Bill Cosby is out of prison. But a juror who convicted him wants to help define consent in Pa.
Cheryl Carmel learned during jury deliberations that Pennsylvania has no legal definition of consent. Now she is seeking to change that.
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When Cheryl Carmel was summoned to the Montgomery County Courthouse as a potential juror for Bill Cosby’s 2018 trial, she worried about taking time off from her busy job in cybersecurity.
But her professional experience came into use in an unexpected way weeks later, as she and other jurors decided whether Cosby was guilty of drugging and sexually assaulting Andrea Constand.
Hours into deliberations, the jury asked for the legal definition of consent. There is no formal definition in Pennsylvania law, Judge Steven T. O’Neill told them, instructing the jury to “decide what that means to them.”
Carmel, the jury’s foreperson, said she then shared with her fellow jurors the definition she had memorized from a new European data privacy law. It describes consent as “freely given, specific, informed and unambiguous,” and “a clear affirmative action.”
They went on to convict Cosby. Three years later, the Pennsylvania Supreme Court overturned the conviction — based not on the facts of the case but a non-prosecution deal made by a prior district attorney — and freed Cosby. But Carmel, 62, of Pottstown, is still involved in pushing for a formal definition of consent in state law in Pennsylvania and elsewhere.
”If we have so much work on defining consent on how a business can use our email address and we don’t have a definition on how consent affects a crime, then that seems like something we should be able to fix,” she said.
That issue is complex, however, and doesn’t yet have support from some key legal and advocacy groups in Pennsylvania. Some worry that it could backfire because a specific definition may not fit every situation.
Consent is central to sexual assault cases, and has drawn increased attention as a result of the #MeToo movement, a social reckoning with sexual misconduct. Jurors also asked the judge for a definition of consent before convicting film producer Harvey Weinstein in New York last year. And although the #MeToo movement has played a role in shaping public understanding of consent in sexual assault cases, many states, including both Pennsylvania and New Jersey, still lack legal definitions of the word.
Joyce Short, founder and CEO of the Consent Awareness Network, advocates for states to pass laws clearly defining consent, which she said is “freely given, knowledgeable and informed agreement” — similar terminology to Carmel’s data privacy definition.
Short said she’s focused on helping jurors understand that consent is more complicated than a simple yes or no. Victims who are forced or threatened, for example, aren’t consenting to sexual contact, she said. Victims are also unable to consent if they are unconscious or under the influence of alcohol or drugs, which is accounted for in Pennsylvania law. The Cosby jury ultimately found that Constand was unable to consent to sexual contact with Cosby because she was drugged.
Short has teamed up with accusers of Weinstein and Cosby — including Constand. After the Cosby trial, she reached out to Carmel.
“I have a different perspective from the victims,” Carmel said.
Carmel and Short met with lawmakers in Harrisburg in 2019, but legislation has not yet been introduced. Carmel is retiring this year and hopes to dedicate more time to lobbying for that change.
Legislation introduced in New York earlier this year would insert Short’s definition of consent into state law. No bill has yet been introduced to make a similar change in Pennsylvania.
Sen. Katie Muth (D., Montgomery) said she had planned to introduce a bill in 2019 but put the effort on hold after hearing concerns, including that the Republican-controlled legislature could make unfavorable changes to the definition.
“You don’t want anything bad to come of it, sort of unintended consequences,” she said.
» READ MORE: A timeline of the Bill Cosby case
Muth said there now appears to be more support for the bill, after Cosby’s release from prison thrust the issue back into the spotlight. She said she hopes to draft a new version of the bill before the end of the year.
Donna Greco, policy director for the Pennsylvania Coalition Against Rape, said her group doesn’t have a stance on legislation that would define consent. She said there is concern that a definition of consent could unintentionally hurt victims of sex assault by placing more emphasis on their behavior — which is already probed by defense lawyers and jurors. And it’s a myth that all victims act in the same way, she said.
“Finding the exact words that are going to fit every situation will be difficult,” Greco said. “There is worry that victims’ behaviors will be even more scrutinized.”
Still, Greco said she is open to considering any changes that could help victims. And some work to clarify the meaning of consent could be done by educating the general public, she said, to prevent assaults and help future jurors understand the term.
Karen Steinhauser, a Colorado prosecutor and law professor at the University of Denver, said a definition for consent is included in Colorado law — and she sees it as critical to help jurors reach fair verdicts.
“It would be like when we prosecute somebody for first-degree assault where somebody did something and it caused serious bodily injury; well, there’s a legal definition of what serious bodily injury is,” she said. “I just think that we need to make sure that the jurors are all on the same page.”
After Cosby’s first trial in 2017 ended with a hung jury, one juror said in an interview that he couldn’t get past the fact that Constand had gone to Cosby’s house willingly and brought him gifts. The group had also been confused by the description of the charges, he said, finding them “too legal.”
During deliberations in Cosby’s 2018 retrial, Carmel said, jurors began by breaking down every sentence in the complex description of the charges. The words consent and nonconsent were used several times, which led the jury to ask for a definition.
After Carmel offered her own definition based on data privacy, she said, other jurors who worked in health care also described what consent meant in their field and the group reached an agreement. They then discussed the testimony of each witness, she said, and agreed that Constand was highly credible in her description of being drugged and assaulted by Cosby.
When it came time to deliver a verdict, Carmel was responsible for announcing the decision to the courtroom.
“All I had to say was the word guilty three times but those are the hardest three words I’ve ever said,” she said.
Months later, she returned to the Montgomery County Courthouse in Norristown for Cosby’s sentencing, where she and a few fellow jurors had a chance to meet Constand.
“She hugged each one of us for quite some time,” Carmel said. “We all told her that her credibility and her words was the impact that made the verdict.”
In June, Carmel said, she was busy at work and noticed she was getting lots of messages on her phone — because the Pennsylvania Supreme Court had overturned Cosby’s conviction and ordered his release.
“It really just kind of washed me out,” she said. She released a statement emphasizing that the court’s decision, based on a ruling that a previous prosecutor’s promise that Cosby wouldn’t face charges was binding, didn’t have to do with the jury’s determination of Cosby’s guilt.
And his release hasn’t changed her stance on working to define consent.
“I don’t look at myself as an activist,” Carmel said. “I’m simply a citizen that sees a path to make a small change in our judicial system by amending a law to give a clear definition of a word that’s used in our current laws.”