The American Bar Association voted to postpone a vote to adopt “affirmative consent” as the organization’s standard going forward. If adopted, the organization would pressure state legislatures to adopt the same standard, effectively ending the presumption of innocence and force the accused to prove a negative.
On Monday, University of San Francisco law professor and writer Lara Bazelon reported from the ABA’s annual meeting, saying the debate led to “drama on the floor of the ABA House of Delegates.”
Over the weekend, the ABA’s Criminal Justice Section recommended voting to indefinitely table the resolution. On Monday, the House of Delegates voted to table the resolution. The tabling won, 256-165.
Author and professor K.C. Johnson attended the meeting and shared the concerns of some of the members, including that of a public defender who noted the “disparate racial impact potential” and a prosecutor who suggested the resolution would violate the defendant’s constitutional rights and could lead to a mistrial.
The Daily Wire previously reported on the resolution, which would have forced the accused to prove that they obtained consent (for an encounter they likely believed at the time was consensual and so would have no reason to document such consent) instead of the prosecution needing to prove that consent wasn’t obtained.
The resolution and its demise is similar to what happened with the American Law Institute, which proposed changes to the model penal code relating to sexual offenses. Like the ABA, the ALI proposal would shift the burden of proof onto the accused, and expand the definition of sexual offenses. The draft model penal code was never adopted by the ALI, yet the ABA attempted to revise the failed concept of consent for themselves.
On Thursday, ABA member Mark Schickman sent an email to other members attacking the campaign against the resolution in an email provided to The Daily Wire. Schickman claimed the wording would not, as critics maintained, shift the burden of proof, but critics weren’t persuaded.
Though the ABA refused to adopt the resolution at this time, the organization’s Commission on Domestic and Sexual Violence proposed an edited definition of consent. Here’s the original resolution:
RESOLVED, That the American Bar Association urges 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, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.
And here are the proposed edits:
RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the consent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, provided that 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.
Critics still weren’t swayed, as all a prosecutor would have to do is claim the accuser’s word is sufficient evidence and then the accused would still have to prove that he obtained consent.
Johnson claimed the goal of the revised revolution seemed to be “to save face and sow confusion for state legislatures.”