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Several judges accuse American Bar Association of hiding controversy on campus sex rules

More than 100 legal professionals sign letter

The American Bar Association is voting on a resolution this week to recommend the addition of “affirmative consent” to the criminal code. The sexual-consent standard, which flips the burden of proof to the accused, is common in college Title IX policies.

But the ABA is facing blowback from 100 members of the American Law Institute, an elite organization composed of professors, attorneys, judges and other legal professionals.

The authors of Resolution 114 and its accompanying report falsely portrayed the ALI’s own vote on affirmative consent three years ago, according to a letter from ALI members to ABA President Robert Carlson.

Even more noteworthy, nine signatories are current or retired judges – eight of them at the appellate level. A few more are affiliated with organizations that represent judges.

The first is Frederic Smalkin, retired chief judge for the federal District of Maryland and jurist-in-residence at the University of Baltimore law school. The retired chief justice of the Utah Supreme Court, Michael Zimmerman, also signed.

Three have served on Texas appeals courts, and two currently serve on the top courts in Iowa and Michigan. The others: retired Judge Noel Fidel from the Arizona Court of Appeals and Benjamin Lerner, an active judge on the Philadelphia Court of Common Pleas.

The ALI resolution faced massive opposition at the time for the same reason that trial lawyers and advocates of due process are opposing the ABA resolution: Affirmative consent removes the presumption of innocence and likely violates the Fifth and 14th amendments.

MORE: ABA mulls imposing campus sex rules on everyone

‘Highly misleading’ to leave out materials behind failed vote

“We write both because the content of Resolution 114 is directly contrary to the position taken by ALI and because the ‘Report’ submitted by the supporters of Resolution 114 inaccurately describes the actions and positions taken by ALI,” according to the letter.

The ABA report hides the actual history of the ALI resolution, particularly its “controversy,” as mentioned in its second “tentative draft.” As the professor who shepherded the resolution wrote in that draft report, several members argued that affirmative consent does not recognize “the largely tacit ways that people engage in sexual behavior in the real world” and criminalizes “innocent” behavior.

The ALI rejected the affirmative-consent definition and voted for a more nuanced version of consent that recognizes it can be “inferred from behavior—both action and inaction—in the context of all the circumstances.”

The definition also said that the absence of verbal or physical “resistance” could be considered “in determining whether there was consent.” It upheld a “clear verbal refusal” as the surest way to convey lack of consent.

MORELawyers object to attempt to quietly redefine sexual assault

“For reasons that have not been explained to us,” the ABA report “cites no ALI materials after 2014 and, as a result, is highly misleading,” the letter to the ABA reads:

The ABA should not consider moving forward with an important matter where the “Report” purporting to justify the action is so obviously deficient. This is a matter of the essential integrity of the ABA. A vote based upon the current “Report” is not defensible because the “Report” absolutely excludes all relevant information about ALI’s actual position while repeatedly claiming support from ALI.

The ALI members attached several documents considered by the organization “memorializing the deficiencies with ‘affirmative consent’ that led to its rejection by ALI.” One includes an extended critique of “frozen fright,” a theory popularized psychologist Rebecca Campbell of Michigan State University (below).

The letter notes that journalist Emily Yoffe largely debunked the purported science behind frozen fright in interviews with memory and neuroscience experts for The Atlantic. Campbell’s theories are popular in Title IX training materials for colleges.

The ABA report on Resolution 114 “is based on bad history and bad science,” they concluded, and it should be withdrawn until its proponents can write “a fair and balanced report.”

The ABA resolution and report were written by the chairs of the ABA’s Criminal Justice Section and Commission on Domestic and Sexual Violence.

Read the letter.

MOREMemory, neuroscience experts warn of junk science in Title IX training

IMAGE: everything possible/Shutterstock

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About the Author
Associate Editor
Greg Piper served as associate editor of The College Fix from 2014 to 2021.