By Joyce Short
People often look at me like I have four eyes when I tell them that our penal laws fail to define “consent.” They just naturally think a concept so important that it protects against sexual assault would be long established. After all, we hear about consent all the time…… even though our laws don’t actually tell us what it is.
Long before #MeToo and #TimesUp burst on the scene, I wrote about my experiences and research on sexual assault. I found that 76% of US states and territories have no consent provisions. The 24% that contain provisions, use language that can make prosecuting sexual assault impossible. No state or territory actually clearly defines consent in unambiguous, straightforward language. I’m on a mission to change that.
My first book, Carnal Abuse by Deceit, came out in 2013. At the time, there was a dreadful absence of information to help survivors come to terms with their struggles. As a survivor, I felt if I could help others recover and bring about new laws, my journey would not have been in vain.
The long, winding road to change
A month ago, I had the privilege of informing five legislators in Pennsylvania about the meaning of consent. They had no idea that a consent deficiency existed in their penal code. I’d brought along the foreperson from the Bill Cosby jury, Cheryl Carmel, and Nina Lucas, our Pennsylvania Outreach Ambassador for ConsentAwareness.net. We’re seen here with Senator Katie Muth to my right.
Cheryl confirmed that the jury had asked Judge Steven O’Neill the legal definition for consent. Because Pennsylvania has no such definition, O’Neill responded, “You’re reasonable people; use your commonsense.”
Fortunately, there is considerable background material on the meaning of consent to draw from and that’s exactly what the jurors did. I’ve long advocated for the definition “#FGKIA, freely given, knowledgeable and informed agreement” to be adopted into law. This definition is at the heart of my books, including my most recent, “Your Consent – The Key to Conquering Sexual Assault,” and my TEDx Talk, “When YES Means NO – The Truth about Consent.”
Carmel, as a specialist in cyber security, was familiar with General Data Protection Regulation (GDPR) which went into effect throughout Europe in 2018. GDPR contains a very similar definition to #FGKIA for consent in protecting privacy on the World Wide Web. Adherence to GDPR is mandatory for anyone or any business conducting communication through the internet in Europe. It is not simply a foreign concept. All US entities must conform or they could be prosecuted under international law.
When it comes to applying the concept of consent to sexual conduct, simply remember that #FGKIA rhymes with “Keep your rape mentality away!” #FGKIA = Freely Given, Knowledgeable and Informed Agreement.
We’ve continued to meet with Pennsylvania’s legislators and today, I’ve been asked to critique the first draft of what may soon become a bill on consent for the state. While we’re a long way from turning that bill into law, I’m deeply gratified to see the progress we’re making. I hope we can replicate this effort in each and every state.
The problem with existing US Penal Codes
Throughout the US and around the world, our laws either have partial or incorrect definitions, or provisions that outlaw some forms of sex crimes, but not all. I like to call this spotty method of protecting against sex crimes the “Swiss Cheese Umbrella” approach. When an egregious sex crime takes place that the Swiss Cheese Umbrella fails to cover, legislators scramble to plug up that specific and glaring hole. But we can’t possibly think of all the ways someone can be sexually assaulted any more than we can imagine all the ways someone could be murdered. And even serious attempts to plug the holes can fail to achieve success.
For instance, take the recent case of Donald Grant Ward in West Lafayette, Indiana. While attending Purdue University, he’d climbed up into the narrow bunkbed where a coed named Abi Finney (who has gone public over this incident) had fallen asleep in her boyfriend’s embrace.
That evening, Abi and her boyfriend had gathered with some friends in his dorm room. They’d talked, joked around, and played video games like college students often do, but this night would prove radically different. As the night wore on, Abi got weary and climbed up into the top bunk. Her boyfriend followed her. She fell asleep with his arms around her and awoke to the feel of a hand stoking her breast. The hand travelled down her torso, into her underwear, and engaged her, willingly, in sex.
About two minutes into their sexual tryst, Abi felt the need to head to the bathroom. When she returned, Ward was sitting on the top bunk smiling down at her. She was bewildered. His appearance made no sense. She decided to walk down the hall to her own room where she found her boyfriend fast asleep in her bed. He’d been uncomfortable in the narrow space and since Abi was already sleeping, he’d decided to go to her room rather than wake her up to do so.
Her boyfriend was horrified when Abi revealed what took place. He marched down the hall to confront Ward who admitted that he’d deliberately tricked Abi into sex. The police were summoned. Ward made the same admission to them, and they locked him up for rape.
Just like Pennsylvania, Indiana has no definition for consent in their law, and their Swiss Cheese Umbrella failed to cover a deliberate attempt to impersonate another in order to induce sex. Ward was acquitted….not because he didn’t do what he’d already admitted to, but because his conduct is not outlawed in Indiana.
State Representative Sally Siegrist was outraged when she heard of this oversight. She wanted to insure it never happened again in her state. As an author, Subject Matter Expert, and Expert Witness on consent, I had the honor of working with her toward passing her bill. She’d introduced my TEDx Talk to everyone on her legislative committee. BuzzFeed, Inside Edition and Nightline picked up the story. Even though Rep. Siegrist was not re-elected, we were hopeful that the egregious nature of Ward’s conduct would surely propel her bill through the legislature…. It did not.
Not only did the legislators of Indiana fail to recognize the need to protect residents of their state, they opened the door to copycatting because now it’s obvious that Ward’s behavior will not secure a conviction in Indiana. If I were seeking higher education for my child, Indiana would decidedly be off my list!
But Indiana is far from the only state where the application or definition of consent is deficient.
