Powerful, Prestigious Legal Organization Rejects “Affirmative Consent”

Imagine a group of people who propose to criminalize as “sexual assault” all deliberate physical contact not explicitly approved in advance by the recipient. Want to hold hands on a date? Ask permission or you might be jailed.  Do you know a single person who negotiates every touch in advance?  Is that how you have acted in your own sex life? Now imagine those people being members of an influential organization of legal scholars. Absurd? Yes. But comparable to an attempted redefinition of “sexual assault” defeated only after a decade long battle within the American Law Institute (ALI).

The ALI exists to facilitate similarity among state laws throughout America. Its Model Penal Code both reflects and influences the actual laws of states. In 2012 some ALI members began pushing to revise the Code’s sex crimes provisions. The proposed changes would have inserted a so-called “affirmative consent standard.” The first draft revision submitted to the ALI defined this as “a person’s positive agreement, communicated by either words or actions, to engage in a specific act of sexual penetration or sexual contact.” This classified as sexual assault any sexual contact the receiving party neither opposed nor expressly approved. In other words, normal initiation of sexual encounters was criminalized. More than that, it was placed in the same category as rape. No distinction was made between, say, married couples and people who just met. Until a wife gives “affirmative consent” her husband’s sexual touches would be illegal. Each “progression” of sexual activity would require further “affirmative consent.” And the proposed revision defined “sexual contact” to include any physical contact motivated by sexual intentions. Initiating a hug without permission and in hope of consensual sex would make someone a sex offender.

Other proposed changes included: 1) Putting “the burden of proof on the accused to prove consent was given at each stage of a sexual encounter.” 2) Introducing “unprecedented limits on defendants’ ability to introduce evidence suggesting innocence.” Defendants would have had the deck stacked against them.

Convicting rapists wasn’t the intention. The intention was “to change ‘existing social expectations’ and reshape social norms.” Ideological underpinning came from Stephen Schulhofer —NYU law professor and chief reporter for ALI’s 2012 sex crimes project. His goal is a “sexual autonomy” in which each person’s sexual behavior is uninfluenced by “external pressures.” He condemns all expectations of conformity—from strict religiosity to permissive “hook up culture.” He rebels against the fact that some types of conformity are essential to a functioning society. Conformity tells people what occurs and how to act in given circumstances. Lack of conformity makes it impossible to know what to expect or what will be expected by others. There are then two choices: 1) Unknowingly act in ways others find objectionable. 2) Replace normal human interaction with constant efforts to determine if behaviors are welcome.

A first official draft of proposed changes to the Model Penal Code was submitted in April 2015. A critical response was almost immediately submitted by 23 ALI members. Over 100 more soon added their signatures. The National Association of Criminal Defense Attorneys issued its own critique. In it the proposals were called “unconstitutional and an infringement on the presumption of innocence.” “Affirmative consent” was rejected by a large majority at the ALI’s next annual meeting. Its advocates, however, tried to reduce that rejection to meaninglessness.

In September of 2015 a new draft “dropped the affirmative consent approach for sex acts short of penetration.” That seemed to remove it as a criteria for other forms of sexual contact. More revisions the following December seemed to remove it entirely. “Contextual consent” would be the new standard. But “contextual consent” was “affirmative consent” under a new name. The December draft still maintained that "Neither physical nor verbal resistance is required to establish the absence of consent.” In other words a person who didn’t pull away or leave a room or say “no” still hadn’t “consented.”

These attempts have now been largely defeated. Just this month, revisions to the Model Penal Code’s sex crimes provisions received final approval from the ALI. These include the qualifier that “lack of physical or verbal resistance may be considered, in the context of all the circumstances, in determining whether the person has consented.” One ALI member described that phrase as rejecting “affirmative consent” in favor of a “willingness standard.”

ALI’s original Model Penal Code was enormously influential and was adopted in whole or in part by almost all states.  The proposed revision to the Model Penal Code makes clear that “affirmative consent” has no place in the law and would only be a trap for criminalizing virtually every person in America.
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