American Law Institute Rejects Affirmative Consent Standard in Defining Sexual Assault
May 17, 2016
In a rebuke to a feminist idea that has migrated from college campuses to mainstream culture, an influential legal group overwhelmingly rejected Tuesday a provision that would have endorsed an “affirmative consent” standard for the purpose of defining sexual assault.
In a voice vote at the American Law Institute’s 93rd annual meeting at the Ritz-Carlton, Washington, D.C., the vast majority of an estimated 500-member crowd declined to amend the Model Penal Code to define sexual consent on an affirmative basis.
The MPC is a leading guide for state legislatures to follow when standardizing their penal codes. One of the items up for debate at the annual meeting was how to define “consent” in the context of sexual assault.
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 some contexts, including California and New York.
The ALI’s consideration of such a standard has been met with much internal and external criticism.
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.
Brookings Institution Nonresident Senior Fellow Stuart Taylor Jr., who attended part of Tuesday’s meeting, applauded the ALI’s rejection of the affirmative consent standard as resistance to an ideologically-driven and unrealistic idea.
“I think it’s a very encouraging indication that the broad membership of the American Law Institute, which is a pretty elite group, has repudiated a radical expansion of sex-crime law that was sought by a powerful faction of people whom I regard as ideologues,” Mr. Taylor said.
He said the ALI’s acceptance of the provision wouldn’t have made affirmative consent “the law anywhere,” but added that it would have been a “step toward it being the law in a lot of places.”
He said affirmative consent is simply an unrealistic standard for governing sex.
“The general problem of affirmative consent is it ignores the reality of how sexual activities often happen, which is they often happen silently,” Mr. Taylor said. “People don’t say, ‘May I touch you here? May I touch you there?’ Or even if they said, ‘May I touch you here?’ they may go on to ‘there’ without verbalizing it.”
“If one party at one point in a sexual encounter is sort of passive, is sort of quiet, then that’s rape,” he said of the standard. “It makes it very easy for prosecutors to coerce plea bargains, or angry former sex partners to put someone in prison. They hardly even have to lie.”
Spearheaded by New York University Law Professor Stephen J. Schulhofer — an influential ALI “Reporter” who sat on a panel at the head of the Ritz-Carlton ballroom during deliberations — the affirmative consent amendment has been through several revisions since an initial draft was introduced in April 2015. Mr. Schulhofer could not be reached for comment.
E. Everett Bartlett, president of the Center for Prosecutor Integrity, who attended the meeting, said the idea of affirmative consent as a way to cut down sexual assault is alluring, but ultimately misguided.
“Affirmative consent sounds wonderful in theory; in reality, it’s a nightmare because it’s impractical, and there’s no way for an accused person to prove his innocence,” Mr. Bartlett said. “The overwhelming vote of the ALI membership to strike affirmative consent from the Model Penal Code was the right thing to do.”
The April 2015 draft defined the consent standard as “positive agreement”; a September 2015 draft dropped the affirmative consent standard for non-penetrative sexual acts; and a December 2015 draft termed the standard “contextual consent,” which critics argued was a distinction without a difference.
The Schulhofer-backed amendment introduced at the annual meeting was somewhat diluted, mentioning the importance of both verbal and nonverbal cues for determining sexual consent.
It defined consent as “a person’s behavior, including words and conduct — both action and inaction — that communicates a person’s willingness to engage in a specific act of sexual penetration or sexual contact.”
In its final form, the proposal did not require explicit vocalization before engaging in sexual acts, as other affirmative consent laws have. But Mr. Taylor said even though “they didn’t call it affirmative consent at the end, that’s what it amounted to.”
The amendment was met by a counter proposal, introduced by former U.S. Pardon Attorney Margaret Love, who defined consent as “a person’s willingness to engage in a specific act of sexual penetration or sexual contact.”
After nearly two hours of deliberations, one ALI member who was in the room said four-fifths of the crowd voiced support in favor of Ms. Love’s amendment.
The ALI still has to vote on other matters regarding sexual assault in order to completely reject the affirmative standard of consent.
Tuesday’s vote dealt with Section 213.0 of the MPC, which only concerns the definition of consensual sex. Section 213.2, for instance, which has not been voted upon, specifically addresses penetrative sexual assault.
After the ALI membership approves a section, only editorial, not substantive changes to the proposed statutory language can be made, meaning the content of Section 213.0 cannot be altered. Numerous other sections still need to be reviewed and approved by the ALI membership, which means final approval of the overall MPC is still a long way off.