Episode Transcript
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High listeners. Today we're talking aboutconsent as it relates to sexual assault and
trauma. If this is a sensitivetopic for you, please take care of
while listening, or feel free toskip this one. There are a lot
of great resources in the show notesthat you can also refer to. Welcome
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to Dialogue. I'm Rebecca Sebastian,and I am thrilled to be back after
a longer than summer hiatus. Idid release a short update about that high
us, so if you want togo back and listen to it, it's
the episode before this one, andit's not really an episode. It's just
a short update that I dropped onthe feed to give my listeners a little
more detail about what was going onfor me during that time. So if
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you're curious and you're a long timelistener you wonder where I went, go
back and listen to that one,and thank you for everyone who checked in
on me during that time. Buttoday we're back, baby. Season five
of Dialogue starts now, so thisactually marks my one hundred and forty eighth
interview. I can barely believe it. We hit the three year mark in
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August and we are fast approaching onehundred and fifty interviews here. So to
kick this season off, I decidedthat, based on some breaking news that
happened within the true crime community thissummer, I wanted to start the season
with a series about a topic wehaven't yet explored on Dialogue, and that
topic is consent. Did you knowthat the word consent is used hundreds of
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times throughout penal law in various states, but it is never defined. That
is why I invited today's guest tostart this conversation and this series, the
Complexity of Consent. Please welcome ourfirst guest of the new season the new
series, Joyce Short. Joyce isa woman who has been personally impacted by
sexual assault, but she's used thoseexperiences to affect change in our criminal justice
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system. Joyce's work focuses on combatingsexual assault, changing legislation to protect victims,
and she launched her efforts to conquersexual assault by fighting for desperately needed
laws on consent. Joyce Short isthe author of a book called Your Consent,
The Key to Conquering Sexual Assault,and she's a TEDx talk presenter.
I've linked to both of those inthe show notes. In two thousand and
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nine, she founded an organization calledthe Consent Awareness Network to create the public's
demand for change and to reach outto legislators to enact transformational laws. The
Consent Awareness Network's efforts are supported bysurvivors of high profile cases like Bill Cosby,
Harveywine, Nexium, and more.Please refer to the show notes for
links to her work for more informationabout her and to find out how you
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can become an ambassador for the CANNetwork or how you can support their work
and bring it to your own home, state and hometown. My hope is
that this episode will empower you tounderstand what consent is and then how you
can take that understanding and demand changefrom your local politicians. Thank you,
Joyce Short, for sharing your expertiseand killing the small talk and now the
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complexity of consent. Joyce Short,Welcome to Dialogue podcast. I'm very excited
to talk to you today. Thankyou. It's just wonderful to be here.
When I reached out to you,you rightly said consent is actually very
simple, and yet here we areoften in the gray area confused. So
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why don't we start with your definitionof consent and then tell us a little
bit about your work. It's importantthat people understand that there really is only
one definition for the words the nounconsent. Consent is freely given, knowledgeable
and informed agreement by a person withthe capacity to reason. And this definition
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is supported by Model Penal Code,by Nuremberg Code, by general data protection
regulation, it's supported in Canon lawfor centuries, it's in voting rights law,
and we're seeing it actually being usedin bills that are being introduced right
now for a variety of different crimes. You do a lot of work around
consent as it relates to legislation becausethere's wild variables from state to state even
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and maybe that's what gets confusing,is what's allowed in one state is a
crime and another. But before weget there, why are you so interested
in this work? What brought youto caring about this topic. I'm actually
the survivor of three forms of sexualassault. All three forms were covered by
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Model Penal code, by force,by to rest, and by deception,
and I go over them actually inmy TECHCHS talk so people can understand a
little bit about what that means.But as a survivor, there was no
justice, there was no recourse,there was no relief, and I wanted
to know why, and so Idid the research necessary to figure out what's
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happening here. Why do we havepeople that are sexually assaulted that have absolutely
no recourse and no way to securejustice? And where did your research take
here? What did you find?Well? I found that no state,
no jurisdiction, actually defines consent.You know, consent is a noun,
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and there was absolutely no definition ofthe noun consent in our laws. And
when you ask about why the differencesfrom state to state, it's because there's
no definition. The fourteenth Amendment ofthe United States Constitution grants us all equal
protection under the law, but wecan't have equal protection if the most pivotal
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word in defining what constitutes a crimeis not defined. And we absolutely have
to have that definition in order forus to have any continuity and any consistency.
