In just a few days, the American Bar Association will consider whether to adopt a resolution urging state legislatures to adopt a criminal-law definition of consent similar to the “affirmative consent” standard increasingly popular on college campuses. Given the ABA’s reputation and influence, it would be disastrous for due process if this resolution were to pass.
Here is the resolution (emphasis added):
RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.
By making sex presumptively nonconsensual unless and until someone can produce evidence of consent, affirmative consent standards effectively shift the burden of proof to accused parties to prove themselves innocent. For this reason (among others), the National Association of Criminal Defense Lawyers vigorously opposed the resolution in a statement issued on July 25. NACDL writes:
NACDL opposes ABA Resolution 114 because it shifts the burden of proof by requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent. The resolution assumes guilt in the absence of any evidence regarding consent. This radical change in the law would violate the Due Process Clause of the Fifth and Fourteenth Amendments and the Presumption of Innocence.
The NACDL also points out that this definition would necessarily undermine the Fifth Amendment right to remain silent, since “[t]he resolution will often force the defendant to testify in order to present evidence that consent was expressed.”
Three years ago, the prestigious American Law Institute considered revising its influential Model Penal Code to include an affirmative consent standard. The ALI’s membership overwhelmingly rejected that proposal. The proposed ABA resolution glosses right over that fact, noting simply that “the ALI revision of the [Model Penal Code] is not yet final” — despite the fact that, as the NACDL notes, “it is final as far as affirmative consent goes — the concept was rejected in a landslide vote.”
Affirmative consent standards are already common in campus disciplinary proceedings. On campus, not only has affirmative consent proven confusing, but the state of due process and fair procedure is so bad that over the past eight years, more than 500 accused students have filed lawsuits alleging that they were not afforded even the most basic procedural protections before being found responsible for sexual misconduct. As high as the stakes are on campus — where students found responsible face the loss of educational and job opportunities as well as permanent stigma — they are higher still in the criminal context, where those found guilty face imprisonment.
We hope that the ABA’s House of Delegates will reject this resolution as a grave threat to the due process rights of those accused of one of society’s most serious crimes. FIRE will keep you updated on this developing story.