PRESS RELEASE

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Affirmative Consent for Sex Gets ‘Thumbs-Down’ from Lawmakers, Legal Defense Group, and Harvard Professors

WASHINGTON / March 28, 2016 – Polices designed to require explicit and ongoing agreement, often referred to as “affirmative consent,” experienced three setbacks during the past week. These developments signal broader concerns about the effectiveness, workability, and constitutionality of these policies, sometimes referred to as “yes means yes.”

Last Monday, members of the Maryland House Judiciary Committee declined to take a vote on HB 1142, a bill that would have required students at all Maryland colleges to give their “ongoing,” “clear, unambiguous, knowing, informed, and voluntary” agreement before engaging in sexual activities.  Monday was the deadline for Maryland Delegates to approve a bill in order for it to advance to the Senate. Since no vote was taken, the affirmative consent bill is now considered “dead.” (1)

On March 22, the National Association of Criminal Defense Lawyers (NACDL) released a position paper on a proposed rewrite of criminal sexual assault laws. The Preliminary Draft, currently being considered by the American Law Institute (ALI), would make the absence of affirmative consent a key element in determining whether a sexual offense had occurred. (2)

The NACDL document takes sharp issue with the ALI proposal, saying the proposed affirmative consent standard would “shift the burden of proof to the accused,” a change the NACDL views as unconstitutional. The Preliminary Draft, according to the NACDL, would “use the bludgeon of criminal sanctions to impose the new and yet untested concept of ‘affirmative consent’ upon society.”

Highlighting the difficulty of laying out a precise definition of affirmative consent, the NACDL notes, “No person should face prosecution, conviction and imprisonment based upon a vague and ambiguous law.” The NACDL concludes, “In a utopian society, transparent and free flowing communication about sexual activity would be a beneficial goal, but we are hardly a utopian society.”

Thirdly, Harvard University professors Jacob Gersen and Jeannie Suk released a scholarly article titled The Sex Bureaucracy. The paper posits that ever-expanding definitions of affirmative consent have led to the current untenable situation in which “conduct classified as illegal by the sex bureaucracy…plausibly covers almost all sex students are having today.” (3)

More information about affirmative consent is available on the SAVE website. (4)

(1)   http://mgaleg.maryland.gov/webmga/frmMain.aspx?stab=01&pid=billpage&tab=subject3&ys=2016rs&id=HB1142

(2)   http://www.prosecutorintegrity.org/wp-content/uploads/2016/03/NACDL-Comments-Draft-6-MPC-Sexual-Assault.pdf

(3)   http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2750143

(4)   http://www.saveservices.org/sexual-assault/affirmative-consent/

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org