“Neither Liberty Nor Property Is Safe When the Legislature Is In Session.” Does This Suggest State Legislatures Can Reverse Federal Constitutional Protections?
“The American Bar Association’s House of Delegates rejected a resolution to endorse the affirmative consent standard, which holds that an [sexual] encounter should be considered assault unless each participant obtained a clear yes before every sexual act.
The resolution called for 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” and “provide that consent is expressed by words or action in the context of all the circumstances,” according to KC Johnson and Stuart Taylor, Jr, who wrote about the matter for The Wall Street Journal:
Due-process advocates have denounced the proposal. The National Association of Criminal Defense Lawyers calls it a “radical change in the law” that “assumes guilt in the absence of any evidence regarding consent . . . merely upon evidence of a sex act with nothing more.” By “requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent,” the association contends, any law based on the proposal would violate the Due Process Clauses of the Fifth and 14th amendments. Scott Greenfield, a New York criminal-defense lawyer, put the point more bluntly: It would “result in the conviction of innocent men.” 1
(From Insider Higher Ed.)
“Mark Schickman, chairman of the ABA’s Commission on Domestic and Sexual Violence, believed that passing the resolution would be easy… He had secured co-sponsorship of the resolution from the ABA’s Criminal Justice Section, made up of criminal defense lawyers, prosecutors, academics and others invested in criminal justice issues. The resolution drew praise from advocacy organizations for sexual assault survivors.
And despite some dissent among Criminal Justice Section members who opposed endorsing the resolution, Schickman said he didn’t anticipate resistance to it once it came to a vote by the ABA’s House of Delegates, which approves final policy for the association.”2
1. ROBBY SOAVE, “IN WIN FOR DUE PROCESS, AMERICAN BAR ASSOCIATION VOTED AGAINST AFFIRMATIVE CONSENT,” REASON (AUGUST 13, 2019)
2. JEREMY BAUER-WOLF, “LAWYERS’ GROUP DISAGREES ON COLLEGE MODEL OF ‘AFFIRMATIVE CONSENT’,” INSIDE HIGHER ED. (AUGUST 14, 2019)
Disclosure: I long ago resigned membership from the American Bar Association.