BILL NUMBER: S4196

SPONSOR: SANDERS
 
TITLE OF BILL:

An act to amend the penal law, in relation to the definition of consent

 
SUMMARY OF PROVISIONS:

Section 1 of this legislation defines consent as a "freely given, know-
ledgeable and informed agreement."

 
JUSTIFICATION:

The word consent appears in every provision on sexual assault throughout
Section 130.00 through 130.96 of New York State's Penal Code; except
under "Definitions." Thirteen definitions are identified, but consent,
the pivotal element in whether or not a sexual assault or rape was
committed, is missing. 130.05 describes "lack of consent," but stating
what consent is not fails to define what consent actually is. Society,
law enforcement, and jurists all need to know.

              

The authorities failed for several years to take action against Harvey
Weinstein for reported sex acts for which his victims alleged, he did
not have their consent. The United States Bureau of Justice Statistics
reports that on average, sex crimes take place every 73 seconds. We must
stop this rising trend by clearly defining what consent is; thereby
empowering our law enforcement and prosecutors to take action.

The jurors in the Harvey Weinstein case asked Judge James Burke "What is
the definition for consent." The word "consent" appeared five times in
the statutes Weinstein was ultimately convicted of violating. Judge
Burke responded, "Use your commonsense." His response was almost identi-
cal to the response of Judge Steven O'Neill 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."

Failure to define consent creates disparate outcomes in convicting sexu-
al predators as each jury grapples to create its own definition with no
guidance from New York State's statutes. This vital concept cannot be
left to chance. Conviction should be based on the evidence presented at
trial, not on whether the jury grasps what actually constitutes the
crime.

With no guidance about consent from Judge O'Neill, the initial jury for
Cosby's case could not agree on a finding of guilt or innocence.  The
foreperson for the second jury, however, was a cyber security expert
familiar with the definition for consent in GDPR. She was able to
explain this definition to the jurors who rendered a guilty verdict.
Correctly defining consent in New York's laws will clarify what is
lawful or illegal sexual conduct, guiding behavior, and making it possi-
ble to hold sexual predators accountable. A consistent definition must
be applied in order to provide equal protection from sexual assault
under New York State's laws.

 
LEGISLATIVE HISTORY:

2021-22 REFERRED TO SENATOR CODES
2021-22 referred to assembly codes

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become law.