Reason reports that the American Bar Association’s House of Delegates recently rejected a resolution to support the affirmative consent standard, which sustains that a sexual encounter should be considered an assault unless both parties received a clear yes before all sexual acts.
The ABA’s House of Delegates meets annually and decides to vote on various proposals which can become formal policy of the organization. The affirmative consent proposal was rejected by a vote of 256-165.
The resolution urged state legislatures 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” and “provide that consent is expressed by words or action in the context of all the circumstances,” according to a report from the The Wall Street Journal:
Advocates of due process have firmly criticized this proposal. The National Association of Criminal Defense Lawyers declared that it is a “radical change in the law” that “assumes guilt in the absence of any evidence regarding consent . . . merely upon evidence of a sex act with nothing more.” The associate argues that by “requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent” , any law derived from this proposal would be in violation of the Due Process Clauses of the Fifth and 14th amendments.
Scott Greenfield, a criminal defense lawyer based in New York, was blunter in his assessment of this resolution. For him, it would “result in the conviction of innocent men.”
By establishing affirmative consent as the standard, sex would be criminalized in cases where it cannot be easily proven that both parties explicitly consented to their sexual acts. At the universities which affirmative consent has been implemented, the burden of proof has effectively shifted to the accused. In these cases, the accused could face expulsion and a lifetime of social ostracization unless they can demonstrate that there was an indisputable affirmation at each and every stage of a sexual encounter that neither individual remembers.
Thankfully, this standard did not become a part of ABA policy. Such a move would have opened up the floodgates for major infringements on the right to due process in America.