On July 22, 2023, The NY Times published an in-depth article, What People Misunderstand about Rape, by Jen Percy, addressing tonic immobility. She had interviewed CAN’s CEO, Joyce Short, in her research, who had written a post on this issue in 2014, and included a brief statement regarding her individual case. Ms. Percy’s insight laid bare the flagrant and direct conflict between the science of the victim’s response versus how our penal laws treat victims.
Joyce’s “freeze” reaction in her personal case was aligned with so many victims who were terrorized; fearing bodily injury or even death during the attack.
Penal laws are blind to the automatic and subconscious responses a victim’s brain will make in order to preserve their life. Their freezing and fawning reactions are treated by investigators as “acquiescing,” a reasoned, non-automatic response. While acquiescing is a conscious decision, freezing and fawning result from surges of the neuropeptides and hormones that terror triggers in the brain. But even acquiescing, agreeing under duress, does not constitute consent.
Consent is a form of agreement that must be freely given, not violently forced or coerced, knowledgeable and informed, not deceived or defrauded, and must not result from exploiting incapacity.
Involuntary, reflexive reactions to inescapable danger produce self-blame in victims who question their own inability to fight back or why they stopped resisting.
Both freezing and fawning directly result from the brain snapping into a protective mode by amping up the hormones and neuropeptides that control bodily and brain functions immediately when the amygdala senses an extreme threat.
In tonic immobility, the brain causes motor inhibition, a state of paralysis.
“Fawning” is the brain’s way of “going along to get along” when facing death or intense terror.
While Joyce stated that she did not feel paralyzed, she knew that resisting was putting her life at great risk. Her attacker pushed his forearm into her neck cutting off her airway, causing her freeze response.
Many states and jurisdictions have penal laws that base “consent” on the words or actions of the victim at the time they were terrorized. This “Yes means Yes” concept is misguided, blaming victims for their reactions which could be automatic, involuntary responses, assent, or acquiescence…. none of which are consent.
Archaic victim blaming has been embedded in penal laws for generations and determines how juries decide whether or not the complainant consented. Instead of focusing on causation – what did the accused do to secure the victim’s compliance – their rulings are based on what victims say and do under terrorizing conditions.
How can we change this grotesque injustice?
Ms. Percy’s article goes a long way to explain the phenomenon of freezing, but society needs to take the next step……..
By correctly defining consent in our laws as “freely given, knowledgeable and informed agreement, by a person with the capacity to reason.” #FGKIA, we turn our human right of consent into a powerful civil right backed by law. This definition will protect against rape, all sex crimes, and disrupt victim-blaming and shaming.
Another trending trope, “Enthusiastic Yes,” strips people of their First Amendment right of free speech, right in the privacy of their bedrooms.
CAN not only fights for legislative changes, but also addresses the harm caused by misinformed “consent educators” who sell “consent” education materials and profit from books, speeches, and trainings that promote “Yes Means Yes,’’ “No Means No,” and “Enthusiastic Yes.”
Malicious influence by the offender, not the reactions of their victims, should determine whether or not consent took place. We need our laws to get this right.
Here are four candidates who are fighting to define consent in our laws:
Defining consent will turn our unenumerated human right of consent into an enumerated civil right backed by law! Yet NO STATE actually defines the noun CONSENT in our laws.
Society needs legislators who will #CodifyConsent in order to defeat antiquated, blame-the-victim concepts. By doing so, they will help protect our legal right to abortion and conquer sexual assault, sex trafficking, and domestic violence. Defining consent is the fuel to ignite meaningful change!
The Consent Awareness Network (CAN) will amplify the outreach of every candidate who signs this pledge. You simply need to provide your name and your state in the comment section below:
“If elected, I pledge to define CONSENT clearly in our laws so that every prosecutor, judge, juror, defense counsel, would-be predator, and individual in my jurisdiction, knows that CONSENT is a freely given, knowledgeable and informed agreement, by a person with the capacity to reason!”
For all voters….
Share this pledge with every candidate for office to raise awareness and make an educated decision about your vote!
