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  • Reverend James Squire

80 to 90 Percent and 68 Seconds

There were transgressions during the Tuskegee Experiment which identified 600 black males to be used in a clinical trial regarding syphilis where medications were withheld. Doctors could then examine the nature of the progress of the disease. Researchers said they were investigating bad blood. It was sponsored by the United States Health Service in 1932. This terrible situation led bioethics people and others to require consent be part of our legal system. We take for granted when we must give consent for, among other things, a surgical procedure to be done as well as clinical trials of any kind.

It was based in an important bioethics initiative that transparency was needed to assure us that we would not be “used” by others gaining information or data. We also are better able to address any issues where an individual can claim that they didn’t know the ramifications of procedure.

We solved that problem, but we have another big problem that still has not been addressed to be used in our legal system. We don’t have a definition of consent between two people who have sex. The word, consensual, is sometimes used when talking about consent between two people. Implied is that they both agree which is subject to interpretation.

Consent for medical procedures is easy to do. Read a paper describing the procedure and possible problems and then sign it. Why is it so difficult to come up with a definition for sexual assault? Al Vernacchio, a sex educator at Friends Central School in the Philadelphia area, received a Ford Foundation Award of $250,000 to address the issue of consent. He didn’t seek a legal definition of consent, but received the grant to foster an environment for responsible sex. He has based his approach on the need in our culture to ask for more permission in anything that relates to our body, property, or reputation. His program is referred to as Healthy Relationships and Consent Education. I like his cultural response, but still no definition per se.

Both the trials of Bill Cosby and Governor Cuomo found the respective jurors looking for a definition that would be universal and therefore helpful to them in making their decision. Let’s remember that Crosby was released based on a previous prosecutor’s promise. It wasn’t because of a lack in definition of consent although the jurors in his trial indicated that they would be helped by such a definition. The judge told the jurors to come up with a definition that they all could agree on. Talk about passing the dilemma on to others!

The problem rests in the fact that there are too many variables in sexual assault accusations.

We will assume that consent in this blog is about men assaulting women, knowing that assault can occur between two men and between two women not to mention a woman assaulting a man. It seems impossible to get a one size fits all definition. Drugs and/or alcohol can play a role. Context and the situation itself play a role as Constand went to Crosby’s home where the assault occurred. She also brought him gifts.

Cuomo constantly said that he didn’t do anything wrong. Should touching a woman’s breast over her bra be in the same category as rape? There are various degrees of assault.

When a case goes to trial what usually holds the most clout is the woman’s statement as the “eye of the beholder.” If the woman says she is assaulted, she holds the most power in the legal arena as it doesn’t matter what the man intended. Think Cuomo. It is how it is received. Think his victims. This fact is why mothers and fathers of boys are so tuned into what might happen to their sons. I talked with a nurse this morning who said she had “the talk” with her son before he went to college and also on every occasion when she talks to him by phone. They would be “guilty until proven innocent.” It is even more difficult for women caught up in these scenarios as they speak about very personal matters.

Given the many variables in what constitutes assault, “the eye of the beholder” will remain the gold standard. The variables will still continue to inform legal issues. This was seen that the issue that withheld a quick guilty decision in the Crosby guilty verdict was that Constand went to his home.

There is a statistic that may be more helpful to know in the long run of helping address the fact that every 68 seconds someone is sexually assaulted and 80 to 90 percent of assaults are between people who know one another. This is data from RAINN, a network that tracks rape, abuse, and incest. Instead of looking at a law, let’s do a cultural change such as the one that Al Vernacchio recommends but to add something that may really solve this problem to a higher degree.

It could also help with legal trials. One of the things that I learned over the years is that for big picture issues students would go to their parents. They would go to friends and trusted adults for issues that rest in their culture of adolescence that they didn’t feel that their parents would understand. I would always subscribe to the approach that ultimately parents need to in be included in solving a problem and it is the role of the friend to go to a trusted adult who could inform the parents and bring them into the conversation. This, of course, could be done directly to the parents by the friend. Confidentiality is always an issue as well as whether the person would possibly hurt themselves or others. You should always inform people when you are consulting with someone else to encourage trust.

Remember that 80 to 90 percent statistic and “every 68 seconds!” Why not get that statistic out as a public health issue? We have done it with vaccinations. The problem of assault hasn’t gone away. Every parent should be addressed so that parents don’t think that this is encouraging sexual intercourse with the opposite gender regarding their son or daughter. Actually, at the Episcopal Academy we required parents to adhere to our policy that they would support honorable behavior by both parents and students. Yes, there is the issue of what parents do is not our business as a school. However, this is the same thing as pledging not to serve alcohol to minors.

So, every mom and dad should have the “talk” with their son or daughter. And here is the hard part which is why we need everyone doing this. If you are thinking about having sex with______, make sure that a conversation occurs about that BEFORE AND NOT AFTER. The parent can appeal to “every parent should be doing this to protect our children.” It is the same at one level that you are telling them to not drink and drive which is something that most of the adolescence I taught would get. This “talk” would have to go to all the people in our country. Kids buckle up when it became a law. I realize a discussion is more personal when it is about sex but very much needed.

Can you imagine this scene is a courtroom? The judge asks, “John, did you and Jane have a conversation about sexual expectations.” For adults the question would remain the same. There would be resistance to this like no smoking in restaurants or driving with seatbelts, or requiring people to get the vaccine. But those initiatives worked. 80 – 90 percent and 68 seconds say that it is the least we could do! If I were a lawyer, I would love to know the answer to that question, “Did you discuss it?” when I am in the courtroom as I address both parties involved. The answer may be the best evidence.

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