It was only a few years ago when the woke at the American Law institute tried their darndest to change the model penal code to make every defendant a rapist if someone said so. Sure, it’s ironic as the cognitive-dissonance-impaired scholars railed against mass incarceration, for decriminalization of drugs and rended their hair suits over the disproportionate convictions of minorities, while simultaneously doing the opposite when it came to sex offenses.
After all, anything that negatively impacted the feelings of women trumped every other concept for which they were ready to man the barricades. A rationalization was that sexual assault had become an “epidemic.” Of course, it became an “epidemic” because the woke eliminated any definition and turned it into “rape is whatever a woman feels it is, whenever she feels it, for good reason, bad reason or no reason.”
It brought a tear to my eye to realize just how horribly fragile and incapable these poor vulnerable and oppressed women were to be utterly incapable of anything from personal responsibility for any choice they made in their life to saying “no.” Or, if they said “yes,” to living with their decision rather than manufacturing excuses the next day, or next year, for why “yes” means whatever the woman wants it to mean.
ALI’s proposal to change the model penal code failed, largely because not everyone there has shit for brains. It’s not that they aren’t still trying to proselytize the heretics, who must hate women since why else would anyone be principled, and they may get there yet.
In the meantime, the ABA apparently shared my concern for the marginalized and has taken up the cause where ALI failed. Resolution 114 will be put to their House of Delegates at its Annual Meeting, consisting of the last three full-paying members and lots of third-wave-feminist academics.
COMMISSION ON DOMESTIC AND SEXUAL VIOLENCE
CRIMINAL JUSTICE SECTION
CIVIL RIGHTS AND SOCIAL JUSTICE SECTION
REPORT TO THE HOUSE OF DELEGATES
1 RESOLVED, That the American Bar Association urges legislatures and courts to define
2 consent in sexual assault cases as the assent of a person who is competent to give
3 consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to
4 provide that consent is expressed by words or action in the context of all the
5 circumstances, and to reject any requirement that sexual assault victims have a legal
6 burden of verbal or physical resistance.
What this accomplishes, among other problems, is the flipping of the burden of proof from accuser to accused. If a person says “I did not ‘assent’,” or “I was not competent to ‘assent’,” it then becomes the defendant’s burden to prove the negative.
As they did with the ALI attempt to change the model penal code to eliminate the burden of proof, inter alia, the NACDL opposes this resolution, noting the two most obvious failings,* which I quote at length.
1. Burden-Shifting in Violation of Due Process and Presumption of Innocence: 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. It offends fundamental and well-established notions of justice. Specifically, Resolution 114 urges legislatures to re-define consent 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 . . .” The phrase “expressed by words or action” shifts the burden entirely to the accused. Under Resolution 114 the offense is proven merely upon evidence of a sex act with nothing more. This approach violates the “bedrock and axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law” – the presumption of innocence. See In re Winship, 397 U.S. 358, 363. As a corollary the provision also guts the accused’s Fifth Amendment right to remain silent. The resolution will often force the defendant to testify in order to present evidence that consent was expressed.
2. Strict Criminal Liability: In flipping the burden of proof the resolution essentially renders sexual assault statutes to be strict liability crimes that focus only the victim and disregard the mental state of the accused. Criminal liability should rarely be based upon an act without considering the mental state of the accused. See Elonis v. United States, 575 US ____, 135 S.Ct. 2001 (2015). The affirmative consent doctrine focuses on the actions and mental state of the complainant without regard for the mental state of the accused.
In a weird way, this is a silly exercise. There is no sentient lawyer who is unaware of why this shift is fundamentally wrong, unconstitutional and contrary to the most fundamental precepts of American jurisprudence. That’s not the point. It’s not as if the ABA isn’t aware, as the proponents of similar nonsense at ALI were aware. They don’t care.
The NACDL is hardly a conservative organization, and is replete with lawyers finely attuned to the demands of social justice. so its opposition here isn’t a product of some misogynistic right-wing conspiracy. The proponents of affirmative consent aren’t necessarily stupid or clueless, but deliberate in their goal of turning law on its head and assuring that any “survivor,” any woman who accuses a man of rape, will prevail. Her accusation will be believed. He will be defenseless. She will get her vengeance and he will be punished.
More to the point, the proponents of this end game will persist in their effort to push the law beyond reason to accomplish their ends. Where ALI fails, the ABA expects to succeed. And given the nature of the few remaining people at the ABA, they very well might.
There’s no reason to remind the ABA that this gibberish resolution will result in the conviction of innocent men. That’s just the price of believing the woman, and they are totally willing to pay that price with other, innocent men’s lives.
