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.
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!
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!
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?→
Friday- 3/20- According to the Associated Press- Toledo plastic surgeon, Manish Gupta, who also practiced in Michigan, was indicted for sex trafficking 20 female victims by force, fraud or coercion, and one count of illegally distributing a controlled substance. His case made front page news with the News-Herald, the Detroit Free Press, and the Sentinel Tribune. And 24News WNWO covered the story.
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?
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,
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→
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→
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.
Just like postal carriers delivering important mail, neither gusty wind nor heavy rain deterred our staunch “Consent Crusaders” from descending on the Pennsylvania statehouse this past Monday. I was joined by Nina Lucas, our PA Consent Awareness Outreach Ambassador, and Cheryl Carmel, Foreperson for the Bill Cosby jury. We addressed a bipartisan group of five representatives – several of whom were surprised to learn that consent is not defined in their penal code. In attendance were State Representative Wendi Thomas, State Representative Joe Emrick, State Senator Katie Muth and her Legislative Director Sonia Kikeri, Legislative Director David Kozak representing State Senator Wayne Langerholc, and State Representive Joe Ciresi. Each attendee received a copy of Your Consent – The Key to Conquering Sexual Assault and information specifically geared toward the issues in Pennsylvania.
Cheryl Carmel explained that the jurors asked Judge Steven O’Neill what the word “consent” meant in law and they were surprised that no specific definition had been codified into Pennsylvania’s statutes. They were told that as “reasonable people” they needed to use their best judgement, and they did. As the Foreperson, Carmel was tasked with pronouncing Cosby, “Guilty, Guilty, Guilty,” on all three counts.
Rep. Wendi Thomas had begun some of the heavy lifting to create a bill by reaching out to a lawyer to lend a hand. She recommended finding a way to insert a definition in existing law. We’re looking forward to seeing the results of her efforts.
What can you do to help?
I know I sound like a broken record, but the more people who watch my TEDx Talk and read Your Consent– the better informed you and society will be! Please watch, read and spread the word!
Call your legislators and demand change.
If you’d like to be an Outreach Ambassador in your state or territory, reach out to me at Info@ConsentAwareness.Net.
Watch #SeedOfDoubt on ABC’s 20/20 tomorrow night, 10/9c, to see yet another way the laws of Texas denies justice to its residents!
Be sure to watch this compelling story, and contact your legislators to demand that “fraud” be an element of sexual assault in your state!
20/20’s episode shows how a young woman who came to life as the product of artificial insemination, believed her father was donor #106, and they enjoyed a close father/daughter bond….. except….he wasn’t really her father.
Consent is the critical key that should separate lawful contact with a victim’s reproductive organs from unlawful contact. Yet in Texas, sexual assault law does not protect against a fertility doctor swapping sperm to implant his patient…. a decidedly vicious sexual assault by fraud.
Consent is not simply agreement.
Consent is freely given, knowledgeable and informed agreement, #FGKIA.
Unless and until Texas Penal Code applies consent appropriately and states that all conduct involving a person’s reproductive system – that lacks consent – is a crime, criminal behavior such as this will continue to fall through legal loopholes.
Swapping sperm violates victims on several fronts:
Fraud vitiates the consent form which was required in order to perform the medical procedure since the patient was not knowledgeable….. rendering the medical procedure an illegal act.
Fraud violates the victim’s sexual autonomy, a sexual assault, because the patient was not knowledgeable and informed. She could only “assent” which means “agreement on the face of it.” She could not “consent” which means “freely given. knowledgeable and informed agreement.”
In matters of reproduction, fraud creates the bond of pseudo-family. Revelation could be devastating to all parties.
The laws of Texas are upon you, or, at least, they should be
In Texas, “consent” is ignored where rape and sexual assault is concerned. In several efforts to report rapes to various precincts, police officers, and even a Sergeant, recently told victims, “Consent is not an element of rape in Texas.”
Violating consent is clear when someone steals property…. but the same consent provision that protects property is not applied in protecting a person’s sexual autonomy. Instead, the legislators of Texas have chosen specific acts of sexual assault to prosecute… a system consistent with using an umbrella made of Swiss cheese to protect against a storm.
Texas should take a cue from Missouri or from my TEDx Talk!
Unlike Texas where fraud only protects against theft and not sexual assault, Missouri’s Rape in the 2nd Degree statute clearly states: “Assent is not consent when induced by force, duress or deception,” While Missouri expresses when consent does not take place, my TEDx Talk, “When YES Means NO – The Truth about Consent,” clearly defines what consent actually is – Freely Given, Knowledgeable and Informed Agreement. #FGKIA!
Did the patient freely give the doctor knowledgeable and informed agreement? There’s no Swiss cheese when #FGKIA is applied. It’s an all-encompassing umbrella!
Knowing what I do about sexual assault, that our laws really don’t define “consent” correctly, it pains me to see all the misguided efforts by intelligent, serious minded people who try to come to grips with the rampant volume of sexual assault. There really is one, and only one, necessary solution…. correctly defining consent in our laws, and creating a fully encompassing sexual assault provision to sync with that definition.
Without taking this critical step, sexual assault will never be defeated! Instead, we’re simply sticking a band aid over an amputation. #MeToo has highlighted the problem but too many sexual assaults are falling through the cracks in legal loopholes or being termed “confusion” or “bad sex,” by an unknowing society.
How terrible are our current laws?
My ConsentAwareness.Net friends who are fighting to change the laws in Texas know only too well how absurd the current laws are in their state. They’ve been to five precincts in the last couple of weeks. Even though Texas has a reasonably clear definition, it is only used to thwart thieves, not rapists. In fact, in the specific words of a precinct Sergeant in Ft. Worth…. “Sexual assault is not defined by consent in Texas.” If you think your state is better at recognizing sexual assault, think again!
Curbing crime takes both definitions and provisions
To fight sexual assault, we need new language that identifies what consent actually means…… “Freely Given, Knowledgeable, and Informed Agreement.” And each state or territory needs a statute that unequivocally states, “Nonconsensual sex is sexual assault.”
Penal Code definitions AND provisions need to work in unison in order to make sense. Having one without the other is an ineffective non-starter.
The solution’s not rocket science. It’s plain and simple. It’s been ignored for centuries because our laws reflected the concepts that women, the largest share of sexual assault victims, were chattel. Their virtue was a commodity owned by someone other than them. What happened to them, as second class citizens, was irrelevant. Because few actually examined our laws and researched the misconceptions that enables rape in our present society, nothing substantive has been done about it.
I’ve researched our laws….It’s time for a change!
Your Consent – The Key to Conquering Sexual Assault conveys the issues in plain language. Whether you’re a legislator, an educator, a judge, juror, or simply a concerned person, you can easily understand the message it conveys. This book can make a world of difference, and YOU can help make that happen!
Please get your copy today!
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