In Historic Win for Due Process, ABA Defeats Controversial ‘Affirmative Consent’ Measure

PRESS RELEASE

Rebecca Stewart: 513-479-3335

In Historic Win for Due Process, ABA Defeats Controversial ‘Affirmative Consent’ Measure

WASHINGTON / August 13, 2019 – Yesterday, the American Bar Association House of Delegates defeated an “affirmative consent” resolution that could have fundamentally reshaped the sexual practices of many millions of Americans. Following a contentious debate, delegates voted 256-165 to defeat the measure.

Relying on ungainly prose, revised ABA Resolution 114 stated, “RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the consent 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, provided that nothing herein changes the Constitutionally-guaranteed presumption of innocence, or the burden of proof, which at all times remains on the prosecution to prove every element of an offense, including without limitation lack of consent, beyond a reasonable doubt.” (1)

The resolution was opposed by a broad coalition of groups, including over 100 members of the American Law Institute, the National Association of Criminal Defense Lawyers and many of its state affiliates, and other organizations (2).

Prosecutors played a key role in defeating the measure. The Center for Prosecutor Integrity opposed an earlier version of the resolution because it “violates the Due Process Clause of the Fifth and Fourteenth Amendments by shifting the burden of proof to the accused person, effectively eliminating the presumption of innocence.” (3) The North Carolina Advocates for Justice, which consists of both prosecutors and defense attorneys, came out against the measure because it “offends fundamental and well-established notions of justice.” (4)

If the measure had passed and been enacted into state laws, prosecutors would have faced far greater difficulties in reaching a guilty verdict. In order to prove “beyond a reasonable doubt” that a “specific act” of sexual contact had not been consented, a full-length videotape of the couple’s amorous activities likely would have been necessary.

Affirmative consent has been ridiculed as an unworkable, mechanistic “Mother-May-I” approach that potentially criminalizes every good-night kiss and romantic interlude (5). Affirmative consent was once satirized in a Saturday Night Live skit (6).

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The Center for Prosecutor Integrity works to strengthen prosecutorial ethics, restore due process, and support criminal justice reform.