Bill Cosby juror pushes for clear legal definition of consent

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Some jurors were stunned during the deliberations of Bill Cosby’s 2018 trial on sexual assault charges when they asked the judge for the legal definition of consent.

He told them there was none under Pennsylvania law.

“He said that as reasonable people you have to find your own definition,” said Cheryl Carmel, who was the chairman of the jury.

Mr Cosby had been charged with administering an intoxicating substance to a woman, Andrea Constand, and then penetrating her without her consent. Mrs. Constand had come to his home outside of Philadelphia and accepted wine and pills which she believed to be herbal remedies.

Although Mr Cosby described the sex in 2004 as consensual, Ms Constand said she was too intoxicated to resist physically or verbally.

“This was a sexual assault case and there was no definition,” Ms. Carmel recalled in a recent interview. “It just blew me away.”

Since the end of the lawsuit, Ms Carmel has worked to fill what she and many others see as a critical loophole in the law, joining an effort to get Pennsylvania to define consent as an affirmative act, an act which emphasizes that the absence of a “no” does not constitute authorization.

It’s an unusual quest for a former juror, most of whom, researchers say, rarely engage in activism precipitated by their experience in a trial. But Ms. Carmel is determined.

“It’s a problem all over the United States, it’s not defined,” she said. “There has to be something that can be done to correct this, to make sure future jurors can do the job they need to do more effectively.”

Many US states lack definitions of consent in their criminal laws governing sexual assault. Of those who do, some characterize consent as the absence of objection – that if you did not physically or verbally communicate ‘no’ and were not unconscious or otherwise incapable, then you have consented.

Activists like Ms. Carmel believe laws should require a “yes” signal to establish consent.

Efforts are currently underway to add or refine a definition of consent in several states, such as new York, Vermont and Utah. They are an outgrowth, experts say, of a calculation from the #MeToo era that has already led to initiatives – some more successful than others – to extend or eliminate statutes of limitations in sexual assault cases. and to restrict nondisclosure agreements that can silence victims of sexual harassment lawsuits.

“We are in a time of change where we see an effort to bring the criminal law closer to today’s cultural understanding of consent,” said Deborah Tuerkheimer, a former prosecutor who teaches at Northwestern University and is an expert on assault laws. sexual.

Many advocates for change say laws should clearly define consent as meaning a positive and unequivocal “yes”, an agreement that is indicated verbally or by some other freely given and informed action. According to this definition, someone who consented to sex but was coerced or deceived, could not have actually consented.

The proposals roughly mirror regulations already in place in a small number of states like Wisconsin and many colleges, where consent to sex has long been a prominent issue.

In New York City, proponents of change include Dawn Dunning, an actress who accused Harvey Weinstein during his trial of sexually assaulting her. Without a solid definition of consent, she said in an interview, “It’s just a gray area, which is the last thing you want when you talk about sexual assault.”

In Utah, critics of the current law cite articles like the one that says sexual assault is “without consent” when “the actor knows the victim is unconscious.”

Professor Paul Cassell, a University of Utah law professor and former federal judge, said state language places too much weight on proof that the accused knew there was no of consent. “What if a guy said, ‘It was 50:50, I wasn’t sure,’” the professor asked. “In Utah, that means you are not guilty of rape.”

Details vary from place to place, but only a handful of US states now define consent as requiring an affirmative act – an agreement freely given in word or deed. As efforts to increase this number continue, debates continue over the scope of the law in sexual relations.

While proponents of change applaud all efforts to further delineate consent and eliminate confusion, others question whether it is practical to legislate that every step of a sexual relationship requires an affirmative yes, or to criminalize behaviors where communication problems and simple misunderstandings, and not aggression, are to blame.

“The language of sex is complicated,” said Abbe Smith, a Georgetown law professor. “Criminal law is too brutal an instrument.

Such concerns were raised during an unsuccessful effort to introduce affirmative language into the American Law Institute’s latest overhaul of its model criminal code, seen as a model for state laws.

In the Cosby case, the issue of consent arose when the panel deliberated inside the Montgomery County courthouse, using a flip chart on an easel to record the main points of their discussion.

In a civil deposition, Mr Cosby said he did not ask permission verbally when he put a hand on Ms Constand’s stomach when they met at her home outside of Philadelphia one evening at the early 2004. “I don’t hear him say anything,” he said. “And I can’t feel her say anything. And so I go on and get into the realm that is somewhere between permission and rejection. I am not stopped.

Ms. Constand testified that she was passive and, due to the intoxicants, unable to move, push him away or even fully understand what was happening to him.

Some jurors, according to two who were present, wondered aloud if, if Ms. Constand had not said no, did that constitute consent?

When the judge could not provide a legal definition, Ms Carmel, 62, introduced herself as a foreman. She had some knowledge of the subject as she works in cybersecurity and privacy for an emergency notification company. At the time, she was helping her business comply with new European data protection regulations that require businesses to obtain positive consent from people visiting their websites before using their personal information.

She explained to her fellow jurors how data protection rules state that consent must be freely given by a clear affirmative act, be specific, informed and unambiguous, and that it can be withdrawn.

“By providing that kind of a framework, it helped everyone overcome the barrier of ‘she didn’t say no’,” Ms. Carmel said. “It helped the conversation move forward.”

Another former Cosby juror, Dianne Scelza, agreed. “It was important for us to come to some kind of understanding of what this meant and how it played out in the verdict,” she said.

Mr Cosby was convicted in 2018 after the jury ruled Ms Constand had not consented to his actions. Earlier this year, the Pennsylvania Supreme Court overturned the conviction, ruling that prosecutors had violated Mr. Cosby’s due process rights. He was released from prison in June.

After the trial, Ms Carmel was approached by Joyce Short, founder of the Consent Awareness Network, which tries to introduce affirmative definitions into state laws. She had read the problems the Cosby jury had had with Mrs. Carmel’s consent and approach as foreman.

Since then, Ms. Carmel has met with local lawmakers on several occasions, lobbying on behalf of a bill to define the consent activists plan to introduce into the Pennsylvania legislature.

“I recognized the importance of bringing Cheryl to meetings with lawmakers because she could really explain,” Ms. Short said. “Their jaws dropped, literally.”

Senator Katie Muth, a rape survivor who supports the bill, said: “Having a definition in the law is a painful step if you come forward. “

But even supporters of the legislation predict that it will be difficult to get it passed.

“It will be a very slow process because of the nuances,” said Jennifer Storm, former victim advocate for the Commonwealth of Pennsylvania and author of several books on sexual assault. “It’s not that easy to define consent. It’s far too nuanced for that. The sex is nuanced.

Ms. Carmel, however, said she is patient. After retiring next month, she said she hopes to devote more time to what she says has become her passion – refining the law in Pennsylvania and possibly other states.

“How can we make it easier for people like me to stand on jury, listen to what a judge has to say, listen to the evidence and make a reasonable decision? ” she said. “I want to make sure the other jurors get all the tools they could possibly use.”

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