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.