law, is to simply define the word consent in our statutes. Anything short of that panders to predators. Doing so will be a paradigm shift that will affect how the public conducts itself.
Mr. Bowley’s article, rather than focusing on the clarity of #A6540A, (as he had stated he was doing,) conflates CAN’s mission with concepts we diametrically oppose….. giving oxygen to ignorance.
There was a time, all too recently, when politicians got to hide their immorality behind a cloak of positive gains for their constituents. New York State’s Governor Andrew Cuomo’s downfall exemplifies the sea change society is experiencing, where rising to public office demands walking the walk as well as talking the talk.
American history is rife with immorality. For centuries, our leaders were lauded despite their extramarital affairs, bigotry, and other immoral/illegal conduct. Only a few short years back, the two leaders of the NY State Senate and Assembly, Dean Skelos and Sheldon Silver, were both tried, and convicted of criminal charges. Two Governors left in shame, Elliott Spitzer and David Paterson.
I vividly recall the arguments between my mother and father at our dinner table when John F. Kennedy ran for President. His skirt-chasing was legendary, long before he was elected. My father argued that personal behavior had nothing to do with his ability to lead.
That was the time we lived in. For constituents with emotional empathy and conscience, those days are gone. We no longer close our eyes and separate the art from the artist.
Leaders must do more than provide gains. They set the standards of morality for our youth. They are the images that our children emulate. When their morality is flawed, they teach our children that bad behavior is acceptable, as long as you “get away with it.” In our techno-universe, information spreads like wildfire, unveiling personal character, and corrupting the character of the next generation.
No question about it…….
Governor Cuomo made monumental gains for New York. From building bridges, improving our commuter system, passing minimum wage requirements, creating marriage equality, and so much more, he was a champion. But he failed to recognize his responsibility to be a person our children could admire and emulate. By ignoring his obligation to secure consent from women who he found attractive, he showed that New York’s failure to correctly define consent in penal law, starts at the top, then trickles down throughout the ranks to legislative dinosaurs just like him.
It’s not only time to part with Governor Cuomo, but to ferret out the additional legislators with the same archaic mindset that prevents “consent” from being clearly defined in our laws!
We need to contact every NY legislator and ask, #WillYouCodifyConsent? Only re-elect those who respond #IWillCodifyConsent!
It’s way past time to make the transformational change that enables our growing generation to comprehend what CONSENT actually means, so we can hand them a world where we’ve conquered sexual assault!
Consent is freely given, knowledgeable and informed agreement. #FGKIA! This definition should appear in every penal code across the US and around the world!
Why the Supreme Court of PA overturned Cosby’s guilty verdict baffles the mind!
Justice Wecht wrote the court’s opinion. Although their decision claims District Attorney Bruce Castor gave Cosby immunity from criminal prosecution, he totally lacked authority to do so. His authority only extended to whether or not he would prosecute the accused. A determination of “immunity,” however, according to Pennsylvania’s statutes, must be made by a judge. No such determination was granted.
Any Pennsylvania judge, including the four rape apologists who favored the opinion to vacate, Justices Todd, Donahue, Wecht and Mundy, could and should have known better.
Cosby’s defense attorney, equally at fault in guiding his client, advised Cosby that because he was not being prosecuted, he did not have the right to plead the fifth amendment during the civil trial. During his civil depositions, Cosby admitted he engaged in sexual contact with Constand – after administering drugs that rendered her incapacitated.
Fortunately, three of the Supreme Court Justices expressed dissenting opinions, Justices Dougherty, Baer and Saylor.
“I begin by addressing an underlying issue that the majority says little about but which I believe looms large: Castor’s apparent belief that, as an elected district attorney, he could forever preclude his successors from prosecuting Cosby.”
He goes on to say: “And it would effectively assign pardon power to District Attorneys, something this Court has already rejected as unconstitutional.”
Justice Dougherty, also disputed the remedy of vacating the judgment, as stated in Justice Wecht’s opinion which says: “He must be discharged, and any future prosecution on these particular charges must be barred.”
Rather, Justice Dougherty makes a solid case for suppressing Castor’s illegally obtained evidence and supports doing so by stating: “So drastic a step” merely increase[s] to an intolerable degree interference with the public interest in having the guilty brought to book.” Blue, 384 U.S. at 255.6
“I respectfully disagree with the majority’s determination that the press release issued by former District Attorney Bruce Castor contained an unconditional promise that the Commonwealth would not prosecute Appellant in perpetuity. See Majority Opinion, slip op. at 50-52, 60-64. Rather, I read the operative language — “District Attorney Castor declines to authorize the filing of criminal charges in connection with this matter” — as a conventional public announcement of a present exercise of prosecutorial discretion by the temporary occupant of the elected office of district attorney that would in no way be binding upon his own future decision-making processes, let alone those of his successor.”
The determination of the Supreme Court of the Commonwealth of Pennsylvania can only be overturned by the Supreme Court of the United States. Four Commonwealth of Pennsylvania justices have granted unconstitutional pardon power to the District Attorney. If there were ever a sexual assault case that warranted review by the highest court in the land, this is it!
Both #A6540A and #S6200A clearly state the definition for CONSENT in penal code. Presently, not a single state across the US provides this important definition. These bills are pending right now and need your support! Here is the actual wording from both bills:
Section 1. Section 10.00 of the penal law is amended by adding a new subdivision 22 to read as follows:
22. “Consent” means a freely given, knowledgeable and informed agreement.
Society needs absolute clarity on the meaning of consent to hold offenders of every crime accountable. “Consent” appears over 100 times in the Penal Code of New York State with NO DEFINITION! Defining consent in NY will echo across all boundaries and change the world!
Both bills, one in the Senate, and one in the Assembly, will establish that the definition for consent never changes, no matter what conduct is taking place. Consent is always:
“Freely given, knowledgeable and
informed agreement! “
The correct definition for consent will be applied in all crimes; sex trafficking, revenge porn, cyber fraud, theft, larceny, kidnapping, and more. It will protect people of all genders, religions, and national origins. It will prevent the victim-blaming that defense attorneys use to discredit victims and shred their character in sexual assault and rape cases.
Write to the appropriate legislators!
The following links can be used to create your own wording to reach the sponsoring legislators directly. Your voice will make a meaningful difference in conquering sexual assault and all crimes in which consent is a factor.
