Neal Sonnett is something of a legend in white collar criminal defense, so he can be forgiven his legacy involvement in the criminal justice section of the ABA long after so many criminal defense lawyers have walked away from this suicidal dinosaur.
But as the battle roared over Resolution 114, which was presented to the ABA House of Delegates with support and co-sponsorship of Criminal Justice Section, and in light of the scathing criticism of this effort to sneak affirmative consent under the noses of the Section, the HOD and the profession to the extent endorsement by the ABA mattered to anyone, Sonnett felt compelled to issue a statement, courtesy of the Center for Prosecutor Integrity.
Statement of Neal Sonnett, Member of the ABA Criminal Justice Section,
to the House of Delegates, August 12, 2019
We agreed to work with the Commission [on Domestic and Sexual Violence] on this Resolution, and that goes back to [Resolution] 115 at the mid-year meeting. And Mark Schickman and some others appeared at the Spring meeting in Nashville. It was late and things were getting rushed and they brought the recommendation to us. While there was dissent on our Council, the Council did vote to approve and vote to co-sponsor.
As we got closer to this meeting, we realized that we hadn’t paid enough attention to far-reaching implications of this new Resolution. After it was submitted, we realized that the intent of the drafters was to adopt a new paradigm. Let me repeat that: A new paradigm. This changes the law entirely with respect to sexual behavior.
The statement goes on, and I urge you to read it in its entirety. What is significant is that while this may not be a “new” paradigm to those of us who have watched it develop, first on college campuses to shift the understanding of proper sexual protocol from “no means no” to affirmative consent, and then filter into social media and the enlightened consciousness of the well-intended, if thinking-challenged.
While it didn’t have to be that the new “norm” of “yes means yes” had to filter from the campus kangaroo courts into real courtrooms, there was little doubt that it was the ultimate goal, that “believe the woman” and “trauma-informed” investigations would be pushed into the “real world.” There was little doubt that the definition of rape and sexual assault would be whatever the putative “victim” decided the conduct was, no matter when the decision was made.
Of this, there was never serious doubt, and it was reflected in the effort to get ALI to embrace it, and again when Mark Schickman and his Commission on Domestic and Sexual Violence deliberately omitted the fact that ALI rejected it from the information given the House of Delegates.
There are some serious implications to that. I had one judge who heard about it remarked that if the contents of the report – what was left out of that report – had been submitted to a Court in a brief, it not only would have been stricken, but the attorneys might well have been sanctioned.
There are lies of commission and lies of omission. Both are lies. And if that’s what it takes to get the goal accomplished, this “new paradigm,” they are willing to lie. This may not have been on Sonnett’s radar before, but it is now, as well as every member of the CJS Council, who unanimously voted to withdraw their co-sponsorship and support.