Can our first “CAN” College Chapter, Consent Awareness Network, be in the offing at Wagner College?
Yesterday, through the efforts of Wagner College Professor Patricia Moynagh, I had the honor of speaking to a group of intelligent, enthusiastic, Wagner students and faculty. Aided by my Swiss cheese umbrella, I explained the failure of a justice system fraught with legal loopholes, and why society needs our legislators to #CodifyConsent.
Their questions ran the gamut from “How does drunkenness impact fault?” to “Does tacit consent count: can consent be inferred without it being vocalized?”
Wagner is an educational gem perched at the highest geographic level of NY City. Its lofty location delivers an uplifting view of New York Harbor, the magnificent skyline of Manhattan, and the Statue of Liberty.
Lady Liberty provides a noble reminder of the freedoms we all deserve here in the US, including freedom from harm and justice for all. What a magnificent backdrop from which to launch a transformational change to protect every student’s sexual sanctity and provide justice for survivors!
Here’s how you can make a difference…..
If you are a student, faculty member, part of administration, or have another educational affiliation at any school, contact me to start a CAN chapter. Your mission could include fighting for appropriate sexual assault laws, appropriate regulations for your school’s Code of Conduct, and building a base of advocates to assist sexual assault victims so they do not have to navigate the system on their own.
At last! Rapist Harvey Weinstein has been handcuffed and remanded into custody. He will no longer hobble down the steps of 100 Centre Street, pandering for sympathy, as he departs the courtroom. He’s in custody awaiting sentencing on March 11th.
Although his attorneys are likely to attempt to secure his release pending appeal, they are unlikely to prevail.
Will Weinstein’s conviction change anything?
His New York based attorney, Arthur Aidala, made several important statements to New York One reporter, Dean Meminger, just steps from the courthouse after the verdict. “If his name was Harvey Jones, he would not have been charged.”
Unfortunately, Aidala is absolutely correct… but not for the reasons he suspects…..
This case received tremendous attention by the press because of Weinstein’s notoriety and because his victims were celebrities. Far from his treatment being unfair because he was singled out, it shows the failure of the system to deal with sexual assault when the victims lack private attorneys like Gloria Allred to represent their interests and are “unknowns” with no press reach or clout.
Aidala also commented that Weinstein reacted, “I didn’t force anyone. I didn’t have to force anyone,” as if “force”is the only weapon in a rapist’s arsenal. Aidala needs a lesson on “consent” and needs to grasp that “consent” is FREELY GIVEN, KNOWLEDGEABLE AND INFORMED AGREEMENT. #FGKIA!
Force, coercion and deception cannot be used to influence agreement in sexual conduct. Weinstein was not only convicted of forcible rape, but also of third degree rape which, in New York, does not depend on “force.” The “absence of consent” results when a sexual predator uses the threat of harm, including destruction of someone’s career, to influence their agreement.
Although Weinstein’s defense team argued that the victims continued their relationships with him after the events in question, they failed to recognize that Weinstein’s control over their careers motivated their continued involvement with him.
Gloria Allred spoke out
Allred addressed reporters subsequent to the verdict. Her client list of “silence breakers,” women who came forward with complaints against Weinstein, includes Mimi Hailey, the victim of Criminal Sexual Assault in this case.
Allred applauded the women who “sacrificed their privacy in the interest of justice,” and called them “role models in courage.”
Allred could make a tremendous contribution to society by recognizing that most victims could only dream of enlisting her aid. There will be no grand movements like #MeToo to focus on their individual struggles. Her greatest accomplishment could be helping to define the meaning of consent in our laws because the masses need to rely on the justice system to do the right thing. Without the meaning of consent defined by law, their dream of justice is a horrific and demoralizing nightmare.
The news coverage on the Weinstein case fails to acknowledge the importance of defining consent in our laws. Society desperately needs this information! Doing so is the critical key to conquering sexual assault. If the Weinstein case has shown us anything, it is how poorly CONSENT is understood by society and our laws. We need this to change!!
