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Commentary

American Bar Association Considering 'Affirmative Consent' Resolution That Would Destroy Due Process

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At its upcoming annual meeting, the American Bar Association will consider a resolution that would pressure state legislatures into adopting a criminal-law definition of sexual consent similar to the “affirmative consent” definition we see utilized on college campuses, according to the Foundation for Individual Rights in Education.

This seems rather benign on its face, but a deeper dig reveals some possible unintended consequences.

This is the resolution:

“RESOLVED, That the American Bar Association urges legislatures and courts 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.”

That seems pretty reasonable, doesn’t it? Rape is evil and sexual activity should be consensual. Unfortunately, it’s not that simple.

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This phrase should throw up a multitude of red flags: “to provide that consent is expressed by words or action.” When we start charging the accused with providing evidence of their innocence, due process has been thrown out the window.

According to this resolution, sex should be presumed to be nonconsensual until one can show evidence of affirmative consent. That plainly means that anyone charged with sexual assault would be assumed guilty until proven innocent, which is an affront to liberty and justice alike.

The burden of proof is always on the prosecution, and this resolution explicitly aims to shift that burden when it decries “any requirement that sexual assault victims have a legal burden of verbal or physical resistance.”

This would be disastrous if passed, but any law that follows such a resolution would likely be struck down, as it blatantly violates the Due Process Clause of the Fifth and 14th Amendments.

Does "affirmative consent" threaten due process?

Because of this, the National Association of Criminal Defense Lawyers is opposing this resolution in no uncertain terms.

Not only would these potential laws violate due process, but the NACDL also asserted that they would violate the right to remain silent, found in the Fifth Amendment.

The organization wrote that “the resolution will often force the defendant to testify in order to present evidence that consent was expressed.”

The NACDL is absolutely correct to oppose this horrendous resolution and any legislation that comes as a result.

By shifting the burden of proof, the ABA would be working to erode our fundamental rights as human beings.

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One of those rights is the right to be presumed innocent, regardless of who we are or what we are accused of doing.

This resolution, and any like it, must be rejected.

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Cade graduated Lyon College with a BA in Political Science in 2019, and has since acted as an assignment editor with The Western Journal. He is a Christian first, conservative second.
Cade graduated Lyon College with a BA in Political Science in 2019, and has since acted as an assignment editor with The Western Journal. He is a Christian first, conservative second.
Birthplace
Arkansas
Nationality
American
Education
BA Political Science, Lyon College (2019)




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