And that I think those to answeryour question about why all this discrepancy,
and it's because it's not there.So historically, what do you think
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the reason is for that? Isit the patriarchy? Is it because women
are the victims more often historically?And so this was just not at the
forefront when creating these codes and laws. You hit the nail on the head
patriarchy. If you ask me forone word response to why we have this
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problem, it's that our laws werecreated during a time where women were considered
less. Then we were not citizens, we were not recognized as having human
rights. Back in ancient times,rape was only a crime against a virgin
daughter of a tax paying citizen becauseher chastity was his property and the woman,
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the virgin daughter had to fight offany kind of intrusion into her chastity
with all her might or she hadto flee. And that concept is reflected
in our laws even today. Andwe need to understand that consent is a
human right and we have to makeit a civil right. Can you expound
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a crime is a crime because ofthe behavior of the accused, and we
need to recognize that the behavior ofthe accused determines whether or not a sexual
assault takes place, because if theaccused uses malicious influence in order to get
you to do something, in orderto get you to hand over your property,
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to hand over your child, nomatter what it is that they're trying
to get you to do, ifthey're using malicious influence in order to get
you to do something, and maliciousinfluence, could be forced, fear,
fraud. I like to call themthe three f words that should never take
place in sex love. That ifthey're using force, fear, fraud,
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or they're exploiting your incapacity, you'renever consenting no matter what your words or
actions are. Your words and actionsare simply a conveyance. So there's a
noun consent. That noun is freelygiven, knowledgeable and informed agreement by a
person with a capacity to reason.And then there's two consent. Two consent
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is a bird. It means toconvey consent to another person. But when
it comes to sexual assault laws,instead of determining what consent is, our
lawmakers say that your words and actionsdetermine whether or not you consented. No,
I'm sorry. If someone holds agun to your head, you're not
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consenting, no matter what your wordsand actions are. If someone tricks you
into saying those things or doing thosethings, that's fraud. If they're taking
your property through fraud, you're notconsenting. If they're scaring you, threatening
you, you're not consenting. Soin sexual contact, that's the one and
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only time in our justice system thatwe're blaming the victim for their own victimization.
No, when you convey consent,it's because consent, really given knowledgeable
and informed agreement by a person withthe capacity to reason, has to actually
be taking place, and that's attitudinalbehavior of conveying your consent does not reflect
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whether or not you actually consented.And the offender will call them the accused
because they're not the offender until they'reproven guilty in a court of law.
The accused knows whether or not theyused malicious influence. If they use appropriate,
legally acceptable influence, then they're notsexually assaulting you. But if they
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used malicious influence, indeed they're sexuallyassaulting you. And the peculiar thing is
I think you're probably aware that we'veactually introduced a bill in New York State,
and when we got the bill introduced, they did an analysis for us
of how defining consent would affect ourlaws in New York State, and it
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found that the word consent was usedone hundred and sixty two times in the
penal laws of New York and that'sprobably going to hold true in just about
every state your jurisdiction, across thecountry or around the world. One hundred
and sixty two times without a definition, and so we need a definition that's
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general, and we need to understandthat that same consent that affects you when
someone's taking your property also affects youwhen you are being sexually assaulted. There's
no difference. Consent is consent.Okay, So where does the consent must
be verbal argument? Or is thata separate matter between two consenting adults and
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a non criminal at least at firstsituation when both parties are coming together willingly?
