Affirmative Consent & Due Process
The American Bar Association will vote on whether to adopt a resolution to urge state legislatures to adopt "affirmative consent" as the criminal-law definition of consent for sexual assault:
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.
Affirmative Consent has been adopted as the standard in a number of college campuses. I won’t get into the issues with that implementation here except to point out that administrative adjudication is not the same thing as criminal prosecution.
And there are a number of legitimate reasons to oppose enshrining Affirmative Consent into criminal law. National Association of Criminal Defense Lawyers (NACDL) vociferously opposed the resolution, noting that the change would shift the burden of proof to the accused, rather than the prosecution.
Not so, argues a resolution supporter:
[The opposing groups] say this resolution shifts the burden of proof, or eliminates the presumption of innocence; it does neither. To be clear: using the definition in the resolution, the prosecution has to prove beyond a reasonable doubt that consent was absent. It remains the prosecutor’s burden to present such evidence, and to convince the jury beyond a reasonable doubt to believe it. Otherwise, the defendant gets acquitted; the defendant never needs to prove anything. Every procedural protection and presumption of the system remains. Beyond question, we agree it would be unconstitutional to do otherwise.
Elsewhere in their email, they also said the principle animating the opposing groups is:
Again, their campaign has history on its side, a long understanding that women were spoils of war, that rape of a woman a property offense against her husband if she were married and her father if she were not...
I kind of checked out when I read this, I can't believe this is earnestly argued. To me this is a textbook example of poisoning the well. It's a token cede while simultaneously explicitly linking your intellectual opponents with supporting the rape and pillage of women during warfare. Really fucking gross.
As an additional point, and as a criminal defense attorney myself, I totally grant that the language that this proposal would destroy the presumption of innocence to be overwrought. BUT, while the new standard would maintain the presumption of innocence, the prosecution now has to prove a negative beyond a reasonable doubt. Literally the only way to counter the accusation of a negative (besides questioning the credibility of the evidence of the negative) is an affirmative claim, and the only person that would be capable of doing that is the defendant. De facto, this means that on any case involving affirmative consent will most likely necessitate the testimony of the accused. This seriously impairs the right to remain silent.
I legitimately want to understand whether the proponents of this resolution have worked out how this would fundamentally change sexual misconduct trials and criminal allegations. The alleged victim says there was no affirmative consent, the accused says there was. How do you put up a defense in front of a jury? The standard is nominally "beyond a reasonable doubt" but I often (too often) have to correct jury misconception during voir dire that a conviction is based on the preponderance of the evidence (more likely than not).
If the penalties suddenly become criminal, it would be genuinely irresponsible to NOT video tape the consent of every single sexual encounter you ever have. I don't think I'm being hyperbolic at all. The new standard would drastically lower the probable cause requirement to file criminal charges and this necessarily would drastically open the floodgates with regards to accusations and criminal proceedings.