Dear Assembly Member Seawright and Senator Sanders,
Thank you for introducing NY State Bill #A6540 and NY State Bill #S6200. I wholeheartedly support passing these aforementioned bills.
Defining consent in our laws is absolutely crucial in providing equal protection for all. Society needs to know and be guided by the following definition:
“Consent means: Freely Given, Knowledgeable and Informed Agreement”
And because this is the actual definition for consent, the use of malice to influence a victim’s compliance can never be considered consent in any crime. Our statutes must be clear on the definition for this important word that appears over 100 times in the penal law of New York State.
If House Bill #5, introduced by Representative Geran Tarr passes, it surely will be! Your chance to stop this archaic, harmful rape mentality from embedding in the penal code of yet another state is tomorrow, April 13th, at 3 PM PST.
The language in Rep. Tarr’s bill states:
“Sec. 6. AS 11.41.470 is amended by adding a new paragraph to read: (9) “consent” means a freely given, reversible agreement specific to the conduct at issue; in this paragraph, “freely given” means agreement to cooperate in the act was positively expressed by word or action.”
CONSENT is just plain commonsense- and this bill does not accurately define what consent is. Consent is accurately defined in Nuremburg Code, General Data Protection Regulation (GDPR,) and NY State Assembly Bill #A6540:
“Consent is freely given, knowledgeable and informed agreement: such agreement must be obtained without the use of malice such as forcible compulsion, duress, coercion, deception, fraud, concealment or artifice. “
Correctly defining consent makes it crystal clear that the offender cannot maliciously extort agreement, regardless of the words and conduct of the victim, and claim that they had the victim’s consent.
It’s time our laws rip off Penal Code’s consent-blinders that make sexual assault the fault of the victim!
HB#5 fails to consider power differentials or deceptions that would cause the victim to act in diametric opposition to their will and their interests. And it fails to consider that the offender knows they have extorted agreement maliciously even when victims, themselves, do not.
Under Rep Tarr’s bill, the defense can argue against coercion and fraud on the basis that the victim’s words and actions signaled agreement. This language is the root of why defense attorneys are able to tear into the character of the victim to defend their client against rape and sexual assault charges. No other crime on the planet makes the victim responsible for the harm they suffered.
How can you help?
Tomorrow, April 13th, at 3 PM, GMT-8, (Anchorage Time) a live legislative hearing will take place in Alaska on HB#5. You can watch the hearing on this link. Be sure to tap the “Live Now” tab.
You can call the legislature to express your opinion at the hearing . The legislators will be listening. Here are the numbers you can dial, depending on where you are located:
Be sure to convey that the words and actions of the victim should never be on trial. The words and actions of the offender, who influenced the decision making processes of the victim, are what constitutes the crime.
Stop consent blindness from becoming Alaska’s law, and help open every state’s eyes to the archaic use of “words and actions” to determine when rape or sexual assault takes place.! Sex crimes happen when sexual predators exploit their victims for carnal contact.
Here is the statement I will be making during today’s hearing if I’m able to secure access. Feel free to use any portion of it in the statement or email you introduce:
“I’d like to thank each legislator for your time and consideration today.
I’m Joyce Short. I am the author of “Your Consent, the Key to Conquering Sexual Assault” and the founder of the Consent Awareness Network. While there is nothing I’d like better than embracing a bill to prevent sexual assault, I cannot support HB5. And the reason is:
HB5 creates a contradiction that will embed rape mentality in Alaska’s penal code.
HB5 correctly defines consent as freely given agreement. Therefore, by its very nature, such agreement cannot be achieved through malice such as force, fear or fraud. I like to call them “the three f-words” than should never take place in sexual conduct.
It is the conduct of the accused, in securing agreement……in other words, did they employ a malicious means to secure their victim’s agreement, which separates sex from sexual assault; not the words and actions of their victim,….. the criteria stated in HB5.
HB5 clearly states the freedom to choose, free of undue influence, and the disregard for this freedom together in the very same provision.
The words and actions of the accused determine whether they committed murder, larceny, kidnapping, theft, and a host of other crimes. By including, in sexual assault law, that the words and conduct of the victim determine whether a rape or sexual assault takes place, HB5 contradicts the premise that consent must be freely given, and instead, blames the victim for their own rape and defilement.
Agreement from a person who is scared into agreeing is acquiescence. Agreement by a person who is defrauded into agreeing is assent. In fact Missouri’s rape in the 2nd degree statute states clearly that Assent is not Consent when induced by force, duress or deception.
All offenders know whether they are using malice to gain compliance from their victim. The use of Force, fear and fraud is premeditated. It does not occur accidentally. Whether or not the accused used malice to gain access to the victim should be the single determining factor in whether or not they committed a sex crime…… not what the victim said or did that resulted from that malice.
I urge legislators to adopt the definition for consent proposed in Assembly bill A6540 in NY. The identical bill is also awaiting an index number in New Jersey, and has been drafted and awaits introduction in Pennsylvania.
And I further urge legislators to strike the rape mentality that blames victims, not the offender whose premeditated malice stripped them of their self-worth and shattered their trust.
Failure to do so enables defense attorneys to shred the character of the victim on the stand. Removal creates trials in which the conduct of the offender, not their victim, determines their guilt or innocence.
I am readily available to discuss this issue further with any legislator who is interested.
A person’s body is not the offender’s entitlement. It’s where they live. Alaska’s laws should protect the bodily autonomy of every resident or visitor to your great state whether male or female.
Assembly Member Rebecca Seawright recently introduced Assembly Bill #A6540, Defining Consent, in New York’s general laws. This definition should echo throughout the halls of justice in every state and territory across the US and around the world! It will set the record straight on consentin all crimes, place responsibility for sexual assault, rape, and sex trafficking on the shoulders of the offender, and prevent the victim-blaming concepts that have been ingrained in our sexual assault laws for centuries.
Why is this important to you even if you’re not a New Yorker?
All legislation begins because one legislator is brave enough to make a difference! Assembly Member Seawright has stepped up to do so. Once one jurisdiction codifies a code, it opens the door for others to follow and illuminates their path.
Currently, no US state or territory defines the word “consent” in its laws. This deficiency makes prosecuting sexual predators extremely difficult and fails to provide the guidance to hold them accountable. #A6540 not only defines consent in sexual assault, but in every crime covered in penal code, the word “consent” will be recognized as “Freely Given, Knowledgeable and Informed Agreement, #FGKIA.”