Does consent need to be verbal inthat scenario? I don't know.
I just have this verbal consent.I don't want to say it's a myth,
but hang up, it is amyth. Okay, let's go with
a myth, because everything you're sayingsuggests the onus is not on potential victim
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to have verbally consented to anything.Congratulations, you just discovered the great myth
that, unfortunately is being promoted bya lot of well intentioned people around the
world. This concept of express actuallythe words should be expressed and not expressed
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doesn't mean the same thing as expressed. But what they're trying to say is
that yes, you have to sayI consent. However, if you say
you're consenting. But what got youto say you're consenting was forced fear of
fraud or the exploitation of your incapacity. Yeah, the Second Amendment grants us
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all freedom of speech, and governmentdoesn't have the right to step into your
bedroom and tell you what you shouldsay in order to sexual conduct. I
mean that really would be unconstitutional.Right. Are you going to see a
law that says you have to haveenthusiastic consent? You know, there are
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some people that are enthusiastic, thereare some people that are quiet, right,
And it's not what the person says, it's what the offender accused does
in order to secure compliance that determineswhether or not the person consented. So
please let's stop with the explicit verbalenthusiastic consent, expressed consent, affirmative consent.
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That's the other joke. All consentis affirmative. There is no such
thing as unaffirmative consent. That's anoxymoron. So when you say affirmative consent,
you're basically saying a circular circle.Right, It's inherent in consent that
your consent is affirmative. It's aform of agreement. There are actually three
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separate forms of agreement that can occurin sexual contact. One is assent.
Assent means agreement on the face ofit. Another is acquiescence. Acquiescence means
agreement under duress. And then thereis consent, and consent is freely given,
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knowledgeable and informed agreement. So whenyou nod your head, you're always
assenting, okay, But assenting isnot necessarily consent. In fact, in
Missouri law second degree rape, itstates assent is not consent when induced by
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force, duress, or deception.So we have places that we have places
in our laws that recognize from timeto time and place to place, but
they don't necessarily apply it in sexualassault. Model penal code tells us consent
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is ineffective if induced by forced arressordeception, and that's where the language came
from in Missouri's law. But Missouritook it actually a step further. They're
actually more correct than model penal codebecause model penal code says that consent is
ineffective. No, consent doesn't existat all if induced by forced arressor deception.
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Missouri's law tells us that it saysassent is not consent if induced by
forced arressor deception. They're correct.How to Missouri get this right and so
many other places haven't, And ispart of your work trying to make uniform
these laws federally as that you knowfederally opens another candid worms Every state has
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the right to create its own penallaws, and that's why you see around
the United States a difference in sexualassault cases from one state to another.
I can tell you of cases wherepeople are held accountable and tried and convicted
of a crime where in the nextstate what they did would be perfectly legal.
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So we need uniformity. Consent isconsent in all things, in all
crimes. It never differs no matterwhat you're applying it to. So we
hope that by introducing it in federallaw that other states will part that law.
And we have to overcome politics.We have to have such a huge
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demand for doing the right thing amongstthe public that those legislators will be afraid
not to do the right thing.And that's what the Consent Awareness Network is
trying to accomplish. We're trying toaccomplish building the kind of demand that will
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warrant our legislators being comfortable with doingwhat it takes to end sexual assault,
sex trafficking, domestic violence, andall of these sex crimes that rely on
the definition for consent. So whatdo we do? This is exactly the
kind of information I want to makesure has heard on the podcast. And
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I'm sure your book, one ofyour books, your Consent the Key to
Conquering Sexual Assault. I'm sure that'sa place to start. Going to your
website for the CAN network, allof these things will be linked. But
can you tell us a few thingsas voters, as citizens, how do
we create that demand? Well,you hit the nail on the head reading
my book. You know, peoplethat have read my book, tell me
the whole world should be reading thisbook. I got that comment recently from
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Stacy Pinkerton. Stacy was one ofthe survivors of Cosby. We have Cosby
survivors working with us, Weinstein survivorsworking with us, Next for M survivors
working with us, and we needall of the public to get behind this.
