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assault is welcome, to effect meaningful change, legislators can’t simply regurgitate flawed language that supports outdated myths!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.
My TEDx Talk “When YES Means NO – The Truth about Consent” clearly explains the distinction between all three types of agreement and why CONSENT, not assent or acquiescence, must take place in sexual contact.
My book, “Your Consent – The Key to Conquering Sexual Assault,” provides greater depth on the issues.
Nulla Poena Sin Lege
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 deceive
- 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.
If you’d like help explaining consent to your kids, watch our cartoon, “Your Consent for Kids.” It’s totally G-rated!
Consent is not rocket-science folks! It’s really simple to understand! And we need our legislators to protect us from sexual assault by getting it right!
How can you help?
Contact the bill’s authors and co-authors by phone or email. If by phone, you can simply leave a message. If by email, please provide us with a copy by cc or bcc to firstname.lastname@example.org.
- Rep. Geran Tarr- Rep.Geran.Tarr@akleg.gov – 907-465-3424
- Legislative Director Michelle Hale- MichelleHale907@gmail.com
- Rep. Sharon Negele- Write or call her Legislative Asst: Lewis Ostermeyer at Lewis.Ostermeyer@iga.in.gov – 317-232-9816
- Rep. Donna Schaibley- Donna.Schaibley@iga.in.gov – 800-382-9841
- Rep. Sue Errington- Sue.Errington@iga.in.gov
- Rep. Angela Romero- AngelaRomero@le.utah.gov – 801-722-4972
- 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!
Thank you in advance for your generosity!
Please use this PayPal Link.