American Bar Association tables affirmative consent resolution

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 “Legal hammer stock photo”by DPP Law is licensed under CC BY 2.0, cited here.

The American Bar Association (ABA) tabled a resolution that would have encouraged state legislatures and courts to change the definition of consent in criminal sexual assault cases, during their annual meeting Aug. 12. The proposed ABA resolution reads as such:

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.

American Bar Association (ABA)

The resolution’s definition closely aligns with affirmative consent policies that have been adopted by many universities. According to Inside Higher Ed, “These institutions openly encourage their students to receive a clearly articulated ‘yes’ response, in words or actions, before proceeding with sexual activity.”

The resolution was expected to pass, as it was co-sponsored by the ABA’s Criminal Justice Section, composed of professionals and academics invested in such issues. However, the Criminal Justice Section’s governing board – a group of 40 individuals representing the 16,000 members of the section – unanimously withdrew its support and instead decided to speak out against the resolution during the House of Delegates’ floor vote.

Their opposition to the resolution stems mainly from a concern that the proposed definition of consent violates the Constitutional ensurement of due process. The National Association of Criminal Defense Lawyers was a leader of the resistance to the resolution, publishing a statement saying:

NACDL opposes ABA Resolution 114 because it shifts the burden of proof by requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent. The resolution assumes guilt in the absence of any evidence regarding consent. This radical change in the law would violate the Due Process Clause of the Fifth and Fourteenth Amendments and the Presumption of Innocence. 

National Association of Criminal Defense Lawyers

Supporters of the resolution retort that very few criminal cases involving sexual assault actually make it to court, with even fewer resulting in any sort of convinction. This is especially common among college students, which may be a reason why universities were the first to adopt affirmative consent policies.

Another common concern surrounding affirmative consent is the threat of false rape claims. However, this particular fear is shrouded by misinformation.

“In reality, false rape allegations are very rare, comprising about two to eight percent of all reports for a crime that’s already vastly under-reported,” stated Think Progress.

Beyond false rape accusations, others are worried that if affirmative consent becomes law, people could face prosecution if they fail to ask for verbal consent throughout a sexual encounter. In reality, that hypothetical situation is not an inherent breach of affirmative consent. The resolution’s definition of consent is flexible enough to include non-verbal signals of consent.

Think Progress also states that “if both partners were enthusiastic about the sexual encounter, there will be no reason for anyone to report a rape later.”

Current Missouri law classifies first-degree rape as “sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or by use of forcible compulsion.” 

This state law is far from adhering to the standards of affirmative consent. If the ABA’s tabled resolution was voted on and passed in the future, it could serve as a guideline – for lawmakers in Missouri and other states – as they update existing laws.

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