A consent provision actually exists in Texas law. It clearly states “Consent is not effective if induced by force, threat or fraud.” Yet at five police precincts, sexual assault victims were turned away by officers who claimed, ”Consent is not an element of rape in Texas.” They stated that consent applies only in cases of theft, not sexual assault. Only the specific acts of sexual assault covered by their Swiss Cheese Umbrella get traction from the Texas police.
A glaring hole in the Texas umbrella was plugged last month. A Texan named Eve Wiley learned that her very existence came about as a result of a fertility doctor impregnating her mother with his own sperm instead of the sperm of donor #106, which she had selected. Wiley’s case convinced legislators to pass the first “Sexual Assault by Fraud” law in Texas, but limits its reach to this specific and only method of violating a victim’s right to sexual, self-determination by using fraud. The Governor of Texas signed the bill into law last week and it becomes effective on September 1 of this year. Wiley has joined forces with ConsentAwareness.net to create a broader understanding for consent in Texas law.
In New York, a prominent artist in the comic book industry produced a divorce decree to prove to his lover that he, indeed, was divorced. He engaged him in a five year relationship by forging the signature of an actual judge onto a divorce decree. Ultimately, the victim discovered a website selling the type of divorce decree his boyfriend used.
In New York’s Penal Code, being informed or knowledgeable, an important element that’s included in any legitimate definition of consent, is omitted. And efforts to change the law are stymied by the concern that minorities are unfairly treated by the justice system; therefore, legislators are loathe to add more penal code to the mix. The concept that those same legislators are responsible to repair the justice system, and that depriving sexual assault victims of justice is not an acceptable solution, escapes their grasp.
How is sexual assault treated differently than other crimes?
We all know what murder is. It’s the crime that takes place when someone kills you. It doesn’t matter what type of weapon they used…poison, a knife, a hand gun, an explosive device. No matter how large or small the weapon is, when they snuff out your life, they’re a murderer. And there are multiple levels of murder with differing degrees to administer punishment. For instance, there’s Murder I, Murder II, Manslaughter, Criminally Negligent Homicide, and more. But anytime someone dies at another person’s hands, we recognize a crime was committed.
We also know that when an offender steals your property – takes something of yours without your consent – they’re a thief. If they used violence or a weapon, they’re punished more harshly than if they used a non-violent method like coercion or fraud. But no matter how your property ends up in their possession without your consent, and regardless of what you were doing, saying, or wearing at the time, we recognize they’ve committed a crime.
But, not so with sexual assault. We become oblivious to the actual meaning of consent. What we recognize to be consent in theft flies out the window and we’re left with the Swiss Cheese Umbrella that recognizes some but not all forms of sexually assaulting you: deliberately subjecting you to nonconsensual sex.
Recently in Alaska, a man by the name of Justin Schneider, strangled a woman and made her pass out. He’d offered her a ride home. There was no discussion between them about sex.
When she regained consciousness, she found that he’d ejaculated all over her face. He was not charged with a sex crime because Alaska’s law requires being touched by his private parts, not his semen. Legislators rushed to define ejaculating without touch a crime. They took care of the Swiss cheese loophole in this particular case. But if they adopted a statute to define consent, they would close all the remaining loopholes, not just this one.
What is appropriate punishment for sex offenders?
Surely our laws should punish violent rape more harshly than non-violent sexual misconduct. But all sexual violations should be covered by a more appropriate umbrella, one made of a thick slab of Muenster or cheddar, but surely not Swiss cheese.
Mankind has some basic functions that are at the very core of our nature. First and foremost, we need to provide ourselves with nourishment and safety. Just beyond those basic survival requirements, Mother Nature has empowered us with the bodily functions for reproduction that enable us to preserve our species. Often in our modern-day, over-sexualized society, we see sex as entertainment and lose sight of its core value. But no matter how callous and cavalier we can be about sex, Mother Nature will not let us forget its importance.
Undermining the victim’s sexual autonomy violates them at the core of their being; destroying their sense of self-worth and value. Sexual assault causes them to feel dirtied, polluted and defiled. The size or nature of the weapon the offender used does not change their feeling of being damaged.
Defilement is what separates sexual assaults from other forms of assault. If defilement were not so detrimental to a person, we would treat violations of a person’s reproductive system the same way we treat punching someone in the nose or breaking their arm. Instead, we recognize the heinous nature of undermining their sexual autonomy. Problem is, for centuries, we only recognized force as the means to do so, irrespective that there are countless other ways.
How can we create change?
Our entire system for dealing with sexual assault needs a major shake-up. The solution is absurdly easy and staring us in the face. Our laws simply fail to recognize what consent is, and therefore, they fail to consistently apply consent to sexual conduct. This shortfall makes most non-violent sexual assaults a free-for-all.
The US fought a civil war in which brothers took up arms against each other. The fact that no man should ever enslave another intruded on their comfort zone and led to staunch resistance. Similarly, the recognition that no man (or woman) should engage in sex without the other person’s consent… and that consent is freely given, knowledgeable and informed agreement, meets similar resistance. Opposition to abolition sprung from the financial interests of a plantation society. Resistance to recognizing the meaning of consent emanates from deeply held, patriarchal beliefs that fail to respect the sexual autonomy of every individual.
We will never conquer sexual assault unless we define the meaning of consent in penal codes across the US and around the world, and clearly state that nonconsensual sex is a sexual assault.
Watch my TEDx Talk. Read Your Consent – The Key to Conquering Sexual Assault. Then call your legislators and demand change, today!
Together, we can make the world a safer place for you, your children, and all the generations to come.