So I would strongly urge people pleaseread the book, watch my TEDx
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talk, and once you've read that, call your legislator demand change. You
have four legislators that can make adifference. You have a senator and an
end a state representative in your state. You have a senator and a state
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representative sometimes called a congressman or congresswomanin your state, so you have four
legislators that can make this difference.Read the book, get the language,
you know. I call the booka recipe book because we're all we're trying
to build a franchise here, justlike McDonald's. Instead of flipping burgers,
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we're flipping laws and your consent.The key to conquering sexual assault is the
cookbook. It contains the recipe.If you go into McDonald's for a hamburger
in Washington State, you're going tohave the same burger that you get in
Louisville, Kentucky, or in Birmingham, Alabama, or in New York,
New York. And we have tohave the recipe down path so that no
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matter where you go, consent isthe same thing. And I call malicious
influence the secret sauce in the recipebecause consent, if you understand the consent
is freely given, knowledgeable and informedagreement, then you understand that by using
malicious influence, the person is notgetting your consent. They could be sexually
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assaulting you, but they could notbe seducing you, okay, right,
seduction with me using a form ofinfluence that's legally acceptable. Sexual assault is
using a form of influence that's maliciousand illegal. That seems like a really
important distinction, And it seems it'ssettle. And is that where a lot
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of the I mean that, hesaid? She said, trope is a
trope for a reason. But isthat because there is some subjectivity to it?
I feel like what your work isdoing is trying to remove subjectivity from
this. So these are objective facts. But when a jury or a defense
attorney or a judge look at acase that has gone to trial, there
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is room for interpretation of even lawon you find consent, not once you
define consent. In the Cosby trial, the very first question the jury asked
the judge was what is the definitionfor consent? Is answer was use your
common sense because there is no definitionfor consent in Pennsylvania. Wow. In
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the Weinstein trial, the very firstquestion the jurors asked, what's the definition
for consent? And the judge said, use your common sense because there is
no definition for consent in New York'slaws. So the reason that you get
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that, he said, she said, nonsense, and all the confusion is
because there is no definition for consent. You know, I've had this conversation
with lawyers, with prosecutors, withdefense attorneys, and with judges. And
I recently had a conversation with thejudge that said, Oh my god,
it's like a light bulb just wentoff in my brain. Of course,
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it's about influence. Yeah, it'snot about what he said, what she
said, what she was wearing,how many times they had sex. You
know, you can have a predatoris not a predator all the time.
They don't prey on people all thetime. Predators can have very normal looking
lives, but at some point theybecame a predator. They used malicious influence
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in order to secure what they wanted. And that's why you'll see people running
to the defense of people that arepredators sometimes because their history with that person
is not that they're a predator.Their history with that person and their experience
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with that person colors their view ofthat person, and that's why they defend
them. But just because that personwas nice to you doesn't mean they're nice
to everybody. It is very hardfor us to hold two truths about somebody
that are at odds with one another. And the more I do this show,
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the more I just sit in thegray of everything, like so few
things are all one thing or theother. And this is why I'm calling
it the complexity of consent. Canan exchange between two parties begin consensually and
can one party leaven believe it wasnot? Ultimately? I feel like that
can happen in that middle, right, that can change quickly. Okay,
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So let's use the real, thereal definition of consent there in order to
answer your question. Yes, let'scan it begin consensually and then change?
Yes, because consent has to befreely given at some point. If you're
no longer freely giving it, youchange. If you've changed your mind in
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the moment, Yeah, and you'rerevoking your consent, but that person continues
this sexually assaulting. So yeah,you can begin as you've consented, but
then you change your mind and youdecide, no, I don't want this
any longer. I'm going to revokemy consent and that person doesn't respect your
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wishes, then that person is sexuallyassaulting you from that point forward. But
here's the thing that people ask meall the time, what happens two weeks
later, Right, what happens?Can they change their mind two weeks later,
you can understand with distance and timethat you actually did not consent.
