Today is a very special day. Today, we wear the color teal because it’s the day we devote to taking action to prevent sexual assault. And even though we’ve all been put on pause, there is still much we can do to bring the scourge of sexual assault to its knees!
By his refusal to wear a mask, Trump is flaunting morality. If wearing a mask were required by law, he’d have to comply. Instead he can flaunt moral reasoning and science to maintain his outward appearance because, let’s face it…. the only reason he’s not wearing a mask is because he doesn’t like how he’d look. To Trump, personal vanity trumps concern for his fellow man.
A true leader would understand the moral imperative behind his wearing that mask, not only to protect those around him, but to set an example for the world.
When you insist that your children wear a mask, and they say, “But the President doesn’t wear one, why should I?” there is only one answer you can give them; “Because he just doesn’t give a damn about who he harms. We do.”
Trump and Consent
Trump’s example reveals why we so desperately need to #CodifyConsent in our laws. There are people who walk among us that will only abide by decency and morality when laws establish accountability. They will skirt around penal codes that fail to cast a wide and incontrovertible net. They will rape, assault, and even murder if they are not reigned-in by established law.
For many people- Sexual Assault Awareness Month (SAAM) begins today. But for those who have been sexually assaulted, #SAAM is an everyday occurrence. While we all find ways to put the past behind us, and make the most of our lives, the defilement of rape is character changing. It lives within us forever.
Many of us will soon be thanking God for our ability to check into a hospital. We’ll be counting on the help of courageous, medical front-liners, who put themselves at risk to heal us from COVID-19.
As we approach the reception desk for intake, we won’t give a second thought to signing the CONSENT form that hospitals require. We’ll happily jot down our signature and scribble our initials where required. Some of us won’t even bother reading the form. Even less will contemplate the horrific travesty and social injustice Continue reading What can COVID-19 teach us about CONSENT?→
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.
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,
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→
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!→
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→
Per today’s NY Times article…It was unusually thoughtful for the judge to give Epstein’s victims the opportunity to voice their truth, however, doing so is nothing like the opportunity to face the horrible man who defiled them. But at least, they were able to publicly voice their pain.
In the US, states often attempt to define the word “consent” by what it’s not instead of what it is. And our system of justice ironically changes “consent” depending on what you’re consenting to.
Regardless what antiquated, inaccurate penal code tells you, whether consent is applied to cyber security, theft, medical treatment, research experiments, sexual assault, etc., consent is always the same….. #FGKIA, Freely Given, Knowledgeable and Informed Agreement.