Judge James Burke charged Harvey Weinstein’s jury today.
Shortly after deliberations began, the jurors sent a number of questions to the judge. Their list included, “What’s the legal definition for consent?”
The Cosby jurors asked the same question of Judge Steven O’Neill. He responded, “You’re reasonable people; use your common sense.”
So what did Burke say?
……………………. “Use your common sense,”
Because neither NY nor PA define consent in their laws, the judges’ responses were typical. And Weinstein’s lead attorney, Donna Rotunno, didn’t need to be a rocket scientist to figure out that this question was coming.
She attempted a preemptive strike in her summation. She told the jury to “use their common sense,” to persuade them that doing so would be cause for acquittal when and if Judge Burke responded the same way.
The Consent Awareness Network (CAN) is fighting to define consent in our laws so that a clear definition guides jurors, guides society’s behavior, and holds sexual predators accountable. Leaving “consent” up to the “common sense” of sexual predators will never conquer sexual assault!
We got lucky in the Cosby case!
The foreperson for the jury, Cheryl Carmel, was a cyber security expert. She was very familiar with the definition for consent in General Data Protection Regulation (GDPR), which is international law and defines consent.
The GDPR definition is the same as the definition I introduced in my TEDx Talk: “Freely Given, Knowledgeable and Informed Agreement, #FGKIA.” Coincidentally, GDPR went into effect in May of 2018. My TEDx Talk was presented in May of 2018.
We need to pray that Weinstein’s jury has researched the meaning of consent.
They could find the consent provision in Model Penal Code, or the definitions in Nuremberg Code, GDPR, and my TEDx Talk. Without the actual definition for consent, a jury’s ability to convict is seriously hampered.
Forcing or coercing a victim is not consent because consent must be freely given, knowledgeable and informed. The use of force, threat, (such as negatively impacting a person’s career or livelihood), and trickery, are absolutely not consent.
Without clearly stating the definition for consent in our laws, locking up sexual predators is a crap-shoot. Some juries will be aware. Some will not. Let’s hope this jury is aware.
But don’t despair if they’re not aware……
I’m crossing every finger and toe…. and sending countless prayers up to the heavens….. that Weinstein gets convicted. But without a clear definition for consent and defense council insisting that he had consent…. he may not. And we need to be prepared.
In NY, coercion is a crime in and of itself. If this case ends with a hung jury, the prosecutor’s next attempt should additionally indict Weinstein for coercion. Coercion for sexual contact is a Class E Felony. and it is specific that coercion includes making someone fearful about their career or income. The sentence for Class E Felonies is 2 to 5 years. If there are multiple victims, the sentences do not have to run concurrently. The statute of limitations is 5 years. However, if he is acquitted, double jeopardy would apply unless new complainants step forward with cases that occurred within the past five years.
The unthinkable is likely
Unfortunately, even though I’m totally convinced that Weinstein did everything he was accused of, I don’t think the case presented by the ADA, without a clear definition for consent, is strong enough to convict him. For that reason, I’m hoping that at least there will be a hung jury, which would give the ADA an opportunity to enlighten the next jury about coercion and acquiescence and bring coercion charges against him.
Important considerations for the jury
Some of the current Weinstein jurors could understand consent while others may not. Some could grasp that a victim who suffered the grotesque humiliation of defilement would not want to add the added loss of their career to their suffering by going public or reporting the incident to the police. After the fact, coming forward against a man who their industry revered, and risk being blackballed, would be an imposing obstacle.
Weinstein picked most of his victims because of their career interests. He knew how much they could lose by accusing him of his hideous deeds. They might never have worked in their craft again. They would not only have suffered the harm of defilement, but the exponential loss of their dreams.
Society and sexual assault victims deserve better!
A not guilty verdict would not be a testament to his innocence. Rather, it would be a testament to society’s confusion about consent. If he’s convicted, it’s because at least this jury got it right. But what about the next one?