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You may have assented, you mayhave agreed on the face of it,
wow, but ultimately you found outthat that person defrauded you, or that
person tricked you. Look at LarryNasser's patience. Right years later, they
recognized, Hey, this guy toldme what he was doing was medically necessary,
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but it wasn't. It was tosatisfy some sexual perversion on his part.
Would you say that that person changedtheir mind. No, they recognized
that they didn't consent. What theygave was a sent agreement. On the
face of it. If the personis agreeing because they're in fear, they
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might not recognize what's motivating them atthe time. But when they take a
step back and they see the forestfor the trees, then they might recognize,
I was scared to death. That'sthe use of fear force, fear
fraud. You can't do that.So would you say that that person changed
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their mind simply because they recognize thatthey really didn't consent. Can you go
back and say, now it waslousy sex, I changed my mind No,
that is not acceptable. If youactually did consent, freely, give
knowledgeable and informed agreement, and youhad full capacity at the time to reason,
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you can't go back two weeks laterand say, nah, nah,
I wasn't happy with it, itwasn't good for me. That's not consent.
Right. There's regret, which issomething different. Yes, you can
regret. Regreting is not or notconsented. I just want to go on
the like like a little devil's advocatehere. I feel like this is what
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undermines believing victims, is that thereare people who maybe have a retroactive regret
and want to hurt someone who hurtthem, but maybe it wasn't a situation
of assault. And so now there'sthis this cultural shift where you know,
we can't believe all these women.Surely they're not all telling the truth or
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men as the case may be,depending on the alleged accused. How do
we combat that? We talk alot about believing victims on my show.
Do you start from a place ofbelief and investigate and look at the facts
of the scenario, What about theveracity of the accuser and their truth telling
and a situation? Part two?What are the statistics. How often are
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people falsely accusing people of these crimeswhere it isn't true? Is that not
really happening? Is this another myththat we need to debunk. I always
start from a position to due process. Okay, However, if our laws
are deficient, people can't get dueprocess right. And that's why I'm fighting
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so hard to create due process thatactually works. And the stance on false
accusation is really very, very low. The National Violence Resource Center actually compiles
the statistics and they say that onlytwo to ten percent of claims are false
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claims, and included in those claimsin that two to ten percent are simply
claims where the victim walks away fromthe prosecution. They may walk away from
the prosecution because they think it's hopeless. Right, So I don't believe that
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ten percent is accurate. I believethat it's closer to two percent because what
it takes to actually come forward tothe police is really a strength of character
in face of the single most horrificcrime that could happen to you in your
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lifetime. And people say, no, it's murdered. No, I'm talking
about in your lifetime. Okay,when you're murdered. You're dead. So
the most heinous crime that can happento you in your lifetime is a sexual
assault. Rate. Yeah, andso in face of this heinous thing that
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happened to you, if you havethe courage to walk into a police precinct
and report what happened to you,that really takes an extraordinary amount of courage.
