Some jurors were stunned during the 2018 Bill Cosby trial on sexual assault charges when they asked the judge for a legal definition of consent.
He told them that according to the laws of Pennsylvania they are not.
“He said that you, as reasonable people, have to give your own definition,” said Cheryl Carmel, who was the chairman of the jury.
Mr. Cosby was charged with using an intoxicant on a woman, Andrea Constand, and then infiltrating her without her consent. Ms Konstand came to his home outside of Philadelphia and took wine and pills, which she said were considered herbal medicines.
Although Mr. Cosby described sexual contact in 2004 as voluntary, Ms. Konstand said she was too drunk to resist physically or verbally.
“It was a sexual assault case and there was no definition,” Ms Carmel recalled in a recent interview. “It just amazed me.”
Following her trial, Ms. Carmel worked to close what she and many others see as a critical loophole in the law, joining forces to get Pennsylvania to define consent as a positive act, emphasizing that not saying no is not permission.
This is an unusual search for a former juror, most of whom the researchers say rarely show the activity driven by their experiences during the trial. But Miss Carmel is determined.
“This is a problem for the entire United States and it is not defined,” she said. “There must be something that can be done to fix this so that future jurors can do their job more effectively.”
In many states in America, there is no definition of consent in the criminal laws governing sexual assault. Of those who agree, some characterize consent as a lack of objection: if you have not somehow physically or verbally said “no” and have not been unconscious or otherwise incapacitated, then you have agreed.
Activists such as Ms. Carmel believe laws should require a “yes” signal to confirm consent.
Attempts are under way to add or refine the definition of consent in several states such as New York, Vermont, and Utah. Experts say they are a product of the #MeToo era, which has already led to initiatives – some more successful than others – to extend or remove statutes of limitations for sexual harassment cases and limit nondisclosure agreements that can silence victims of sexual harassment. claims.
“We are in a moment of change where we are seeing attempts to align criminal law with the current cultural understanding of consent,” said Deborah Türkheimer, a former prosecutor who teaches at Northwestern University and an expert on sexual abuse law.
Many advocates for change say that laws should clearly define consent, meaning a positive, unequivocal “yes,” consent expressed orally or through some other action that is freely communicated and informed. According to this definition, someone who consented to sex, but was forced or deceived, could not actually agree.
The proposals are roughly in line with regulations already in place in a small number of states, such as Wisconsin, and in many colleges where sexual consent has long been a major issue.
In New York, advocates for change include Don Dunning, the actress who accused Harvey Weinstein of sexual assault in court. Without a clear definition of consent, she said in an interview, “This is just a gray area, and this is the last thing you need when you talk about sexual assault.”
In Utah, critics of the current law cite sections such as the one that says sexual assault is committed “without consent” when “the actor knows the victim is unconscious.”
Professor Paul Cassell, a law professor at the University of Utah and a former federal judge, said the language of the state is too important to prove the defendant knew there was no consent. “What if the guy said,“ It was 50:50, I wasn’t sure, ”the professor asked. “In Utah, that means you are not guilty of rape.”
The specifics vary from place to place, but only a few states in the US now define consent as requiring affirmative action – freely expressed consent in words or actions. As attempts are made to increase this number, there is an ongoing debate about how much of the law should apply to sexual contact.
While advocates for change applaud all efforts to further define consent and eliminate confusion, others question whether it is appropriate to legislate that every step in sexual intercourse requires an affirmative answer, or to criminalize behavior in which misunderstanding and simple misunderstanding rather than aggression are to blame.
“The language of sex is complex,” said Abbie Smith, Georgetown’s law professor. “The criminal law is too crude a tool.”
Such concerns were voiced during an unsuccessful attempt to introduce affirmative language in the latest revision by the American Law Institute of its model criminal code, which was considered the model for state law.
In the Cosby case, the issue of consent arose when the group sat in the Montgomery County Courthouse, using a table on an easel to record the highlights of their discussion.
In civil testimony, Mr. Cosby said he did not ask for permission orally when he placed his hand on Mrs. Constand’s stomach during their meeting at his home in suburban Philadelphia one evening in early 2004. “I can’t hear her say anything. , “he said.” And I don’t feel like she is saying anything. So I go ahead and enter an area that is somewhere between permission and denial. I was not stopped. “
According to the testimony of Ms. Konstand, she was passive and, due to intoxicants, could not move, fend off him, or even correctly understand what was happening to her.
Some of the jurors, according to two in attendance, wondered aloud, if Ms Konstand didn’t say no, would that mean agreement?
When the judge was unable to give a legal definition, 62-year-old Ms Carmel stepped into the place of the foreman. She had some experience in this topic because she works in the cybersecurity and privacy industry for an emergency communications company. At the time, she helped her company comply with new European data protection regulations, which require companies to obtain positive consent from people who visit their websites before using their personal information.
She told her fellow jurors how the data protection rules state that consent must be given freely through a clear affirmative act, be specific, informed and unambiguous, and that it can be revoked.
“By providing such a foundation, it helped everyone get over the ‘She didn’t say no’ hump,” Ms Carmel said. “It helped keep the conversation going.”
Another former Cosby juror, Diane Selza, agreed. “It was important for us to come to some understanding of what this means and how it affected the verdict,” she said.
Mr. Cosby was convicted in 2018 after a jury decided that Ms. Konstand did not agree with his actions. Earlier this year, the Pennsylvania Supreme Court overturned the conviction, finding prosecutors 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 is trying to introduce affirmative definitions into state laws. She read about the problems the Cosby jury faced with consent and about Miss Carmel’s approach as foreman.
Since then, Ms Carmel has met with local lawmakers on several occasions lobbying for a bill defining the consent activists plan to bring to the Pennsylvania legislature.
“I realized it was important to bring Cheryl to meetings with legislators because she really could explain,” said Ms. Short. “Their jaws literally dropped.”
Senator Katie Muth, a rape survivor who supports the bill, said: “Having a definition in the law will take one less painful step if you do come forward.”
But even proponents of the law predict that getting through will be difficult.
“It’s going to be a very slow process because of the nuances,” said Jennifer Storm, a former victim advocate for the Commonwealth of Pennsylvania and author of several books on sexual harassment. “It’s not easy to define consent. It’s too subtle for that. There are nuances in sex. ”
However, Ms Carmel said she was patient. After retiring next month, she said she hopes to devote more time to what she says has become her passion – improving legislation in Pennsylvania and possibly other states.
“How can we make it easier for people like me to be on the jury, listen to what the judge says, listen to the evidence, and come to a reasonable decision?” she said. “I want the other jurors to get all the tools they can use.”