Just before 1 PM today, Prosecutor Joan Illuzzi had the last word on locking up accused rapist and sexual predator, Harvey Weinstein. Her three hour summation was an effort to focus the jury on the important facts. She painted a picture of Weinstein as a sexual predator, not a victim of the #MeToo movement, as Donna Rotunno, his lead attorney, had claimed.
Rotunno’s summation, which took place Thursday, accused the prosecutor of creating a fictional universe in which women were stripped of “common sense, autonomy and responsibility.” She totally ignored the impacts of coercion and force.
Ironically, as my “court buddy” Adjunct Law Professor Jim Petzke of John Jay College of Criminal Justice pointed out, her summation plagiarized Atticus Finch’s closing from “To Kill a Mockingbird,” while she reamed Illuzzi for creating “theater.”
As Rotunno marched down the corridor toward the courtroom this morning, the press strained to get her comments.
“How do you think it went?” one shouted.
It went great,” she responded.
“Yeah, great if you’re Atticus Finch,” I quipped.
In the press conference that followed today’s hearing, Rotunno took another run at casting Weinstein’s sexual conduct as “consensual.” She based her entire argument on what happened after, not during, his sexual contact.
Previously, Illuzzi had produced compelling testimony from highly regarded forensic psychologist Dr. Barbara Zif. She pointed out common rape myths about how people behave when they’ve been raped. She included that it was common for victims to continue relationships with the accused. Let’s hope the jury was listening!
The jury will receive their marching orders from Judge James Burke on Tuesday morning after the long, holiday weekend. For sure, the jury will ask what consent means. His response could make or break this case.
Illuzzi mentioned Weinstein’s use of “trickery” in her closing. She claimed the victims were tricked by “luring.” Luring is neither a fraud in the factum nor a fraud in the inducement. It’s not a “fraud in fact” that would make sexual contact a crime. Luring his victims got him, or them, through the door. Coercing vitiated their consent.
Coercion is a crime. And Weinstein continuously used coercion to induce sexual contact. Coercion is the threat of harm. In fact, threatening someone regarding their career is considered a crime in New York, even without sexual contact. It’s a class A misdemeanor.
Coercing someone for sex is a Class E Felony punishable by 2-5 years of incarceration. Yet the prosecutor did not identify coercion as the weapon that Weinstein used to demand sex. Nor did she prosecute for the crime of 2nd degree coercion.
Friday, 2/7/2020- In an effort to impugn the memories of terror and outrageous attack, sworn to by Harvey Weinstein’s victims, his defense trotted out a highly established expert on memory and cognitive perception. Distinguished UC Irvine Professor and Psychologist Elizabeth Loftus, testified to how memory can become “distorted.”
Even before her testimony began, a battle ensued between the defense and prosecution without the presence of the jury. Judge James Burke set ground rules for the testimony he’d allow. The concept of “gist memory” and specifics of memory related directly to the sexual assault of victims in this case were ruled off limits.
Loftus supplied the typical perceptions of memory fading with time. The prosecution reminded the jury that Loftus was not a medical doctor. In fact, when shown a diagram of brain sectors, she declined knowledge of how memory was stored, and the diagram was removed.
Countless times, she used the word “can,” not “shall,” or “will,” to describe possible impacts of Post Event Information (PEI) . She could not supply data on the likelihood of memory becoming tainted by any specific circumstance except the use of Valium. Her statement drew Assistant District Attorney Joan Illuzzi-Osborn’s intense ire.
While “expert witness” testimony was allowed in order to provide overall knowledge of how memory works, inclusion of “Valium” seemed coached and specific to a victim who had testified. Loftus acknowledged she was aware of the use of Valium by one of the victims and that she shaped her remark because of that knowledge. She also readily admitted she was being paid $600 per hour for her expert testimony.
When Loftus referred to military testing on soldiers who were being trained to endure the harshness of captivity, and how the researchers conducting the experiment were able to distort their memories, Illuzi-Osborn was able to secure her admission that these subjects knew their lives and their safety were not actually in eminent danger. She pointed to the difference between real trauma and staged events in which the actual danger did not exist.
