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  • 25.06.2018

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Assault laws in focus amid Weinstein saga
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25.06.2018

Assault laws in focus amid Weinstein saga

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For two months now, as accusations of sexual misconduct have piled up against Harvey Weinstein, the disgraced mogul has responded over and over again: "Any allegations of non-consensual sex are unequivocally denied."

Consent is a concept central to law on sexual assault, and will likely be an issue in potential legal cases against Weinstein, who is under investigation by police in four cities, and others accused in the current so-called "reckoning."

But the definition of consent - namely, how it is expressed - is a matter of intense debate: Is it a definite "yes," or the mere absence of "no"? Can it be revoked? Do power dynamics come into play? Legally, the definition varies widely across the US.
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"Half the states don't even have a definition of consent," says Erin Murphy, a professor at New York University School of Law who's involved in a project to rewrite a model penal code on sex assault.

"One person's idea of consent is that no one is screaming or crying. Another person's idea of consent is someone saying, 'Yes, I want to do this.' And in between, of course, is an enormous spectrum of behaviour, both verbal and non-verbal, that people engage in to communicate desire or lack of desire."

"It's pretty telling," Murphy adds, "that the critical thing most people look to understand the nature of a sexual encounter - this idea of consent - is one that we don't even have a consensus definition of in our society."
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Many victim advocates argue that a power imbalance plays a role. In nearly every instance, the allegations in recent weeks came from accusers who were in far less powerful positions than those they accused - as in, for example, the rape allegations that have surfaced against music mogul Russell Simmons, which he denies.

"You have to look at the power dynamics, the coercion, the manipulation," says Jeanie Kurka Reimer, a longtime advocate in the area of sexual assault. "The threatening and grooming that perpetrators use to create confusion and compliance and fear in the minds of the victims. Just going along with something does not mean consent."

Many Weinstein accusers have spoken about that uneven dynamic. For years Weinstein was one of the most powerful men in Hollywood, and most of his alleged victims were women in their 20s, looking for their first big break.
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A number have indicated that his power - and fear of his retribution, both professional and physical - blunted their ability to resist his advances.

Several US states have passed laws requiring affirmative consent - going further than the usual "no means no" standard to require an actual "yes," though not necessarily verbal. Among those states: Wisconsin, California and Florida. In Florida, consent is defined as "intelligent, knowing, and voluntary consent and does not include coerced submission."

The varying definitions of consent can lead to confusion among the people who most need to understand them.
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