A press conference to introduce the bill to media took place at the office of Asm. Rebecca Seawright at 12 noon on the Day of Action, Tuesday, April 6th.
Can you help create this monumental change?
You can log onto the webpage for the bill and give it an “aye” vote. While you’re there- please leave a comment as well!
And there’s more…..
A template is below in support of NY State Assembly Bill #A6540 and Senate Bill #6200. Or simply use this QR. It will send the email for you to the authors in both legislative houses.
Assembly Member Rebecca Seawright for Bill #A6540 . Tap this link to send an email message of your choice or from the template.
Senator James Sanders Jr. for Bill #6200. Tap this link to send an email message of your choice or from the template.
The bills are currently located in the Codes Committees for their respective houses. The members of the Assembly Committee are listed below. It is very helpful to send emails or make calls to them as well.
Every single one of them needs to know YOU support #A6540 and S6200!
April 6, 2021
I support Bill #A6540, defining consent as “freely given, knowledgeable and informed agreement!
The lessons learned from the Weinstein and Cosby trials can fix our broken justice system regarding sexual assault, and this bill creates the needed clarification. No judge should ever refuse to define consent when asked by the jury. This bill provides the accurate definition that will guide behavior and hold sexual predators accountable.
The 14th amendment of the US constitution grants everyone equal protection under the law. Sexual assault laws cannot provide equal protection unless and until every jury defines consent accurately and consistently.
The guidance provided by this bill will prevent the blame-the-victim language in our laws that enables defense attorneys to pull apart victims on the stand. It makes clear that the offender’s behavior, not the “words and actions” of the victim, such as their clothing , their prior sexual history, or even their past relationship with the offender, is the determining factor in whether consent occurred because when malice by the offender is present, consent is not.
Consent is a word with a definition. The definition does not change based on the application. No matter what you are consenting to, the definition remains the same. If you are consenting to turn your property over to someone, if you consent to taking a Covid 19 vaccination, if you consent to sexual conduct, consent is always freely given, knowledgeable and informed agreement.
Three legislative bills to deal with sexual assault have just been introduced in three individual states this month. CAN actively engaged with the legislators for each one.
In fact, to emphasize our point, we conducted Zoom calls and appeared in hearings with legislators, and we included several celebrities who understood the failure of our laws because they’re Weinstein and Cosby survivors. Our heartfelt thanks goes to Rose McGowan, Andrea Constand, Jessica Mann, Mimi Haley, Dawn Dunning and Tarale Wulff.
While the attention to sexual assault is welcome, to effect meaningful change, legislators can’t simply regurgitate flawed language that supports outdated myths!
Unfortunately, none of the three bills that were introduced contain specific, game-changing, legislative language to conquer sexual assault. Instead, while they, indeed, criminalize a specific behavior we advocated for fixing, rape by impersonation, they perpetuate the victim-blaming mentality that’s engrained in our justice system.
Your help could fix this!
When writing legislation, legislators often rely on laws that already exist in other jurisdictions and settle for copy-catting ineffective statutes. The theory behind this method is that they can defend their bill by saying…. “Well, so-and-so does it this way.”
My mother (RIP) used to say: “If so-and-so jumps off a bridge, does that mean you should do it too?”
The bill in Alaska relies on the language of federal military law to establish its consent provision. Their House Bill #5 submitted by Representative Geran Tarr on January 8, 2021, states:
Sec. 4(9) – “Consent” means a freely given, reversible agreement specific to the conduct at issue by a competent person.”
Alaska is the state with the highest rape statistics. But even their horrific numbers are outdistanced by the military in which 50% of females are sexually harassed or assaulted, with virtually no recourse. Is it really the right statute to emulate?
The military’s language falls short because it leaves out one of the most important characteristics of consent: it must be “knowledgeable and informed.” The public often makes the mistake of thinking of consent as any old form of agreement, but that’s incorrect. There are three basic types of agreement that frequently occur in sexual contact:
Assent- Agreement on the face of it,
Acquiescence- Agreement under duress,
Consent- Freely given, knowledgeable and informed agreement #FGKIA.
While “consent” can only take place between two competent people, consent does not exist when one of those people induces the other’s agreement through force, fear or fraud.
The military’s consent language fails to take into account that the offender’s artifice in inducing agreement determines which type of agreement is actually taking place. Inducing consent is the only form of agreement that makes sexual contact legal. Problem is, no state defines consent, and the federal law neglects to include that one must have competent information in order for their agreement to qualify as consent.
Larry Nassar is in jail for the rest of his life because he induced agreement through the artifice of deception. While his victims assented, agreed on the face of it, they in no way consented, freely gave knowledgeable and informed agreement. While some of his victims had not obtained the age of competence, others had done so. Regardless of their competence level, however, they were all victims of rape by fraud in the factum because the information he gave them was not competent information.
Actually, “revocable” is more to the point. But it goes without saying that because, to qualify as consent, your agreement must be “freely given,” the minute you change your mind, you are no longer consenting.
If; however, legislators feel more comfortable including the concept that consent can be withdrawn in order to emphasize the point, revoke means “to put an end to.” Reverse means “to make the opposite of what it was.”
Revoking clearly means stop, in the moment. Reversing begs the question of what actually existed in the first place and whether you can reverse your decision after the fact. Clearly, freely given knowledgeable and informed agreement can be revoked, but not reversed.
Your discovery that you were forced, coerced or tricked into thinking you were consenting is not a reversal of consent. It is a recognition that the type of agreement that actually took place was not consent to begin with because the malicious conduct of the offender prompted your agreement. The offender disrupted or overpowered your thought process, but only for so long. Our laws need to be crystal clear!
Another glaring mistake in Alaska’s bill…
Sec. 3. AS 11.41.445 is amended by adding a new subsection to read: (1) an expression of lack of consent through words or conduct means there is no consent;
Surely, you are not consenting when your words and conduct convey such. But it’s consent-blind to think that the victim’s ability to discern whether they are being sexually assaulted – in the moment – is always accurate. Saying, or acting like a “no” cannot be the only dividing line between consenting and not consenting, but that’s often how this provision is misused in a courtroom.
Larry Nassar’s victims certainly did not discern, in the moment, that they were being sexually assaulted. Sexual predators go to great lengths to undermine knowledgeable and informed agreement by all forms of deception, duplicity and artifice, that a reasonable person would have difficulty detecting.