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!
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
Just in time for Sexual Violence Prevention Month!
I had the recent pleasure of interviewing with Tracy Malone, the creator of Narcissist Abuse Support which provides meaningful information on recovery, as well as support, for hundreds of abuse sufferers.
Our discussion ran the gamut between the actual definition for “consent” to the concrete steps people can take to make the world a safer place.
Today’s post is written by Nicole Perry, CAN’s latest Consent Outreach Ambassador. Nicole is based in South Florida and her unique, professional background in the dance world ties right in with our mission to clearly define consent for society and in penal codes across the US and around the world!
Nicole is an intimacy director/choreographer, dance choreographer, and movement director. She is also a director, actor, dancer, and the founder of Momentum Stage, a non-profit organization providing resources for performing artists. Her credits are listed below her post.
Here’s what she has to say…….
I believe this time of physical distancing is going to make us more aware of contact and proximity when we are able to reenter the “real world.” Because of that, being able to ask for, as well as affirm or deny consent, is going to be a really applicable skill, in a different way than before.
In the world of performing arts, where I work, consent has only recently become a topic of consideration. I am an Intimacy Director/Choreographer. I create the movement for intimate moments on stage, many of which require physical contact.
The term used for my job was created in 2004 by Tonia Sina, the founder of Intimacy Directors International. My role centers around consent. The theatre, film, and opera worlds have been adding this role to their creative teams since about 2017. Even though the #MeToo Movement thrust the need for consent into the spotlight, the concert dance world is still behind. But, as last year’s scandal at the New York City Ballet shows us, it really needs to catch up.
Agreeing under pressure
Being a performer conditions us to say “yes”, even if we don’t really mean it. The myth of the Hard to Work with Actor, conveys that when the performer does not say “yes” to everything asked of them, they’ll be labelled “hard to work with,” “difficult,” or “a diva,” and will find it very challenging to get work in the future. “Yes, and…” is encouraged as the only response when conducting improv work.
In dance, a teacher models the combination, and students work to look as much like the teacher as possible. Dance pedagogy, while being very teacher-centric and allowing only one voice of power in the room, is also very touch-centric. It allows the person in power to have “at will” access to the bodies of those not in power. This creates quite the paradox:
While dancers are working to have complete control over their bodies, they are also expected to immediately surrender that control to the teacher or choreographer.
The power-differential effect
Beyond a dancer’s conditioning to say “yes”, we are also conditioned to see and respect power. The performing arts are incredibly hierarchical. The director is in charge of the actors, but answers to an artistic director and/or producers. Among the actors there are leads as well as supporting, and ensemble company members. In dance, the choreographer is in charge of the piece, but the artistic director is in charge of the company.
There are the corps or company members, but there are also soloists who rank higher up the ladder because of their opportunities, physical capabilities, and often – their paychecks. These power dynamics are part of a performer’s culture from the very first show they are in; which for many is at a very young age. All of this reinforces “yes” as the only option.
In my work, as an Intimacy Director/Choreographer, I tell everyone that the work is based on CONSENT, and “consent” is truly only “consent” if “no” is a valid answer. I assure the directors that I can make a story work and fit their artistic vision, while still respecting a performer’s boundaries. I try to ask open-ended questions to my performers, with no implied “yes,” such as, “Does it work for you if so-and-so puts her hand in such-and-such place?” or, “How do you feel about so-and-so placing her hand in such-and-such place?” in order to encourage them to answer honestly.
We are very pleased to be partnering with CAN to promote Consent Culture in the Performing Arts.
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!
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?→
I was happy to be a part of history this morning, if only to “stand and wait” at the sentencing for Harvey Weinstein. Even the few “public seats” were given to the press. Only a handful of onlookers without press passes were allowed into the crowded courtroom.
The first person who the police cut off had been waiting since 6:10 AM for proceedings that were scheduled to start at 9:30. I’d arrived around 7:20 and was the 9th person on the waiting line. But as the group stood hopefully, even Continue reading Today- Harvey’s Words Revealed It ALL!→
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,
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!