It’s been a few years since the dangerous “affirmative consent” standard has made headlines. Many colleges and universities began adopting the standard about half-a-decade ago, following the state of California’s example.
The wording changes from state to state and from school to school, but it all boils down to narrowly defining consent in such a way that it is impossible for anyone to actually have – and prove – consensual sex. These policies inevitably shift the burden of proof from the accuser to the accused, meaning the accused has to prove they obtained consent for an encounter that they saw at the time as consensual.
Proponents of the policies have never said how accused persons would be able to defend themselves from an accusation under “affirmative consent.” Without video evidence that one obtained consent throughout every physical and sexual interaction, the accused would have no way to defend themselves. Even that would be risky, since someone who claims they were too drunk to consent to sex could also say they were too drunk to consent to being recorded. Given how much weight an accusation holds in today’s “believe all women” society, a case of he said/she said would most likely default in favor of the accuser.
Legal groups, law professors, and attorneys were critical of the “affirmative consent” standard, yet schools and states adopted it anyway.
In 2015, the American Law Institute at its annual meeting debated the standard ahead of what was supposed to be a vote on adopting a new section of the model penal code. The criticism against the standard outweighed the support, and the vote was delayed. A year later, ALI again attempted to hold a vote on a revised draft, yet further criticism delayed the vote again. In 2017, opposition precluded the group from adopting the standard once again. The draft was not included in ALI’s agenda in 2018.
But now the American Bar Association (ABA) appears to be picking up where ALI failed. At their annual meeting this week, the ABA will vote on a resolution that would urge state legislatures to adopt “affirmative consent” as the criminal definition of consent. Here’s the resolution:
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.
As Samantha Harris of the Foundation for Individual Rights in Education noted, the resolution essentially makes “sex presumptively nonconsensual unless and until someone can produce evidence of consent.” This pushes the burden of proof onto the accused, who likely believed they had consensual sex and therefore did not need to keep documentation to prove it.
The National Association of Criminal Defense Lawyers condemned the ABA’s resolution for this very reason.
“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 group wrote. “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 opposed ALI’s efforts, which are cited in the ABA’s resolution.
It is only sexual assault where the burden of proof has been flipped in recent years. No other crime requires the defense to prove a negative.