BILL NUMBER: S5521

SPONSOR: SANDERS
 
TITLE OF BILL:

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

 
PURPOSE OR GENERAL IDEA OF BILL:

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SUMMARY OF PROVISIONS:

Section 1 of this legislation defines consent as a "Freely Given, Know-
ledgeable and Informed Agreement."

 
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):

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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 enforce-
ment 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 ulti-
mately convicted of violating. Judge Burke responded, "Use your common-
sense." 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 preda-
tors 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.

 
PRIOR LEGISLATIVE HISTORY:

2022- A6540-A Seawright

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

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EFFECTIVE DATE:
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