The American Law Institute, an influential organization of law professionals that devises model revisions for various parts of the law, has trained its sights on sexual assault for the past few years.
Last summer The New York Times‘ Judith Shulevitz wrote about the controversy that its early draft provoked among some institute members, who saw its endorsement of “affirmative consent” and the criminalization of “touching” even clothed body parts (like a sudden romantic embrace) as a license for prosecutorial abuse, not just shenanigans by Title IX campus bureaucrats.
Another embarrassing problem: The draft appeared to say that physically disabled people cannot legally consent to sex at all.
The institute made some slight changes in response, but its members are raising such hell that the group has scheduled another meeting for March to consider further revisions, according to an email provided by the due-process advocacy group Stop Abusive and Violent Environments.
Law Prof. Kevin Cole of the University of San Diego is helping lead the opposition, and earlier this month he wrote the only known scholarly review of the institute’s drafts.
Cole’s review said that slight changes (such as replacing “affirmative consent” with “contextual consent”) don’t overcome the basic problem with the drafts – their use of a “tort negligence standard for criminal liability” rather than the “subjective liability” standard for criminal acts that is common in criminal law.
“Moreover, changes since the April  draft raise new questions about the special provision on sex with intoxicated partners,” Cole said in the abstract.
In a blog post Friday, Cole said that “multiple ALI members” gave him a memo to the ALI Council signed by more than 80 members that opens with this hypothetical scenario:
A 35 year old, Mid-level Manager (“MM”) has been taking Ritalin since junior high school because it aids focus and concentration. Every few months, MM goes to the prescribing physician for a review of the effectiveness of the dosage and for a prescription renewal. At each visit, the Physician’s Assistant (“PA”) takes MM’s pulse, blood pressure and other vital signs. Both MM and PA are fully competent adults. Over time, MM and PA develop a deep affection and commence a fully wanted, consensual sexual relationship. Under the definition of “consent” in newly proposed Section 213.0(3), PA is a per se felon.
The latest draft doesn’t just create “whole new categories of ‘statutory rape'” for “consenting, competent adults,” the memo said – by using the contractual word “agreement” instead of the broader term “willingness,” the draft implies that sex is a business relationship.
There’s only one conclusion to be drawn from the drafts of this proposed revision being so easy to caricature: Proponents of guilty-until-proven-innocent and vast prosecutorial discretion are leading the way, hoping that their mantra of “believe the survivor” is enough to guilt-silence those members of the legal community who care more about the core principles of the American justice system than academic fads.