Affirmative Consent Takes a Hit
May 19, 2016
Affirmative consent, which makes is difficult for anyone accused of sexual misconduct on college campuses to mount a defense, took a big hit this week.
In what the Washington Times report characterizes as “a rebuke to feminists,” the influential American Law Institute has strongly rejected “affirmative consent” as the standard for dealing with accusations of sexual misconduct on campus.
The group voted not to change its Model Penal Code to make affirmative consent the standard for dealing with such accusations. The ALI’s Model Penal Code is influential with state legislatures and so the group’s vote against affirmative consent is highly significant. The Washington Times explains:
Standards of affirmative consent, which generally require parties to affirmatively and continually vocalize their willingness to participate in a sexual encounter, have mostly germinated on college campuses, as well as in a few states in somcontexts, including California and New York.
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A group of 120 members wrote a public letter denouncing the proposal, arguing affirmative consent improperly shifts the burden of proof onto the accused when charges of sexual assault are levied. By forcing the accused to prove the near-impossible — that a sexual encounter was vocally agreed upon at each stage — affirmative consent standards deny the accused due process rights, the letter said.
The letter denouncing the proposed change set forth objections to affirmative consent:
“The prosecutor need only say, ‘Ladies and Gentlemen of the Jury, under the State’s definition, it does not matter whether the complainant actually was willing,’ ” the letter says. “‘It is undisputed that the sex act occurred and there is no evidence in the record that the complainant communicated willingness. There is no consent if the complainant has not communicated. You must convict if you find the defendant recklessly disregarded that absence of consent.’”
Critics also point out that, even if parties to sexual activity have not communicated their willingness to participate, that does not guarantee a sexual assault has taken place.
As Ashe Schow explained what adoption of the provision would mean in the Examiner before the vote was taken:
For starters, the draft has rebranded the “affirmative consent” standard previously criticized as “communicated willingness.” Whatever you want to call it, it requires each person involved in sexual activity to essentially treat sex like a question-and-answer session, with each party asking question after question and receiving a clear reply before escalating the activity. This is not how sex works, and the signers of the opposition letter write that such language creates a starting presumption that sex is a crime.
John Fund wrote before the vote that “restating the law” would have been “empowering to the sex police.” The ALI’s rejection of this shift gives us some hope that affirmative consent, which can erode due process, a cornerstone of western jurisprudence, may be a passing fad.