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American Bar Association mulls campus sex rules for criminal code

‘Disastrous for due process’ if resolution passes

On college campuses, accused students often must prove they obtained “affirmative consent” from their partners before and throughout sexual activity. In a few states, it’s the law for college students.

The American Bar Association, which sets academic standards for law schools and recommends legislation, is deciding whether it should be the law for everyone.

Criminal lawyers and advocates of due process are urging the ABA to reject a resolution that they say would flip the burden of proof from the government to the accused in criminal cases.

Mandating affirmative consent would functionally mean the end of the Fifth Amendment right against self-incrimination, they argue, by requiring the accused to testify of their innocence.

Resolution 114 is under consideration by the ABA House of Delegates at its annual meeting in San Francisco this week. It would urge 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.”

MORE: Lawyers object to attempt to quietly redefine sexual assault

It would further provide that “consent is expressed by words or action in the context of all the circumstances.” The resolution asks courts to instruct juries that an alleged victim did not consent simply because that person “did not resist, verbally or physically, to a specific act.”

Neither the resolution nor the accompanying report define “sexual contact.” The vagueness of the definition could empower the government to prosecute defendants for failing to get explicit permission from their spouses before adjusting sexual positions, even if the spouse physically cooperates, for example.

“Given the ABA’s reputation and influence, it would be disastrous for due process if this resolution were to pass,” Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education, wrote in a blog post Monday.

Opponents of the resolution have history on their side: Another prominent legal group voted down a similar resolution three years ago.

Cites heavily disputed theories of neurobiological response

While affirmative consent is a popular concept on campus and is often promoted in mandatory sexual-consent training, it is hard to define in a legal sense.

Like other definitions, the resolution and report devised by the ABA’s Commission on Domestic and Sexual Violence affirms that consent can be conveyed through actions as well as words. But the furthest the report goes to specify actions that demonstrate consent is to cite two vague state criminal definitions.

In Wisconsin, consent can be shown through “overt actions” that indicate “a freely given agreement to have sexual intercourse or sexual contact.” California’s code requires “positive cooperation in act or attitude pursuant to an exercise of free will.”

Due process lawsuits stemming from Title IX adjudications often explain at length how an accuser showed consent through overt actions or positive cooperation, but later disputed that the encounter was consensual throughout.

MORE: Memory, neuroscience experts warn of junk science in Title IX training

The report suggests that without affirmative consent in the criminal law, potential victims will be required to physically fight their aggressors in order to demonstrate their lack of consent.

It cites heavily disputed theories, sometimes compared to the “repressed memory” movement, that victims may seize up during sexual assault, physically unable to vocalize or demonstrate their lack of consent. The report approvingly cites Michigan State University psychologist Rebecca Campbell as an expert in the “neurobiology of trauma as it relates to sexual violence.” Campbell is not a neuroscientist.

“A history of sexual violence, and of the status of women as the sexual property of men, still informs the law governing sexual assault, and that should stop,” concludes the report, written by the chair of the commission, Mark Schickman, and the chair of the ABA’s Criminal Justice Section, Lucian Dervan. “The proposed definition is a step in that direction.”

Guilty ‘merely upon evidence of a sex act with nothing more’

Among the groups opposing the resolution is the National Association of Criminal Defense Lawyers, which says it would prove an offense occurred “merely upon evidence of a sex act with nothing more.”

The resolution shifts the burden of proof to the accused for each act, undefined, within a larger sexual encounter, and “assumes guilt in the absence of any evidence regarding consent,” the association wrote last month.

“This radical change in the law would violate the Due Process Clause of the Fifth and
Fourteenth Amendments and the Presumption of Innocence,” the group argues. “The resolution will often force the defendant to testify in order to present evidence that consent was expressed.”

More technically, the ABA resolution would turn sexual assault into a “strict liability” crime that ignores “the mental state of the accused,” putting it out of whack with criminal liability in general.

The association accuses the ABA report authors of misrepresenting the American Law Institute’s consideration of the affirmative consent standard for its “model penal code” in 2016.

MORE: ‘Victim-centered’ investigations create new victims

To justify its own proposal, the ABA commission cites the ALI proposal at length, saying only that the ALI version is “not yet final.”

The association retorted that “it is final as far as affirmative consent goes – the concept was rejected in a landslide vote” by ALI members, an elite group that includes professors, attorneys, judges and other legal professionals.

The ALI instead adopted a broader definition of consent that includes “willingness” – rather than the contractual “assent” – and says it can be “inferred from behavior,” including “inaction.”

The ABA resolution would “impose novel social legislation designed to dictate social mores” into criminal law, according to the association. It “seeks to impose uncommon requirements in the volatile area of human sexual relations.”

The group also questioned the science proffered by the ABA, saying that “tonic immobility or tonic collapse” is associated with a “traumatic event” such as a “brutal rape with force. The vast majority of consent cases do not include such traumatic events.”

‘This gibberish resolution will result in the conviction of innocent men’

Criminal defense lawyer Scott Greenfield was less restrained in his opposition to the ABA resolution.

“ALI’s proposal to change the model penal code failed, largely because not everyone there has shit for brains,” he wrote in a blog post. He mocked the House of Delegates as “consisting of the last three full-paying members and lots of third-wave-feminist academics.”

The point of the resolution is “turning law on its head and assuring that any ‘survivor,’ any woman who accuses a man of rape, will prevail,” Greenfield wrote:

Her accusation will be believed. He will be defenseless. She will get her vengeance and he will be punished. …

There’s no reason to remind the ABA that this gibberish resolution will result in the conviction of innocent men. That’s just the price of believing the woman, and they are totally willing to pay that price with other, innocent men’s lives.

The resolution makes all sexual activity “presumptively nonconsensual,” according to FIRE’s Harris. She asks ABA members to consider how affirmative consent has worked on campus, pointing to FIRE’s man-on-the-street interviews with students (below).

MORE: ALI draft said disabled people can’t consent to sex

“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,” Harris wrote.

The president of the due-process group Stop Abusive and Violent Environments seems more sanguine about the prospects of defeating the resolution, or at least mitigating its impact.

“You may recall that from 2014 to 2016, many state legislatures considered affirmative consent bills – almost all of which we succeeded in defeating,” Ed Bartlett told The College Fix in an email.

His group maintains a through resources page on the dangers of affirmative consent. The concept makes it easy for accusers to “retroactively revoke consent” by claiming they consented to one but not another act, but at its core, affirmative consent simply “infantilizes women.”

MORE: Law prof suggests kangaroo courts look at home, work relationships

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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