This Bill Cosby Juror is Lobbying for a Clear Legal Definition of Consent

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

He told them there weren’t any under Pennsylvania law.

“He said that as sensible people you have to come up with your own definition,” said Cheryl Carmel, the jury’s supervisor.

Mr. Cosby had been charged with drugging a woman, Andrea Constand, and then penetrating her without her consent. Ms. Constand had come to his home outside Philadelphia and accepted wine and pills that she said were herbal medicines.

Although Mr. Cosby described the sexual encounter as consensual in 2004, Ms. Constand said she was too drunk 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 process, Ms. Carmel has worked to fill a critical loophole in law that she and many others view as a critical loophole, and joined efforts to get Pennsylvania to define consent as an affirmative act, who emphasizes that the absence of “no” ”does not constitute permission.

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

“This is an undefined problem across the United States,” she said. “Something needs to be done to correct this to ensure that future jurors can do their jobs more efficiently.”

Many US states do not have consent definitions in their criminal laws against sexual assault. Of those who do, some characterize consent as a lack of objection – that unless you somehow said “no”, physically or verbally, and were not passed out or otherwise incapacitated, then you consented.

Activists like Ms. Carmel believe that laws should require a “yes” signal in order to get approval.

Efforts are underway to add or refine a definition of consent in several states such as New York, Vermont, and Utah. Experts say they are a result of a #MeToo era that has already resulted in initiatives – some more successful than others – to extend or remove statutes of limitations in sexual assault cases and to limit nondisclosure agreements that can silence victims of sexual harassment lawsuits.

“We are in a moment of change where we are trying to adapt criminal law to the current cultural understanding of consent,” said Deborah Türkheimer, a former state attorney who teaches at Northwestern University and is an expert on sexual assault law .

Many proponents of change say that the law should clearly define consent as a positive, unequivocal “yes,” consent expressed orally or through some other freely given and informed act. By this definition, someone who consented to sex but was forced or deceived would not actually have consented.

The proposals roughly reflect the regulations already in place in a small number of states such as Wisconsin and many colleges where consent to sexual encounters has long been a priority.

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

In Utah, critics of the current law cite sections such as one that says that sexual assault occurs “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 state’s language placed too much emphasis on proving the defendant knew there was no consent. “What if a guy says, ‘It was 50:50, I wasn’t sure,'” the professor asked. “In Utah, that means you are not guilty of rape.”

The details vary from place to place, but only a handful of US states now define consent as a requirement of affirmative action – voluntary consent in word or deed. As efforts to expand this number continue, debates are ongoing as to how far the scope of the law should be extended to include sexual encounters.

While advocates of change applaud efforts to further delineate consent and clear up confusion, others wonder whether it makes sense to legislate that every step in a sexual encounter requires a positive yes or criminalize behaviors that involve misunderstanding and accuse simple misunderstanding, not aggression, of being criminalized.

“The language of sex is complicated,” says Abbe Smith, a law professor at Georgetown. “The criminal law is too blunt an instrument.”

Such concerns were raised during an unsuccessful attempt to introduce positive language into the American Law Institute’s latest revision of its model criminal code, which is considered a blueprint for state law.

In the Cosby case, the issue of assent arose as the panel deliberated in the Montgomery County courthouse and used a table on an easel to record the main points of its discussion.

In a civil statement, Mr. Cosby had stated that he had not verbally asked for permission when he laid his hand on Ms. Constand’s diaphragm one evening in early 2004 during their meeting at his home outside Philadelphia, “he said.” And I sense that she says nothing. And so I go on and go into the area that lies somewhere between permission and denial. I am not stopped. “

According to Ms. Constand, she was passive and, because of the intoxicants, unable to move, fight him off, or even properly understand what was happening to her.

Some jurors, according to two people present, wondered aloud whether if Ms. Constand did not say no, that would be consent?

When the judge was unable to provide a legal definition, Ms. Carmel, 62, stepped forward as foreman. She had a bit of a background on the subject as she works in cybersecurity and privacy for an emergency notification company. At that time, she helped her company comply with new European data protection regulations, which require companies to obtain positive consent from visitors to their websites before using their personal data.

She told her fellow jurors that the privacy policy states that consent must be given voluntarily through unequivocal consent, specific, informed, and unambiguous, and that it can be withdrawn.

“By providing this type of setting, it has helped everyone get over the ‘she didn’t say no’ hump,” said Ms. Carmel. “It helped the conversation move on.”

Dianne Scelza, another former Cosby juror, agreed. “It was important for us to understand what it means and how it goes into the judgment,” she said.

Mr Cosby was convicted in 2018 after the jury ruled that Ms. Constand did not consent 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, who is trying to introduce positive definitions into state law. She had read about the problems the Cosby jury had with consent and Mrs. Carmel’s approach as a foreman.

Since then, Ms. Carmel has met with local lawmakers several times and lobbied for a bill defining consent that activists want to introduce into the Pennsylvania legislature.

“I knew it was important to bring Cheryl to the legislative meetings because she could really explain,” said Ms. Short. “Your jaw literally dropped down.”

Senator Katie Muth, a rape survivor who supports the law, said, “Having a definition in the law makes a less painful step when you get in touch.”

But even proponents of the law predict that it will be difficult to get your way.

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

However, Ms. Carmel said she was patient. After she retires next month, she hopes to devote more time to what she thinks has become her passion – refining the law in Pennsylvania and perhaps other states.

“How can we make it easier for people like me to be on a jury, to listen to what a judge has to say, to hear the evidence, and to make a sensible decision?” She said. “I want to make sure other jurors have all the tools they can possibly use.”