Friday, 21 February 2020

The legal definition of consent...

According to reports, one of the first notes the jury in Harvey Weinstein's case sent to the judge, seeking clarification, was a request for the legal definition of consent.

Is anyone else finding this weird? I mean, it's not like a jury of ordinary people would need to ask for the legal definition of "taking something that belongs to someone else" in a theft case, right?

Everyone knows that even if you do it by accident (like forgetting that bag of potatoes on the bottom rack of your grocery cart) and even if you didn't realize it belonged to someone else (like taking some "junk" sitting unattended at the edge of an unfenced property), "taking something that belongs to someone else" has a specific meaning that we all understand. You might not be aware that you've taken something that belongs to someone else, and you might not realize what you're taking belongs to someone else, but everyone can understand the concept of "taking something that belongs to someone else."

You can literally get a toddler to understand what "taking something that belongs to someone else" means, even before they're morally and cognitively developed enough to get why it's wrong to do it. (The little sociopaths.)

The purpose of the law is not just to punish people who transgress it. It's also to put people on notice as to what behavior is acceptable and what behavior is punishable. "Taking something that belongs to someone else" is not always a crime, nor is it always unethical or morally wrong, but I think all of us can wrap our heads around what it is to take something that belongs to someone else. A thing belongs to someone else, and you take it.

Consent is at the heart of sexual assault law, the way "taking something that belongs to someone else" is at the heart of the laws around theft, shoplifting, mugging, burglary, robbery, etc.

And a jury of 12 adults don't know what sexual consent means under the law. This is not okay.

If 12 jurors don't know what sexual consent is under the law, it's entirely possible that any or all of them have criminally violated someone's sexual consent. If 12 jurors don't now what sexual consent is under the law, then how can we hold ANYONE punishable for violating the grey edges of it?

Will Weinstein be acquitted on a technicality? Because hey, he might have violated those women's consent in practice, but not in legal theory?

Or, worse by far for the ordinary person, will Weinstein end up convicted on a technicality? Because he should have understood something that these jurors didn't know themselves until they asked a judge to explain it to them?

I have heard that politics is downstream from culture. This appears to be an example of the opposite--one situation where our legislators have enacted laws, and definitions in law, that few of us really understand. And that's not good news for those of us who have to live in the real world of mundane human interactions, who aren't schooled in the precise definitions in the laws that govern our behavior.

How are any of us to know when we've crossed a line, if that line needs to be defined by a judge to the 12 adults asked to make a determination on it, who theretofore had no idea where it lay?

And here's the thing. This is not like signing a mortgage agreement--something most people do only a few times in their lives, where you bring in a lawyer and everything's written down. This is an agreement to an act that, by random internet nerd estimates suggest, more than 600,000 people globally are engaging in right now, and every second of every day.

Have any of them had access to a judge to ask them what the legal definition of consent is? How many of them are lawyers? And how did the most fundamental human act other than giving birth and dying become so freaking complicated?


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