Assembly Member Rebecca Seawright unveiled new legislation today that would, for the first time, define the meaning of consent in the state of New York’s penal law for sexual assault and all crimes.
Under the Seawright proposal, consent is defined as "freely given, knowledgeable and informed agreement… obtained without the use of malice such as forcible compulsion, duress, coercion deception, fraud, concealment, or artifice."
The measure would replace the current practice at criminal trials of leaving juries to deliberate over the meaning of consent without any guidance from the statute. Advocates for victims of sexual assault say the Seawright law, as proposed, would significantly reduce disparate outcomes in sexual predator convictions.
"The United States Bureau of Justice Statistics reports that a sex crime is committed every 73 seconds," said Assembly Member Seawright, who announce her legislation on the National Day of Action of Sexual Assault Awareness Month. "We must stop this rising trend by clearly defining consent, thereby empowering our police and prosecutors to take action."
Joyce Short, the founder of the advocacy group Consent Awareness Network (CAN) and the author of Your Consent – The Key to Conquering Sexual Assault, said the measure is the first of its kind in the nation.
"Defining consent in our laws will consistently hold sexual predators accountable and conquer sexual assault as well as laying down the law in other crimes," she said. “Whether consent is applied to your COVID19 vaccination, placing data on the internet, revenge porn, sex trafficking or sexual assault, consent is always… freely given, knowledgeable and informed agreement. New Yorkers desperately need this law – yesterday!"
Tarale Wulff, a New York actor and model who helped convict motion picture executive Harvey Weinstein on rape and criminal sexual assault in March 2020, said, “Before testifying in the trial of Harvey Weinstein, I didn’t know there wasn’t a true definition of consent in our laws,” she said. “Weinstein claimed to be confused, and that he thought most men are confused…There’s a generation of woke individuals who won’t be silenced. By clearly defining consent, there will be no confusion.”
Dawn Dunning, a creative director and model who also testified in the Weinstein trial, said, "Consent is consent in all things, not only sex. Applying consent in the general law makes it clear that the same "consent" that protects your property also protects your body."
The definition for consent in this legislation conveys the same principles as those used by Model Penal Code, Nuremberg Code, and General Data Protection Regulation (GDPR.) All three highly regarded and currently administered codes guide behavior in medical experiments, medical treatment, statutes that pertain to theft, and the protection of cyber privacy on the internet, as recognized in international law.
But states have been slow to adopt definitions for consent. The jurors in the Weinstein case asked Judge James Burke, "What is the definition for consent." Judge Burke responded, "Use your commonsense." His response was almost identical to Judge Steven O'Neill's response several months earlier in the Bill Cosby trials in Pennsylvania.
Judge O'Neill had responded to the juries in both the first and second trials, "That is a question that cannot be answered. You are reasonable people. Use your commonsense." With no guidance from Judge O'Neill, the initial jury for Cosby's case could not agree on a verdict. The foreperson for the second jury, a cyber security expert familiar with the definition of consent in GDPR, explained this definition to fellow jurors who rendered a guilty verdict.
"The proper definition of consent in New York's laws will clarify lawful sexual conduct, guide behavior, and make it possible to hold sexual predators accountable," said Seawright. "This vital concept must no longer be left to chance."