Also, victims are often too scared, startled, traumatized, or injured to assert a refusal through words or conduct. The reliance on the victim’s words or conduct takes the responsibility for securing #FGKIA, and places responsibility for their own sexual assault squarely on the shoulders of the victim.
“Words and conduct” are a conveyance. But they can only convey consent when and if consent is actually taking place. Whether the victims knows, or does not know that the offender is undermining the elements needed for consent, the offender knows full well what they are doing. A person’s conduct is criminal because of what they do, not what their victim does. In fact, in courtrooms, victims are considered witnesses to a breech of the state’s code by the accused.
We know #FGKIA is the actual definition for consent because several currently in-force, and strictly adhered-to codes and laws tell us so….
Nuremburg Code, which establishes consent for medical treatment and experiments,
Model Penal Code which was created by the American Law Institute in 1962, and has been adopted into law in several states to protect against theft,
General Data Protection Regulation that protects your cyber-security on the internet and is international law.
All of these codes and provisions are clear that consent is Freely Given, Knowledgeable and Informed Agreement, #FGKIA.
This hazardous relic from the Roman era is what makes defining consent so vital in the struggle to conquer sexual assault. It’s a legal doctrine that means, “What’s not prohibited by law is permissible.” Defining consent by specific instances that are “not consent.” fails to cover all the ways consent does not take place. The only way to cover all the ways that consent does not take place and protect against sexual assault is to properly define consent and establish that sexual conduct without consent is a sexual assault.
Claiming that the way to determine if the victim consented or not is to judge whether they made an utterance or tried to get away…. as courts interpret “words and conduct”….. fails to consider all the varied reactions a victim could have when they’re being sexually assaulted – including freezing. It’s the remaining, ugly vestige of patriarchal, rape mentality that’s been passed down in our laws century after century. Our present law makers should make it stop, not perpetuate this victim-blaming language.
The victim’s reaction should not be on trial. The actions of the offender should be on trial. “Words and conduct” puts the victim’s actions on trial. By correctly defining consent, the offender’s efforts to maliciously suppress their victim’s resistance would be on trial.
In real life…..
Donna Rotunno, Harvey Weinstein’s lawyer, exploited the failure of the “words and actions” provision in New York’s laws, claiming that the words and actions of his victims acquitted her client. Fortunately, because five victims stepped up to establish Weinstein’s predatory behavior, he was convicted. But in cases where one victim, alone, has been harmed, the likelihood of conviction is rare. In fact the likelihood of an arrest is infinitesimal.
We’ve all known the horrible statistics, we just didn’t know why. The “why” is that our laws, that we rely on for justice, blame the victim instead.
Alaska’s bill raises fraud as an artifice but narrowly limits the application.
The 14th amendment of the US Constitution grants equal protection under the law. The public needs protection against all forms of sexual assault, not just some forms of sexual assault. Fraud is frequently used by sexual predators as their weapon of choice.
Fraud is not difficult to understand. Juries consistently determine guilt and innocence in theft by fraud cases. Fraud is not different in sexual assault by fraud cases. Here are its 5 steps:
You know you’re deceiving
You expect your victim to believe your deception
They believe your deception
They suffer harm as a result of believing your deception
Fraud can be used to create all sorts of crimes, including sexual assault. Clearly, when we understand that consent must be “knowledgeable and informed,” we can understand why defrauding a person for sex is a crime. Keep in mind that in order to prosecute a fraud case, the victim would have to have significant proof that a fraud, indeed, took place,
In addition. the prosecutor would have to be convinced that a “reasonable person” would have been deceived under the same circumstance.
The job of the jury is to act as “reasonable people,” in fraud cases and other crimes. In fact, in the Bill Cosby case, when the jury asked for the definition for “consent,” Judge Steven O’Neill responded; “You’re ‘reasonable people’; use your commonsense,” because no definition for consent exists in Pennsylvania’s laws.
HB 5’s narrow wording on sexual assault by fraud, confining the crime to “someone pretending to be another person,” is not sufficient to protect Alaskan’s from all forms of sexual assault by fraud.
Many of our legislators, principally male, think it’s trivial, even good sport, to defile a woman by defrauding her. If you look back at the immorality of our forefathers in owning slaves and conducting extramarital affairs, it’s hard to fathom how our country became the standard bearer for human rights. While we’ve abolished slavery, we still have not abolished sexual assault.
Even today- our legislators are reticent to take a clear position to prevent defilement by fraud because they either fail to see the life-changing harm in the conduct, or fear that their base fails to see it, and they will lose their support.
Our penal codes separate “sexual assault” provisions from “assault” provisions because of the devastating impacts of defilement on a person. That defilement can take place from all violations of sexual autonomy, not only violent ones.
As civilization has evolved, we’ve recognized that sexual assault can happen to men as well as women, but the stereo-typical concept that sexual assault is a “women’s problem” perpetuates dismissiveness. While our laws are clear that consent is freely given, knowledgeable and informed agreement when protecting a man’s property, we deny that the same definition applies in sexual contact.
Corrected, accurate wording, that is consistent with HB #5’s objective, is:
“Consent is freely given, revocable, knowledgeable and informed agreement, by a competent person.“
Although being “revocable ” is understood by the fact that consent must be freely given, it does not hurt to include the information for clarity.
And if, in addition, Alaska’s Penal Code stated that “Nonconsensual sex is sexual assault,” like the ItsOnUs Pledge tells us, folks in Alaska would be able to secure justice for all types of sexual assault. But instead, the bill states specific types of sexual assault, leaving abundant legal loopholes for predators to slip through.
Defining consent correctly would put all sexual predators on notice, guide their behavior, and hold them accountable.
Indiana- the new Hoosier bill
I am truly ecstatic to see the new sexual assault by fraud bill, HB 1176, gain traction in Indiana’s legislature! Back in late 2017, I began communicating with Indiana State Representative Sally Siegrist to help enact legislation for Indiana. In fact, my TEDx Talk focused on the case that served as Indiana’s “Ah-Ha Moment” for creating the bill. The information was picked up by Buzzfeed, Nightline, Inside Edition, the NY Times, and additional media outlets.
A female student at Purdue University was defrauded for sex by an imposter; a male student named Donald Grant Ward. Ward climbed in bed with her – after seeing that she was asleep and her boyfriend had left the room. She had fallen asleep in her boyfriend’s bed, with his arms embracing her. Thinking Ward, who stroked her breast, was her boyfriend, she engaged in sex. When she learned the truth, she and her boyfriend called the police.
