Notable real-world account of efforts to reform sexual offense laws in Pennsylvania

Especially in the wake of our wonderful legislative drafting role-play, I found this new Philadelphia Inquirer article quite interesting.  The piece's full headline highlights its coverage: "Bill Cosby is out of prison. But a juror who convicted him wants to help define consent in Pa.: Cheryl Carmel learned during jury deliberations that Pennsylvania has no legal definition of consent. Now she is seeking to change that."  I recommend the lengthy piece in full, and here are excerpts:

When Cheryl Carmel was summoned to the Montgomery County Courthouse as a potential juror for Bill Cosby’s 2018 trial, she worried about taking time off from her busy job in cybersecurity.  But her professional experience came into use in an unexpected way weeks later, as she and other jurors decided whether Cosby was guilty of drugging and sexually assaulting Andrea Constand.

Hours into deliberations, the jury asked for the legal definition of consent. There is no formal definition in Pennsylvania law, Judge Steven T. O’Neill told them, instructing the jury to “decide what that means to them.” Carmel, the jury’s foreperson, said she then shared with her fellow jurors the definition she had memorized from a new European data privacy law.  It describes consent as “freely given, specific, informed and unambiguous,” and “a clear affirmative action.”

They went on to convict Cosby.  Three years later, the Pennsylvania Supreme Court overturned the conviction — based not on the facts of the case but a non-prosecution deal made by a prior district attorney — and freed Cosby.  But Carmel, 62, of Pottstown, is still involved in pushing for a formal definition of consent in state law in Pennsylvania and elsewhere.  ”If we have so much work on defining consent on how a business can use our email address and we don’t have a definition on how consent affects a crime, then that seems like something we should be able to fix,” she said.

That issue is complex, however, and doesn’t yet have support from some key legal and advocacy groups in Pennsylvania.  Some worry that it could backfire because a specific definition may not fit every situation.

Consent is central to sexual assault cases, and has drawn increased attention as a result of the #MeToo movement, a social reckoning with sexual misconduct. Jurors also asked the judge for a definition of consent before convicting film producer Harvey Weinstein in New York last year. And although the #MeToo movement has played a role in shaping public understanding of consent in sexual assault cases, many states, including both Pennsylvania and New Jersey, still lack legal definitions of the word.

Joyce Short, founder and CEO of the Consent Awareness Network, advocates for states to pass laws clearly defining consent, which she said is “freely given, knowledgeable and informed agreement” — similar terminology to Carmel’s data privacy definition. Short said she’s focused on helping jurors understand that consent is more complicated than a simple yes or no. Victims who are forced or threatened, for example, aren’t consenting to sexual contact, she said. Victims are also unable to consent if they are unconscious or under the influence of alcohol or drugs, which is accounted for in Pennsylvania law. The Cosby jury ultimately found that Constand was unable to consent to sexual contact with Cosby because she was drugged.

Short has teamed up with accusers of Weinstein and Cosby — including Constand. After the Cosby trial, she reached out to Carmel. “I have a different perspective from the victims,” Carmel said.  Carmel and Short met with lawmakers in Harrisburg in 2019, but legislation has not yet been introduced.  Carmel is retiring this year and hopes to dedicate more time to lobbying for that change.  Legislation introduced in New York earlier this year would insert Short’s definition of consent into state law.  No bill has yet been introduced to make a similar change in Pennsylvania. 

Sen. Katie Muth (D., Montgomery) said she had planned to introduce a bill in 2019 but put the effort on hold after hearing concerns, including that the Republican-controlled legislature could make unfavorable changes to the definition. “You don’t want anything bad to come of it, sort of unintended consequences,” she said.  Muth said there now appears to be more support for the bill, after Cosby’s release from prison thrust the issue back into the spotlight. She said she hopes to draft a new version of the bill before the end of the year.

Donna Greco, policy director for the Pennsylvania Coalition Against Rape, said her group doesn’t have a stance on legislation that would define consent. She said there is concern that a definition of consent could unintentionally hurt victims of sex assault by placing more emphasis on their behavior — which is already probed by defense lawyers and jurors. And it’s a myth that all victims act in the same way, she said.  “Finding the exact words that are going to fit every situation will be difficult,” Greco said.  “There is worry that victims’ behaviors will be even more scrutinized.”

Meanwhile, in the same state just a few weeks ago, the Governor introduced reform bills that made this headline: "Wolf targets ‘corrosive’ sexual violence at colleges, universities with package of bills."  Here is how this article begins:

Gov. Tom Wolf is spearheading a package of legislation aimed at combatting sexual violence on college campuses.  The four bills would, among other things, require clearer policies about sexual consent and information on counseling and protective services for victimized students.  Middle and high schools would also have to provide anti-sexual violence education.  “We cannot accept a culture in our colleges or in our commonwealth that allows sexual violence to continue,” Wolf said Monday.

Wolf first signed off on rules changing how higher education institutions handle sexual assault in 2019. Pennsylvania college students can now anonymously report sexual assault and other violence — and they can’t be punished if they were drinking or using drugs at the time. Since 2016, his administration has offered schools millions of dollars in grants to enact plans to address the problem.

Data shows a broad swath of higher ed students have dealt with sexual violence. At Penn State’s University Park campus alone, nearly a fourth of its 40 thousand-strong student body said in 2018 they experienced some kind of sexual assault while studying there.

Mirroring laws already on the books in states like California and Illinois, the governor and Democratic lawmakers want to make affirmative consent policies standard practice at Pennsylvania colleges and universities. Under that kind of policy, both parties have to agree to a sexual encounter rather than one person being required to say “no” to that experience.