And so do I believe most peoplethat walk into a police precinct and
claim that they were raped, Ido believe most of them. Do I
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believe that they will get due process? I do not. So do I
encourage people that are raped necessarily towalk into the police precinct. You know,
I recommend to you that you writedown what happened to you and give
some thought to whether or not youwant to go through this process when you
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walk into the police precinct, whetherit be today or whether it be five
years from now, based on thestatute of limitations, right, no matter
when that is, you're going tobe faulted for having a degraded memory about
what happened to you. And that'swhy the first thing that I recommend to
people that have been sexually assaulted isthat you write it down. The other
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reason that I tell people to writeit down is because when you're undergoing a
violent circumstance or a traumatic circumstance,your brain has chemistry to protect you,
and that chemistry makes it difficult forwhat happens to penetrate your consciousness in a
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linear fashion, and that can comeback to you as you are trying to
make sense of what happened to youthat you couldn't have found your keys after
you unlocked the door. Yeah right, you know all of these things that
you know, you must be ableto create that linear pathway for yourself in
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order to actually write it down,and when you see it written down,
you'll be able to recognize that thereare things that are out of that linear
pathway and then explore, well,what happened there, you know, put
it all in a linear order,and when you do see Unfortunately a lot
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of times when people go to thepolice, and this is something that you
know, we keep hearing about traumainformed interview by the police. The police
are beginning to recognize that when theyhave a rape victim or a sexual as
solved victim that they've experienced a traumaand their ability to tell them what happened
in a linear fashion may be compromised. Yeah. So in big cities,
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New York City, Chicago, youmay have officers who have gone through training,
trauma informed training in order to betterdeal with people who have had this
type of trauma. In a smalltown, you may not. And so
you're going to need to assess howyou handle what happened to you based on
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what you think the supports can bein that area. And I would wholeheartedly
recommend that people that are sexually assaulted, if you can hire a lawyer,
go to get get an advocate,get a lawyer, get someone to help
fight for you for your rights,because the politics in your town, in
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your jurisdiction could work against you.I can't tell you how many people I
have gone to police precincts with whohave been involved in advocating for them where
the jurisdiction itself just simply refused torecognize that a crime of this magnitude could
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happen in their jurisdiction. They mighthave been a tourist town where they wanted
to ensure that tourists were not madeaware that these types of crimes were taking
place. You know, it couldbe for many many different reasons that the
jurisdiction itself is working against actually recognizingthe crime. That's a really great advice,
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but it's also really discouraging to knowthat that's on the victims list of
responsibilities after the fact. Once youdefine consent in our laws, you will
have the ammunition that's necessary to fightfor your rights yea, and to ensure
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that this is not a case ofwhat you said and what you did,
but this is a case of whatdid someone do to you? And that's
the difference and why we absolutely musthave the ability to prosecute these cases properly.
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We change nothing until we change ourlaws. And that's why I implore
everyone that's listening to their podcast understandwhat consent is. Call your legislators,
demand change, because only once weactually understand what consent is in our laws
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will we be able to secure justicefor people that are victims and hold sexual
predators accountable for their actions. Wow, this is eye opening, so helpful.
You have just some great tangible thingswe can put our hands to and
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our actions to and sink our teethinto. You've simplified something in my mind
that can be muddy. So Iam so grateful for your time coming on
to talk to us today, andI just really do encourage everybody to read
your Consent The Key to Conquering SexualAssault and get on the website for the
CAN network before you go, ifyou would. I do ask all my
guests this teeny tiny question, whatdoes justice mean to you? You know,
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it's one thing to be harmed bya person, but it's another to
be harmed by society. And whensociety doesn't provide you with the recognition for
the harm that you suffered, it'sinvalidating. So for me, justice is
the restoration of human dignity by society'srecognition and validation of the harm that you
(35:32):
suffered. Beautiful, And we can'thave justice until we recognize what consent is.
And you know, justice heals.Justice is what enables victims to become
survivors. O good. Perfect,It's important and society has got to get
(35:52):
on the bandwagon. Yeah. Also, we you know, we've worked with
the legislators all around the country.If somebody bring the content train to their
area, yes to email me atinfo at Content Awareness dot net and we'll
be happy to do that. Perfect. Joyce, thank you so much for
(36:13):
killing a small talk with us.Keep up the great work, and I
do hope we could meet in personin New York sometime and continue the conversation.
Love to do that. Thanks forhaving me on. Dialogue is a
yellowtape media production audio engineered by JasonUssrie and produced, posted, and edited
(36:34):
by me, Rebecca Sebastian. Ifyou love the podcast, please consider becoming
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Rebecca Sebastian. For more information orto drop me a note, visit Rebecca
(36:55):
Sebastian dot com. Until next time, thank you for listening and killing the
small talk.