Even though Ward readily admitted to tricking her, and confessed his intent to do so to the police, the arrest led to an acquittal because rape by deception is not a crime in Indiana. And, like every other state, Indiana has no definition for consent.
I had hoped that with Rep. Siegrist’s help, we could close the legal loophole in Indiana’s law on rape by fraud, and provide Hoosiers with greater protection against sexual assault with a clear definition of consent.
South Carolina State Representative Mandy Powers-Norell saw the Buzzfeed article that featured both myself and Rep. Siegrist. She was determined to make a difference and submitted HB 3829 last year, which died in committee.
New cast of characters
On January 7th, this year, Rep. Siegrist’s colleague, Rep. Sharon Negele, along with Rep. Donna Schaibley, and Rep. Sue Errington, introduced HB 1176 to get the job done in Indiana.
Over the summer, the Indiana legislators agreed to conduct an Interim Study on Consent. CAN submitted a video which launched the discussion, featuring myself, Tarale Wulff and Mimi Haley, both Weinstein survivors who had testified against him. Our interest was to get the over-arcing protection of “consent” codified into Indiana’s laws. The Zoom hearing contained heart-wrenching stories about the invalidation and injustice that results from Indiana’s failure to define consent.
One of those stories was presented by Liz White, a mother who’d been artificially inseminated by a doctor who lied about the sperm he was implanting. Instead of the donor he claimed, Dr. Donald Cline used his own sperm. Her research uncovered that he had fathered 90 children by defrauding his patients. He has approximately 180 grandchildren. As a result, his community is at high risk for unknowingly incestuous relationships among his offspring. Ms. White asked that the act of switching sperm by a fertility doctor be included as a sexual assault by fraud.
Sometimes, when you reach for the sun, you get to the moon.
Instead of a consent bill, a narrowly confined sexual assault by fraud bill, specifically making the sexual assault at Purdue University a crime, is finally pending.
During a recent legislative “reading” of the bill by the Codes and Courts Committee, Courtney Curtis, with IPAC, the organization representing Indiana’s Prosecutors, said that sexual assault cases in Indiana result in “disparate treatment from courtroom to courtroom.” Yet despite her statement which underscores how badly needed defining consent actually is in Indiana, she failed to support defining consent in Indiana’s laws.
Curtis went on the claim that fraud is confusing. She failed to acknowledge the simplicity with which judges explain fraud in theft cases exactly as I described above. The committee voted in favor of the narrow bill as written, without including an amendment Ms. White requested. Subsequently, the bill passed in the House of Representatives by a 90 to 4 vote.
HB 1176 also contains the blame-the-victim language created by the concept that a victim’s “words and conduct” convey consent. In fact, they only convey consent when consent, freely given, knowledgeable and informed agreement takes place, not when the offender uses force, fear or fraud to undermine the victim’s self determination.
I truly hope HB 1176 passes, because closing even one legal loophole is far better than doing nothing! But I urge all readers to use your voice to appeal to Indiana’s legislators for clarity on what sexual assault actually is! They need to stop the victim-blaming nonsense they are embedding in their statutes, and recognize their responsibility to “equal protection under the law:” If one act of fraud to induce sexual contact is a sexual assault, then all acts of fraud to induce sexual contact is a sexual assault. And influencing a victim’s decision making process through force, fear or fraud, should never be seen as consent in a court of law. I urge you to use your voice by writing to the legislators who are sponsoring HB 1176. You’ll see their contact information at the end of this post.
Without the definition for consent clearly codified into Indiana’s laws, there is no end to the loopholes that sexual predators can dive into in order to assault their victims.
Last but not least, Utah!
On June 5th, 2020, CAN joined forces with the WE-Will Organization to reach out to Utah State Representative Angela Romero about defining consent in Utah’s laws. On January 8th, 2021, she, along with Senator Todd Weiler introduced HB 0213, entitled “Consent Language Amendments.”
In Section 1. 76-5-406 (2)(g), the first suggested amendment expands the state’s acknowledgement of when consent does not take place from impersonation of “a spouse” to “someone else.”
Just like the Indiana bill, Utah’s bill is a big, but narrow win for sexual assault by fraud. But it’s a legislative loophole plugger, not a consent definition. It fails to deal with any other deception or method for undermining a victim’s right to #FGKIA,
If sexual assault is a crime, and we know it is, as a result of the 14th amendment, the public deserves protection from all sexual assaults, not simply a few selected ones. Only by recognizing that consent is freely given, knowledgeable and informed agreement, will the public be properly served by Utah’s penal code.
Making it simple
If someone threatens you in order to get you to give them your car, they’re committing grand larceny. If they threaten you to induce sexual contact, “You agreed, didn’t you?”
In New York, Bernie Madoff will spend the rest of his life in jail because he defrauded victims of their assets by false pretenses. He did so in a manner that a reasonable person would not suspect.
But if you show your victim a divorce decree, with a raised seal and judge’s signature, claiming that you’re divorced when you’re not, in order to sexually penetrate them, they have absolutely no recourse when they discover the decree is a forgery. This, by the way is an actual case in which the Honorable James J. Panchik, a divorce judge in Armstrong County Pennsylvania, whose signature was forged on the document, was notified and failed to do anything about it.
One more important thing…….
Do sexual predators actually read penal code? Probably not! At least, not ’til they’ve been caught! In fact I dare say, most of the public has never read it either.
Laws that drone on with legal-ease negatives about specific nonconsensual acts do not give the public the guidance and accountability that defining consent clearly, in simple terms, will create.
Can we make it simpler than “Consent is freely given, knowledgeable and informed agreement?” That’s what it is! A six year old child can learn and understand it.
They don’t have consent if they lie that they finished their homework in order to have a cookie.
They don’t have consent if the kid next to them on the school bus dropped their lunch money. They are responsible to return it.
They don’t have consent if they bully a younger child to give up the swing when they want it.
Sen. Todd Weiler- email@example.com – 801-599-9823
Here’s a simple message for you to cut/paste and fill-in the blanks:
Thank you for your efforts to create Bill _______.
While I support all legislative changes to combat sexual assault, I see that this bill fails to accurately define consent, and this failure perpetuates rape and sexual assault.