Ultimately, Loftus had to admit that core memory for trauma could be stronger than for other types of non-traumatic events.
If weighed on the scales of courtroom justice, it seemed that the prosecution made the stronger argument.
I was honored to be a speaker at this year’s Women’s March NYC, and was overwhelmed by the audience support for the Consent Accountability Rhyme.
Anyone, at any age, can learn and understand what “consent” means. This poem makes the definition for consent crystal clear. It is part of the Your Consent for Kids YouTube cartoon that every parent should watch with their children to grow a Consent Aware generation! As well, sex education classes can include it in their programs. It’s free!
We’ve had Generation X, Y and Z. Let’s create Generation “Consent Aware” for our developing kids!
Consent Accountability Rhyme
The words, “You Can,” mean “I consent.”
You say so with your voice.
But it’s not consent when you’re forced, or tricked,
January 6, 2020- In open court, Harvey Weinstein trudged along slowly aided by strong arms at each side while he leaned on his brushed aluminum walker. His bearing seemed pathetically staged to curry sympathy from Judge James B. Burke, and on-lookers. His countenance, weary and beaten, bore no resemblance to someone who, just months ago, controlled the careers of Hollywood stars and the fate of multi-million dollar productions.
Across the street from the Manhattan courthouse at 100 Centre Street, eight beautiful, brave women, who identified themselves as “silence breakers,” gathered in support of the effort to bring Weinstein to justice; Ellen Barkin, Rosanna Arquette, Louise Godbold, Dominque Huett, Sara Ann Masse, Rose McGowan, Lauren Sivan, and Paula Williams.
Articulately, and energetically, they presented their personal statements to the clamoring media. Several times, the presentation had to be stopped to provide breathing room as the reporters converged on top of each other to get their best view. At one point, I found myself swallowed into the melee with two large, eager, camera wielding press vying for my space- creating a moment’s scary sense of being besieged by paparazzi.
Rose McGowan cleared all doubt about why survivors need to speak out….
She remarked: “Living in silence is a death threat to your soul!”
Also today, Los Angeles District Attorney Jackie Lacey announced that Weinstein is being charged with four counts of rape and sexual battery. No matter the result of the New York case, he’ll face further legal consequences for his defiling actions.
Predatory Sexual Assault in New York….
The crimes Weinstein’s charged with rely on the fact that he engaged in sexual conduct without securing consent. Yet, like in most states across the US, New York’s laws fail to define consent. Instead, they rely on the bizarre notion that defining “without consent” is the same as defining “consent.” Clearly, it is not. And when applying a “without consent” litmus test to a crime, only those specific behaviors that the state identifies as “without consent” matter.
The application of law is based on the ancient Roman concept- Nulla pena sine legue – which means, if the law does not specifically state a prohibition, the behavior is not a crime.
The methods a person can use to engage in sex crimes are infinite. Selecting a handful of those methods as “prohibited” behavior fails to protect society. Society can only be protected if the concept of “consent” is clear in order for all nonconsensual sex to be recognized as criminal behavior.
Why do we have this bizarre way to address sexual assault?
Simply put, women, the principle targets of sexual assault, have been considered “less than” throughout the ages. And the gravity of causing them defilement by devious, coercive or violent actions has been seen as trivial by our lawmakers, who, for the most part, have been men.
Rape mentality is embed in our justice system which, for generations, has decidedly determined that only certain ways of conducting sexual assault, not every way of conducting sexual assault, are punishable.
Commonsense dictates that if someone does not consent, no one has the right to impose themselves; just like failure to secure consent results in criminal charges when the offender takes a victim’s property. But as our laws exist, consent is not actually the benchmark to determine whether or not sexual conduct is legal. Instead, a narrowly stated concept of certain prohibited “without consent” behaviors determines if a crime took place. In Weinstein’s case, although the statutes say that he should have elicited consent from his targets, they fail to define what consent actually is.
