Bill Cosby’s 2018 sexual assault trial exposed a major flaw in our legal system: there is no single legal definition of the word ‘consent’. Each state is left alone to determine the definition based on state laws or court cases, but many states do not have a working definition of the term. Pennsylvania, where Cosby was tried, has no formal definition of ‘consent’; which complicated the trial by hindering the jury’s ability to effectively do their job. Since there is no clear definition, it is difficult for a jury or judge to determine whether the actions described in a sexual assault case can be categorized as non-consensual. This grey area results in lower rates of conviction in cases where the defendant is likely guilty. After seeing the repercussions of this issue firsthand, one juror involved in the Cosby trial, Cheryl Caramel, is advocating for consent to have a clear definition: a positive, unequivocal ‘yes’ indicated verbally or by some other action that is freely given and informed.
In simple terms, Ms. Caramel is working to kill the ‘She didn’t say no’ narrative. Furthermore, under her proposed definition, someone who assented to sex but was being coerced or deceived did not actually consent. If adopted, the definition will make it significantly easier for sexual assault victims to achieve justice through the legal system. For cases that are not dropped, conviction rates for sexual assault cases are on average 40% lower than those for other violent crimes. A working definition could help our country break away from the default of disbelieving victims and help to close the gap of justice.
The lack of a formal definition of the term ‘consent’ in Pennsylvania state law was a large issue for Ms. Caramel and other jurors during the Cosby trial. In his civil deposition, Mr. Cosby testified that Ms. Constand, the plaintiff, did not verbally or physically “say anything” so he continued into “the area that is somewhere between permission and rejection”. According to her testimony, Ms. Constand was passive because of the intoxicants that had been unknowingly administered to her by Mr. Cosby, and was unable to fight, move, or even properly comprehend what was happening to her. While it was clear that Ms. Constand was taken advantage of, with no definition of ‘consent’, the jurors were left to grapple with whether Ms. Constand’s silence constituted legal consent. While Mr. Cosby was convicted, the lack of a formal definition of ‘consent’ was undoubtedly a massive hurdle that the jury had to overcome; one that could have led to a non-guilty verdict for someone who was clearly guilty.
Critics of Ms. Caramel’s efforts to further delineate consent question whether it is practical given the complex nature and language of sex. They argue that sex is nuanced and so will be the the definition of consent, which will make the defining process very slow if even possible. These concerns were vocalized during a recent effort to introduce affirmative language into the recent redrafting of the model penal code; a tool produced by the American Law Institute used by many state legislatures to gauge national updated standards for the penal code. While these arguments are somewhat valid, many believe that a clear cut definition of ‘consent’ is necessary for effective judicial processes.
With careful crafting and dedicated efforts, legislators can most definitely create a standard definition of ‘consent’, and they should. It is imperative that our legal terminology is clear and does not neglect defining the specifics of crimes that may be considered ‘nuanced’ or ‘complicated’. By abandoning efforts to define ‘consent’, legislators would also be abandoning victims of sexual assault. We must urge our country to do all that it can to ensure individuals are treated fairly and empowered by our justice system.