Please include this wording in your bill:
“Non-consented-to sexual contact is a sexual assault, and a violation of the victim’s human rights. Only “freely given, knowledgeable and informed agreement” is consent in the state of _____.
Your name, address, and phone number
One more thing…..
CAN simply CAN’t do everything that’s needed without your help! No matter how large or small your contribution is, it’s welcome and will be put to good use to fight for CONSENT laws across the US and around the world!
Watching the latest Cosby show, his appeal hearing in front of Pennsylvania’s highest court, you’d think that rape was a legal-ease, hair splitting triviality, rather than a defiling, premeditated, vicious cruelty.
On December first, the attorneys for the Commonwealth of Pennsylvania and for Bill Cosby’s defense, presented their positions to Pennsylvania’s seven Supreme Court Justices; Thomas G. Saylor, Debra Todd, Max Baer, Kevin M. Dougherty, Christine Donohue, David N. Wecht, and Sallie Updyke Mundy, to decide Cosby’s fate. He is appealing his Aggravated Indecent Assault conviction which was previously upheld by a lower appeals court
First Basis for Appeal-
Cosby’s defense attorney, Jennifer Bonjean, argued that Cosby had been granted immunity from prosecution in exchange for not exercising his right to plead “the fifth” in the civil case brought by Andrea Constand, a victim he lured to his home under the guise of “mentorship,” in order to drug and sexually assault her. In his civil case deposition, Cosby testified that he slipped Constand Benadryl, that he had several prescriptions for Quaaludes that he intended for sex targets, and was unaware if Constand had consented.
No evidence or document exists to support that such an immunity agreement actually existed. In fact, the only written document regarding immunity was an article published back then in the National Enquirer.
Contrary to Cosby’s assertion that District Attorney Bruce Castor gave him full immunity from prosecution, the actual 2005 article quotes Castor as having said that the commonwealth “retains the right to reopen the case if the need arises.” The Commonwealth’s attorney, Robert Fallin, reminded the seven Supreme Court justices that such language was customary in all immunity agreements.
During the civil action, Cosby was questioned, and did not plead the fifth, regarding additional bad acts he conducted in other jurisdictions, where Castor had absolutely no control. The fact that Cosby only spoke under the belief that he would not be prosecuted, when in fact he spoke candidly about events in locations without a promise of immunity, additionally belies the defense’s argument. Time will tell whether the present justices will acknowledge the weight of these facts. Their decision could take several weeks.
Second Basis for Appeal-
Bonjean claimed the prosecution’s introduction of five witnesses to establish Cosby’s consistent nonconsensual sexual conduct unfairly tainted his character in the eyes of the jury. The judges questioned whether their testimony elicited a conviction based on a character assault, rather than the commission of a crime…. thereby rendering the trial “unfair.”
The Judges React-
What followed was word salad from the justices, splitting hairs over how similar the additional cases were and whether they contained probative value rather than a smear campaign. Justice Christine Donohue said. “I just don’t see it.” and Justice Max Baer remarked, “I tend to agree that the evidence was extremely prejudicial.”
Assistant District Attorney Adrienne Jappe, for the prosecution, argued that because “consent” was in question, prior claims that assaults without consent had taken place were needed to prove Cosby’s pattern of sequestering young women and stripping them of their defenses by administering drugs.
Giving Cosby a pass because he committed multiple bad acts only serves to enlighten society that conducting serial crimes can cause dismissal, while an individual crime would not. The additional irony is how rarely offenders who commit individual sexual assaults are brought to justice.
Pennsylvania’s law says…..
Under 225 Pa. Code § 404, (b) (2) prior bad-act witnesses can be used to prove motive, opportunity, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
The justices questioned the validity of arguing the “absence of mistake,” and seemed to be siding with the defense by asking “Where do we draw the line? How many witnesses would be too much?”
Ms. Jappe aptly responded with case histories in which testimony by multiple “prior bad-act” witnesses was admitted. The justices seemed to overlook that the additional witnesses proved Cosby’s planning, preparation, and knowledge of the crime.
Neither the trial judge, Steven O’Neill, nor the prosecutor can change the fact that the accused is a repetitive monster. Should we dismiss findings because the person is simply too vile to prosecute? That prospect is simply gag-worthy!
How bad is bad?
The prosecutor had located nineteen witnesses who had agreed to testify. Judge O’Neill told them to pick five of the eight he’d selected. The Supreme Court justices should not be micro-managing Judge O’Neill’s decision on how to balance the probative value of testimony vs. the potential for unfair prejudice, particularly because Pennsylvania’s laws make no distinction regarding the amount of such witnesses that are allowable, therefore leaving that choice to the trial judge’s discretion.
Bonjean claimed that the added testimony took up 50% of the court’s time. Jappe countered that their testimony took two days out of a ten day trial.
Convicting Cosby would have been a slam dunk if CONSENT were defined by law in PA!
Since, in the civil case, Cosby had admitted, under oath, he did not know if Constand had consented, on that basis alone, his sexual conduct would have been charged as unlawful. Instead, his case is mired in legalistic wrangling that thwarts commonsense and justice.
Bill Cosby deserves incarceration. If these justices fail to dispense justice where it’s sorely needed, they send a blatant message to society that Pennsylvania’s laws will only prosecute predators who are caught red-handed as they bludgeon their victims within an inch of their lives.
Trying cases when victims are drugged, drunk, or otherwise unconscious are particularly difficult to prosecute because the victim is unable to explain what happened to them while their brains failed to process pertinent data. Providing additional testimony to establish a pattern of behavior is an important prosecution practice to take monsters like Cosby off the street. Failing to recognize the importance of additional witnesses in these cases would be a grotesque miscarriage of justice.
The important facts each justice should recognize are the following:
There is no limit to how many bad-act witnesses a judge may allow to help prove motive, opportunity, preparation, planning, and knowledge.
It is inconceivable that a communication as important as a promise of immunity was not codified in writing, filed with the court, and cannot be produced by the defendant or the defendant’s lawyers.
A claim that a District Attorney would relinquish the commonwealth’s right to pursue the case, if additional evidence warranted their doing so, flies in the face of the norm in Pennsylvania, and is contrary to the only documentation, the National Enquirer article, that was written at the time- based on the press release issued by Cantor.
What can you do to help?
Unfortunately, judicial rules of ethics prohibit justices from case discussions with the public. Any correspondence from you would be discarded. While we can’t reach out to the justices who hold Cosby, and therefore his victims’ fates in their hands, we can make every effort to insure that Pennsylvania’s, or any state’s, victim-blaming, inappropriate laws are never repeated.
