BIG WIN For Due Process. American Bar Assoc. Voted Against Affirmative Consent
The American Bar Association wanted to change the definition of consent in criminal sexual assault cases that closely mirrors the definition used by college and universities — but criticism from due process advocates blocked the move. The ABA’s House of Delegates rejected a resolution to endorse the affirmative consent standard, which holds that an encounter should be considered assault unless each participant obtained a clear yes before every sexual act. The ABA voted 256-165 against endorsing affirmative consent as a standard in cases involving sexual accusations.
On college campuses that have moved toward an affirmative consent standard, the de facto burden of proof has shifted to the accused—often male athletes of color—who face expulsion and lifelong pariah status unless they can provide evidence that each and every stage of a late-night, drunken sexual escapade that neither party remembers very well had garnered an inarguable affirmation before it began. “The idea that we’re essentially taking what colleges define as consent and try to import it into criminal court is not appropriate,” said Lara Bazelon, a member of the Criminal Justice Section’s governing board, and a professor of law at the University of San Francisco.
Affirmative consent, as Stuart Taylor Jr. and KC Johnson, explained in a Wall Street Journal op-ed piece on the ABA’s resolution would “redefine sexual consent and convict innocent men of assault.”..It’s a relief that this illiberal standard did not make the jump from Title IX star chambers to ABA policy.
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