Because only conducting sexual contact under certain circumstances of non-consent makes unsecured consent a crime in New York, it remains unclear whether the prosecutor or the defense will make the stronger argument under our absurdly antiquated system.
Overhauling sexual assault laws
If the defense prevails, it proves one and only one thing….. not that Harvey Weinstein is anything but the immoral scumbag we recognize him to be, and that he violated scores of women, but that our laws have failed to protect us against scumbags for centuries, enabling society to develop a callous rape mentality. And our lawmakers need to protect us and our future generations from defiling sexual conduct.
The right to engage in sexual contact without consent must stop. And it will only stop when our laws state exactly what consent is – free given, knowledgeable, and informed agreement, #FGKIA, just like we recognize it in every code and law dealing with any other “nonsexual” conduct.
Insist that your lawmakers #CodifyConsent in order to protect the residents of your state or jurisdiction.
“This is the primer for defining consent!” Hon. Sally Siegrist, Indiana State Representative.
Want an easy way to talk with your kids about “consent?” This engaging cartoon explains consent in terms every child can readily understand. Don’t worry, it’s not about sex! It’s about the simple things kids encounter everyday. It’s perfect for kids aged 6 through 12.
Most readers have heard me speak about the “Swiss cheese umbrella” of sex crime laws. Today, NY Governor Andrew Cuomo announced his intent to plug up the legal loophole in “voluntary vs. involuntary” drinking or drugs in sex crimes. He did so at the urging of Manhattan District Attorney Cy Vance Jr. who not only promoted change to this particular loophole, but also admitted that our entire system needs an overhaul. But in his final thoughts, he’s relegated that overhaul to the back burner. Continue reading Tiny steps don’t fix huge gaps in NY’s sex crime laws!→
Burdened by helplessness, hopelessness and defilement, scores of #MeToo sufferers exposed offenders who destroyed their lives. Their efforts were aimed at restoring their self-worth and protecting others. But they were hit with the ultimate wallop…… an offender who manipulates the justice system to drown them in a whirlpool of defamation and cyber-stalking charges, destroying the little bit of equilibrium they have left. Continue reading How to Prevent Your #MeToo Truth from Drowning You→
It’s little wonder that Alaska State Representative Geran Tarr is focused on defining CONSENT for her state’s Penal Code. Alaska has the highest ratio of rape from coast to coast; close to 3 times the national average!
Codifying CONSENT into law is the critical key to conquering sexual assault! Yet no US state or territory actually defines the noun, CONSENT in its laws. How can we know what the verb “to consent” means without knowing what the noun, “consent,” actually means?
Joyce Short powerfully enlightened the ATIXA audience by demonstrating that penal code on sexual assault is a “Swiss cheese umbrella full of legal loopholes.” ATIXA is the Association for Title IX Administrators from schools around the US. Ms. Short addressed them at their national conference on October 1 in Philadelphia. Attendees included Title IX Administrators, attorneys, and creators of products and services geared toward protecting students. Continue reading ConsentAwareness.net Defines #Consent for #ATIXA!→
The American Bar Association (ABA) recently attempted to provide recommended wording for “consent” in order to get the states and territories across the US on the same page. You’d think I’d be jumping for joy, but unfortunately, I’m not. And the reason is not because their attempt failed, but because their attempt so woefully missed the mark!
September 18, NY- Flanked by a jubilant Mira Sorvino and Julianne Moore of #TimesUp, NY Governor Andrew Cuomo signed extensions to the statute of limitations for reporting rape crimes throughout NY State. First degree rape victims have no statute of limitations. Second and third degree rape victims will have 20 and 10 years respectively.
Mira Sorvino made a heartfelt statement thanking the Governor but overlooking the most obvious and transformative change that’s still needed to actually conquer sexual assault….. enacting the correct definition for #Consent into the laws of New York: “Freely Given, Knowledgeable and Informed Agreement, #FGKIA!” Continue reading Cuomo & #TimesUp Extend Limitations on Rape Cases→