CAN has worked with legislators in Pennsylvania to codify consent in its penal code. This specific, glaring omission in Pennsylvania’s laws gives rise to the public’s gross misconceptions of what actually constitutes a sexual assault, and thrusts the possibility of conviction into the quicksand of legal-ease and archaic thought.
Write to the Pennsylvania legislators to support our efforts to #CodifyConsent in Pennsylvania’s laws so that we will never see legal wrangling again over the conviction of a serial rapist, or denial of justice to sexual assault victims.
Send your note!
Please send a note of appreciation to:
Senator Katie Muth at firstname.lastname@example.org
Representative Wendi Thomas at email@example.com.
Be sure to thank them for their support in creating the sorely needed transformational change that accurately defining consent as “Freely Given, Knowledgeable and Informed Agreement, #FGKIA,” will create in Pennsylvania’s laws and echo across the US and around the world!
As Domestic Violence Awareness Month (#DVAM) winds down, we are nowhere nearer to the solution.
In fact, just this month in Indiana, legislators passed on an opportunity to make a difference! Their Legislative Interim Study on Consent, headed by State Representative Wendy McNamara, closed down without any stated effort to bring about change despite objections from legislators on both sides of the aisle.
Consent is critical in any conduct in which one person touches another. And when the person touches the reproductive organs of another, or performs any physical contact to engage the other person sexually, they must have CONSENT. Commonsense is pretty clear that this is so.
The problem is, no state speaks definitively about what consent actually is……. leaving the police, judges, prosecutors, defense attorneys, and the public with no guidance, and only a few restricted ways to hold sexual predators accountable.
Several important codes that regulate the public’s understanding of consent, Model Penal Code, Nuremberg Code and General Data Protection Regulation, all tell us the same thing….. Consent is freely given, knowledgeable and informed agreement, #FGKIA.
COVID 19 has forced domestic violence victims to isolate with predators who prey on them, This reality has caused legislators to take emergency measures to support services that provide sanctuary to victims. But still, they overlook the fundamental cure to preventing domestic violence from happening in the first place,….. the clear and simple recognition of “consent” that will hold offenders accountable!
Defining consent makes police action mandatory in sexual abuse cases because an obvious, blatant crime is taking place. An officer who fails to take action is aiding and abetting in the commission of a crime.
Until we #CodifyConsent in our laws, abusers, attackers, predators, and rapists have the upper hand, while victims are left at their mercy and denied their 14th amendment right to equal protection under the law.
Contact your legislators! Your vote is your voice! Only vote for candidates who pledge to #CodifyConsent in our laws!
Want to help conquer sexual assault and domestic violence?
Where has Walmart’s moral reasoning gone? This outrageous child’s tee shirt is available in 19 colors, and it’s unisex sized from tiny tots to teens.
Any parent purchasing this for their child deserves to be shamed. How do they possibly intend to explain the double meaning that serves as the underlying “humor” in this message?
Use this link to rate this product. You can also use the link to send a message to Walmart management about the obvious lack of moral reasoning and character they display by profiting from promoting this misogynist messaging in children’s apparel.
On October 6th, the Legislative Interim Study Committee on Consent in Indiana, comprised of 14 Indiana legislators, and led by Representative Wendy McNamara, proved that legislators give lip-service to the problem of sexual assault, but fail to produce meaningful solutions.
In spite of protests by three legislators from both sides of the aisle, McNamara insisted on filing her committee’s report with NO support for a consent bill. She even refused to include any mention that the committee would continue to research and work toward a solution.
According to The Statehouse File.com from Franklin College, McNamara said: “I don’t think we necessarily gleaned from testimony that we need a definition as a state. I’m not prepared at this time to say we in essence recommend that we have to have a definition.”
Apparently, we need to ask Representative McNamara- “How does an obscure concept of CONSENT possibly convey an understanding of rape to the residents of Indiana? And how do you expect sexual predators to be held accountable when you, as a law maker who your constituents have entrusted with protecting them, knowingly fail to define consent in Indiana’s laws?”
In the upcoming election, voters should be deeply concerned with supporting candidates who fail to pledge to #CodifyConsent. The people of Indiana will know how their candidates stand on this issue because CAN will be tweeting every candidate over the next few weeks. And you, no matter what state or jurisdiction you live in, should do the same….. #WillYouCodifyConsent?
The Consent Awareness Network placed the need for a consent definition in Indiana right in front of the committee members’ noses.
In fact, the launch of the committee’s efforts began with a video we submitted, featuring Weinstein Survivors, Mimi Haley and Tarale Wulff, like this one. Their testimony included the fact that the jury asked for the definition for consent, and that because New York state also fails to define consent in its penal code, the judge simply replied, “Use your commonsense.”
Does McNamara actually believe that each jury should make up their own definition for consent, or should they decide the case based on the evidence presented at trial? How does making up their own definition serve society’s right for the equal protection under the law granted by the 14th Amendment of the United States?
Here’s why legislators turn a blind eye to defining consent in our laws:
Centuries of horrifically ignoring sexual sanctity are so engrained in our penal codes that legislators are tone deaf on changing the laws.
Our laws recognize that consent is freely given, knowledgeable and informed agreement #FGKIA when protecting your property, your medical decisions, your identity on the internet, and countless other things. But the need for applying that same concept to protecting a woman’s body is treated as absurd and unimportant.
Our forefathers, many of whom had horrific records of indecent sexual conduct, fashioned laws with no regard for women, and still do so even though sexual assault can affect men as well. But there are far more voting males who are covert sexual predators, then the amount of voting male victims of sexual assault. To legislators, votes matter!
It’s baffling how law makers rely on the opinions of the legal establishment to determine what harms their constituents suffer.
Behaviors are and should be crimes because of the harm they inflict on society; not the ease or difficulty to prosecute in a court of law. Law makers put more stock in what the legal establishment says about prosecution than what their constituents actually need for protection.
The Consent Awareness Network has engaged in efforts to secure appropriate “Consent” language in penal codes in several states including MA, PA, AK, UT, NY, IN, TX, SC, and more. Each legislator we spoke with is clear that consent is freely given, knowledgeable and informed agreement, #FGKIA, but in each and every state, the legislative reliance on the legal establishment is creating an impasse to securing appropriate protections for society.
