Last-minute revision to clarify ‘presumption of innocence’ remains
The American Bar Association, like the more elite American Law Institute before it, is not yet ready to remake the criminal courts in the image of Title IX campus courts.
At its annual meeting Monday night, the ABA’s House of Delegates voted to shelve a resolution that would have originally recommended that “affirmative consent” be added to the criminal code for sexual offenses.
Affirmative consent, you may remember, requires the accused to prove they obtained consent from their partners before and throughout sexual encounters. As in, every slight change of position potentially requires renewed consent.
It’s a common consent standard on college campuses, and it’s functionally impossible to meet. In criminal trials, affirmative consent would flip the burden of proof from the government to the defendant. It would functionally spur even more plea bargains.
The tally was 256-165 after an inconclusive voice vote, according to Twitter critics of the resolution who were following floor debate. It followed substantial changes to Resolution 114’s wording and plunging support.
According to Brooklyn College Prof. KC Johnson, who chronicles litigation on campus sexual misconduct proceedings, the ABA’s Criminal Justice Section and Executive Committee both recommended “indefinitely tabling the resolution” as debate began.
Echoing a letter from more than 100 members of the ALI, which voted down an affirmative consent resolution three years ago, a member of the Criminal Justice Section said the resolution authors were misleading in their portrayal of the ALI debate.
The first two speakers, in favor of the resolution, also misportrayed it, while a prosecutor warned that affirmative consent could result in convictions being thrown out on constitutional grounds, according to Johnson.
Prosecutor urges tabling of the resolution, notes horrific nature of process for a victim–made much worse if the case needs to be re-tried b/c defendant's const'l rights were violated, of which affirmative consent would doubtless increase chances.
— KC Johnson (@kcjohnson9) August 12, 2019
The ABA’s official news publication portrayed the vote as a decision to “improve the language” of the resolution and bring it back another time. The Criminal Justice Section “explained that its early support for the resolution was hastily decided this spring and that the governing body of the section unanimously agreed to withdraw support.”
Perhaps sensing doom if they didn’t alter the wording, resolution supporters released a revised version ahead of the vote. It changed the contractual word “assent,” which had troubled a criminal defense group, to the simpler “consent.”
The revision also added a new clause that specifies “nothing herein changes the Constitutionally-guaranteed presumption of innocence, or the burden of proof, which at all times remains on the prosecution to prove every element of an offense, including without limitation lack of consent, beyond a reasonable doubt.”
Johnson speculated that the new clause, which “vitiates” the wording above it, was intended to “save face & sow confusion for state legislatures.” Criminal defense lawyer Scott Greenfield was characteristically colorful about the revision.
Resolution supporters were not helped by The Wall Street Journal publishing an op-ed by Johnson and his Campus Rape Frenzy co-author Stuart Taylor on Monday.
— NACDL (@NACDL) August 12, 2019
For now, supporters of due process and a fairer criminal justice system can take a breather before preparing for the next fight.
You’ll notice if you search “Resolution 114″ on Twitter that its supporters largely refuse to admit what it would do – turn the criminal justice system on its head – and their religious fervor will only grow stronger from here.