American Law Institute Rejects ‘Affirmative Consent’ Standard for Model Penal Code

May 18, 2016

According to a report today in The Washington Times, the membership of the American Law Institute (ALI) voted overwhelmingly against amending ALI’s Model Penal Code (MPC) to include an “affirmative consent” standard in its section on sexual consent. The MPC is an influential, decades-old attempt to standardize common state criminal laws across the United States, and has been adapted for use (at least in part) by most of the 50 states.

The Times reports:

In a voice vote at the American Law Institute’s 93rd annual meeting at the Ritz-Carlton, Washington, D.C., the vast majority of an estimated 500-member crowd declined to amend the Model Penal Code to define sexual consent on an affirmative basis.

The MPC is a leading guide for state legislatures to follow when standardizing their penal codes. One of the items up for debate at the annual meeting was how to define “consent” in the context of sexual assault.

The vote comes less than a week after a large number of ALI members wrote a letter urging ALI to reject the affirmative consent standard, on the grounds that it unfairly shifts the burden of proof to an accused party to prove his or her innocence:

“Whether it is a burden of going forward, a burden of proof, a burden to establish an affirmative defense or something else, the defendant has been burdened to disprove guilt,” they wrote.

Hopefully, colleges and universities—which have increasingly been adopting affirmative consent standards in their own sexual misconduct policies—will take notice of ALI’s decision.

Campus issues aside, ALI’s decision is a relief because it is (or should be) almost unthinkable that in a criminal court, where the defendant’s physical freedom is at stake, an accused person would effectively have to prove him- or herself innocent of sexual assault charges. But even in campus judiciaries, this burden-shifting can have a permanent and harmful effect on students, whose ability to obtain a college degree and, ultimately, a job may be dependent on their ability to prove themselves innocent of sexual misconduct charges. A Tennessee court judge put it well, in an opinion reversing the University of Tennessee at Chattanooga’s decision to expel a student for sexual misconduct using an affirmative consent standard:

[The accused] must come forward with proof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to an activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.

The ALI’s rejection of affirmative consent as a standard for adjudicating claims of sexual assault is a positive statement about the importance of due process, which is too often neglected in the assessment of how to effectively address sexual assault on campus and beyond.