The American Bar Association’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 House of Delegates meets yearly, voting on whether to reject or adopt various proposals that then become formal ABA policy. The affirmative consent proposal went doubt to defeat by a vote of 256-165.
The resolution called for state legislatures 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” and “provide that consent is expressed by words or action in the context of all the circumstances,” according to KC Johnson and Stuart Taylor, Jr, who wrote about the matter for The Wall Street Journal:
Due-process advocates have denounced the proposal. The National Association of Criminal Defense Lawyers calls it a “radical change in the law” that “assumes guilt in the absence of any evidence regarding consent . . . merely upon evidence of a sex act with nothing more.” By “requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent,” the association contends, any law based on the proposal would violate the Due Process Clauses of the Fifth and 14th amendments. Scott Greenfield, a New York criminal-defense lawyer, put the point more bluntly: It would “result in the conviction of innocent men.”
Affirmative consent is perfectly benign if contained to the realm of cultural prescript: It’s fine to assert that active, enthusiastic, previously-agreed-to consent is ideal in sexual encounters. But enshrining this standard as a matter of law would mean criminalizing sex in cases where it can not easily be proven that both parties expressly communicated prior consent. 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.
It’s a relief that this illiberal standard did not make the jump from Title IX star chambers to ABA policy.