On Monday, the American Bar Association’s House of Delegates voted 256–165 to postpone consideration of a measure urging state legislatures to adopt an “affirmative consent” standard—a concept often described on campuses as “yes means yes.” The measure would have encouraged politicians to introduce into criminal law one of the most unfair aspects of campus Title IX adjudications.

Affirmative consent first attracted national attention in the early 1990s. Back then, it was viewed as a joke, literally—Saturday Night Live lampooned it. Even the New York Times editorial board deemed the concept “almost impossible to implement.” The Times, at least in the nineties, recognized the fundamental unfairness of a system that, when working as designed, would require the accused to prove that he obtained consent, rather than requiring the authorities to prove that the accuser withheld consent.

The Obama administration oversaw a dramatic reduction in the rights of students accused of campus sexual assault. The administration’s defenders—implicitly at the time, more explicitly lately—deemed weakening procedural protections for the accused a necessary cost to establish a system in which more victims would file complaints with Title IX tribunals. In this environment, scores of universities voluntarily adopted an affirmative-consent standard. More troublingly, five states (California, Colorado, Illinois, New York, and Connecticut) passed laws requiring public colleges and universities to apply an “affirmative consent” guideline, even as the state’s criminal statutes defined sexual assault far more narrowly.

Campus activists have justified their crusade on grounds that a guilty finding before a Title IX tribunal won’t result in imprisonment—but their efforts have quickly extended beyond campus walls. As the American Law Institute considered a new Model Penal Code, a working group led by NYU professor Stephen Schulhofer pushed for including affirmative consent in the new guidelines. In May 2016, more than 120 ALI members publicly denounced a standard that would turn traditional American principles of justice on their head: “Whether it is a burden of going forward, a burden of proof, a burden to establish an affirmative defense or something else, the defendant has been burdened to disprove guilt.” ALI membership overwhelmingly rejected the proposal.

Undaunted, affirmative-consent backers turned their attention to the ABA. As originally proposed, the resolution debated at this week’s conference urged state legislatures “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.” In an e-mail sent to ABA delegates, Mark Schickman, chair of the Commission on Domestic and Sexual Violence (which co-sponsored the measure), candidly asserted that the sponsors hoped to use the law to accelerate social change.

Initially, affirmative consent looked certain to pass. Though championed by the ABA’s Commission on Domestic and Sexual Violence, it was co-sponsored by influential Criminal Justice Section—a body described by one of its members as “the unified voice of criminal justice,” evenly divided between prosecutors, defense lawyers, academics, and judges. Opposition gradually developed, however—first from the National Association of Criminal Defense Lawyers, then from influential criminal-defense lawyers such as Scott Greenfield and Lara Bazelon. Their argument: affirmative consent would improperly shift the burden of proof from the state to the defendant, violating the accused party’s civil liberties. More than 100 ALI members signed an open letter pointing out that the resolution’s co-sponsors had misrepresented their body’s work by suggesting that the ALI hadn’t rejected affirmative consent when, in fact, it had done so. Amid these developments, the Criminal Justice Section not only unanimously withdrew its endorsement but also recommended postponing consideration of the resolution.

In rhetoric that echoed the campus debate about Title IX, affirmative-consent advocates attempted to portray defenders of procedural fairness for the accused as rape apologists. In an email sent to all ABA delegates, Domestic and Sexual Violence chair Schickman denounced the resolution’s opponents for purportedly basing their arguments on “centuries old assumptions . . . that in our society, and in societies throughout history, sex is considered there for the taking.” Schickman described the opposition—including the chair of the Criminal Justice Section and prominent feminist lawyers—as embracing a “history” in which “women were spoils of war, that rape of a woman was a property offense against her husband if she were married and her father if she were not, and which in some jurisdictions still protects forced sex in the absence of earnest resistance.”

In retrospect, the Criminal Justice Section’s reversal killed the proposal, at least for this ABA session. The defeat provided an important opportunity for the nation’s highest-profile legal organization to take a stand for fair treatment of the accused. At the same time, despite the remarkably powerful coalition that formed against the measure, nearly 40 percent of the delegates wanted to adopt the resolution. And the postponement all but ensures that some proposal on the issue will appear before the ABA again.

In an ideal world, the ABA’s move would lead campuses that have adopted affirmative consent to reconsider their unfair systems. More likely, however, the ABA debate previews a potentially dangerous future. If the perspectives that have animated campus debates about Title IX—that the demands of “justice” necessitate procedures effectively rigged against the accused—pass into criminal law, the result will be a wave of convictions of defendants who are actually or likely innocent. That outcome might be acceptable, even desirable, to the ABA’s Commission on Domestic and Sexual Violence, just as its campus equivalent earned backing from defenders of the Obama administration’s Title IX policies. But for those interested in fairness, such an outcome would be disastrous.

Photo by Kevork Djansezian/Getty Images


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