Manhattan Assemblymember Rebecca Seawright introduced legislation, fighting to make New York the first state in the country to legally define “consent.” Currently, there is no definition in New York’s penal code.
Assembly Bill A6540 defines consent as “freely given knowledgeable and informed agreement.” Consent must be obtained “without the use of malice such as forcible compulsion, duress, coercion, deception, fraud, concealment or artifice.”
“We don’t want to leave that definition for juries to have to grapple with,” explained Seawright. “We want to actually define it in the penal code so that we know what it means.”
When the jury in Harvey Weinstein’s trial asked the judge to define “consent,” they were told to use common sense.
The same scenario occurred in Bill Cosby’s trial.
“I find it really gross, because consent is at the core of every rape trial,” said Taralé Wulff, who testified at Weinstein’s trial, alleging he raped her in 2005.
Both Wulff and fellow Weinstein accuser Dawn Dunning support Seawright’s legislation.
“If it’s not written into law, how can he [the judge] give the jury a universal definition of something that they can – all of them – fairly use and apply?” said Wulff.
Current New York penal code only defines what is non-consensual. Unless there is a specific law written for a precise set of non-consensual circumstances, things will fall through the cracks.
“The end result is that we have laws that look like a Swiss cheese umbrella,” said Joyce Short, founder of the Consent Awareness Network and the host of a Ted Talk on consent.
“Once we have the definition for consent, it’ll act like a polyurethane coating over that umbrella so that the sexual predators can’t just dive into those legal loopholes.”
Wulff said she could have pressed charges against Weinstein, had a legal definition of consent existed years ago.
“Charges against Harvey Weinstein – absolutely,” said Wulff.
“It may not have prevented it from happening, but I would have known that it was a crime and not my fault.”
With a legal definition of consent, Short said that prosecuting sexual assault cases will shift the defense’s strategy from victim-blaming, questioning an accuser’s outfit or decision to drink, to proving the accused obtained consent.
“Victims’ words and contact are not going to be on trial,” said Short. “What’s going to be on trial is, what did the offender do in order to gain compliance from the victim.”
“Every other crime, you need consent,” Short added. “Sexual assault cases are the only cases where the victim is on trial.”
Put differently, Wulff framed her explanation in comparison to other crimes:
“When somebody has their car broken into, you don’t ask why you parked it on that street,” said Wulff. “You don’t ask why that person was wearing, you know, a diamond ring when they got robbed. You don’t ask them that when their property is stolen. So why do you do that when their bodies are violated?”
Assemblymember Seawright is now looking for someone to introduce the same legislation in the state senate.
She hopes to pass the bill before the current legislative session ends on June 10th.
“Women have to stand up, speak out, and fight for change,” said Seawright. “And we will accomplish it.”