Lawmakers did not have to ask permission from the legal establishment to determine what constitutes murder. We all know that the pre-meditated killing of another human being is a crime. The US Department of Justice Statistics tells us that only one third of violent crimes actually lead to an arrest. Despite the difficulty pursuing murderers, we still recognize what murder actually is. Despite the difficulty pursuing sexual predators, our laws must correctly state that consent is freely given, knowledgeable and informed agreement, and that nonconsensual sex is a crime!
Call your legislator. Demand that they #CodifyConsent in your state. If you’d like CAN’s help securing correctly defined “consent” in your penal code, contact us at info@ConsentAwareness.net.
Once our lawmakers get CONSENT right, the legal establishment will have to prosecute or defend sexual assault cases according to the law. Reliance on the legal establishment to create the law is like the tail wagging the dog! In this case, it’s a very complacent, cavalier dog that thinks society won’t recognize how complicit they are in enabling rape.
Stop the ignorant nonsense. Demand that legislators #CodifyConsent today!
Defining CONSENT in our laws is the critical key to conquering sexual assault, and the legislators of Indiana are examining the definition for this pivotal word for Indiana’s penal code….. RIGHT NOW!
Defining consent in one state, opens the doors to defining consent in every state and jurisdiction across the US and around the world, no matter where the process starts!
The late Ruth Bader Ginsburgs’s words never rang truer than today: “Nothing changes without changing our laws!” You can be part of this monumental, transformational change!
Like every other state throughout the US, Indiana currently fails to define “consent” in its penal code.
Indiana’s legislature has empanelled a legislative study committee to research and file their report on October 6th. Your letters and phone calls to members of the study committee can help this vital effort succeed.
You will find the email addresses and phone numbers below for each member, as well as a model letter to use as-is or modify to your liking.
Viewed by each legislator:
CAN’s video, “Defining Consent in Indiana,” which contains comments from Weinstein Survivors Mimi Haley and Tarale Wulff, launched Indiana’s interim study on September 15th.
The correct definition for “consent” that CAN has introduced is endorsed and supported by Model Penal Code, Nuremberg Code, and General Data Protection Regulation:
Consent is Freely Given, Knowledgeable and Informed Agreement. #FGKIA.
Failing to include the actual, and appropriate definition for consent in penal codes enables rape mentality and puts every man, woman and child at risk for sexual assault and rape. In the Weinstein and Cosby cases, each jury asked for the definition. Each judge answered- “Use your commonsense.” This same discussion takes place in practically every rape trial.
All victims are entitled to equal justice under our laws. Only when we #CodifyConsent can we establish a consistent definition for judges to convey to each jury in order to hold sexual predators accountable and secure equal justice for all. Defining “consent” makes unlawful sexual conduct crystal clear to each and every member of society.
Please use the list that follows to write and/or call today, and bcc Info@ConsentAwareness.net so that we can track the volume of responses on this important issue.
If you would like for CAN to help you begin the process of defining consent in your jurisdiction, write to us at info@ConsentAwareness.net.
Dear Senator _____ or Representative ______:
Thank you for your efforts, as a member of Indiana’s Legislative Interim Study on Consent, to #CodifyConsent in Indiana’s penal code.
Defining consent as the freely given, knowledgeable and informed agreement that it is, will not only protect generations of men, women, and children, but will also serve as a blueprint for appropriate sexual assault laws in additional states and jurisdictions.
No matter how the offender conducts a sexual assault, the victim has a right to equal justice under the law. Only by providing a consistent and correct definition for consent can justice be meted out with an equal hand and can society clearly understand what constitutes a sexual assault.
I look forward to your support for a bill, recommended by your committee, to define consent in the penal code of Indiana.
List of Legislative Study Committee Members and Their Contact Information
On September 15th, Indiana Representative Wendy McNamara headed a legislative study on CONSENT. One of the presenters, Samantha McCoy from RISE spoke about a case in which the victim was denied justice because she waited a year to take action. The officer told her “The most important piece to reporting is the timeline.”
The reporting timeline affects cases even when the victim reports within the statute of limitations.
Denial of justice is common
In the Harvey Weinstein case, his defense introduced testimony from an expert witness on how memory degrades over time. She ignored the fact that in rape, or other traumatic contact, memories are indelibly seared into the mind. This phenomenon explains why Dr. Christine Blasey Ford could recall details of Brett Kavanaugh’s attack but he, himself, remembered nothing. In a drunken stupor, his behavior, which contained no trauma to him, failed to register in his memory.
After suffering the defiling trauma of rape, many victims simply want to avoid all thought about the incident to restore “normal.” It takes hard work and effort to come to terms with what happened. Overcoming the onslaught to one’s self esteem, destruction of trust, and all the physical and emotional wounds that were inflicted, takes an effort of huge magnitude.
Often, when victims feel ready to pursue justice, our system of justice denies access because the aggrieved is considered to have degraded memory. Here’s the solution…..
Write it down and send a LETTER to SELF!
No matter whether you feel ready or willing to step forward, those feelings can change over time. Preserve your right to be taken seriously by emailing, to yourself, a detailed account of the events. The closer to the date of the actual incident you do so, the greater the acknowledgement you will gain down the road from those in authority. Be sure you hang onto this email by filing it permanently in your system.
Trauma scatters your memory. The neuropeptides and hormones that protect your psyche and your body can veil factual awareness from entering your brain in a linear way. One of the reasons the reports of rape victims are treated as “suspect” is because their concepts fail to initially take a linear track. If, however, you write down your account, for your own eyes, you will go through the linear thought process that enables you to assemble the jumbled pieces.
Whether you ultimately decide to go forward with reporting or not, the ability to package your trauma into a document you can file and to revisit as you desire, will help you stop struggling with the memories. It allows you to literally put those memories on the shelf and move past them.
Join us when we discuss the laws on CONSENT with Weinstein survivors, Jessica Mann and Mimi Haley, Assembly Member Rebecca Seawright, and President of the NY State Trial Lawyers Association, Michele Mirman on Thursday, July 16th, at 7 PM EDT.
Abolition ended slavery but failed to end the tragedy of bigotry against an entire portion of the world population. The ironic concept that because of the color of a person’s skin, they are “less than” and therefore, not entitled to dignity and respect, remains a hideous part of our society today, in the 21st century. Continue reading CAN Stands with Black Lives Matter→