Much as I appreciate the NACDL’s efforts to prevent this insanity from undermining constitutional rights, if only when it comes to sexual assault but not for crimes involving less loved victims or hated perpetrators, there is no reasoning involved here. The ABA has chosen its favorite, and will happily undermine law to achieve it. They know. They just don’t give a damn.
*The NACDL offers six points, only the first two of which are set forth here.
Men too often take upon themselves in the prosecution of their revenge to set the example of doing away with those general laws to which all alike can look for salvation in adversity, instead of allowing them to subsist against the day of danger when their aid may be required.”
Thanks for showing why the ABA , like the ALI, is on its way to doing far more harm than good.
One of the reasons I’ve spent as much time and energy dealing with the fiasco of Title IX (aside from the innocent accused having their futures destroyed) is that it was the precursor to what would happen in criminal courts, when concepts like rape were untethered from viable definitions and the demonization of due process, presumption of innocence and burden of proof enabled the well-intended woke to turn our already dubious legal system into an inquisition.
They’re trying. I’m fighting. With the help of some friends, Stuart (and KC).
It remains to be seen whether ABA will complete its agenda or its death spiral first.
It may be effectively bankrupt and wholly irrelevant to the profession, but it’s legacy status still gives it some degree of credence with legislators and judges, who ought to know better but don’t.
Oddly, there has been a deep silence for some months as to the results achieved by the much-heralded “new membership model.”
Are you suggesting the new logo didn’t save the day?
As shocking as that seems, it is looking as though that may be what happened. Even though there was a consultant and everything.
If so, we get what we deserve.
The victims have a legal burden? What are they even talking about? The pre-trial victim misnomer is ever-present, but is this civil law? Why would the “victim” have any legal burden at all?
It refers to a common element in old rape laws that the “victim” resist.
Ahh. Thanks for enlightening me. It would still be nice if whoever is writing these things at a supposed association of lawyers could precisely refer to an element of an offense that the government has the burden of proving. At this rate they won’t be able to rely on the “ABA” on the letterhead to convince people they know what they’re talking about for much longer.
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FIRE has now weighed in, calling on the House of Delegates to reject this resolution. Its post notes the hundreds of lawsuits filed by accused students over the absence of basic due process in campus proceedings subject to the “affirmative consent” proof requirement.
It remains to be seen whether the increasingly fanatical ABA will pay any heed, or simply disregard all the constitutional defects (as it did with proposed Rule 8.4(g)).
Sam at FIRE comes down on the right side of the issue, but doesn’t seem to have a real grasp the problem. It’s understandable, since she’s not a CDL, but her characterization as “guilty until proven innocent” fails to reflect a fair and sound argument. It was disappointing.
Please clarify the problem with Sam’s “guilty until proven innocent.” As detailed in the rest of her piece, that seemed a reasonable general point to me Onot a CDL either).
I thought the NYSACDL critique was very clear, but perhaps it’s less so without a basic grasp of criminal law. The defendant isn’t “presumed” guilty, as Sam twitted and suggests by her “guilty until proven innocent.” The prosecution would still be required to prove the elements of the newly defined offense:
1. There was a covered sex act.
2. The accuser did not consent to that sex act.
The evidence necessary to prove the two elements could be covered by the testimony of the accuser, but it would still need to be proven, subject to cross-examination, subject to credibility determination and, theoretically, found wanting. The problem is that if these elements are proven, the burden then shifts to the defendant to prove consent as if an affirmative defense. It creates a burden on the defendant, compelling him to testify or offer evidence to disprove the prosecution’s conclusory evidence of no consent.
There are numerous other problems as well which relate to this, but it’s unhelpful to call it “guilty until proven innocent” as that can be easily refuted and rendered a nullity.
From the “Executive Summary” provided the House of Delegates on this proposed Resolution, item 4 provides:
“4. Summary of Minority Views or Opposition Internal and/or External to the ABA
Which Have Been Identified
This is simply dishonest, and incorrectly suggests to the House of Delegates that there has been no adverse public comment on the proposal from lawyers in the ABA or other organizations.
Not if it’s limited to the views of the people they care about.
Another Resolution (115H if I recall correctly) endorses “basic income” as a human right. Looks like they are trying to cram everything through as the sun sets on their empire.
Resolution 114 (now 115) has been adopted as revised:
1 RESOLVED, That the American Bar Association opposes the imposition upon sexual
2 assault victims of a legal burden of resistance before legal protection attaches [balance struck].
That is confusing, but that one is from the Mid-Year meeting. Currently-proposed 114 “builds on” it, and I think has yet to be voted on by the House.
You’re correct. I was looking at the wrong set of resolutions.
I think they will start through the stack next Monday and Tuesday. At least 114 does not appear to be on the “Consent” list, meaning it might be “debated.”