The ABA Just Rejected “Affirmative Consent” Rules for Sexual Assault

Here Are Three Take-Home Lessons for Campus Sexual Assault and Title IX Cases

The American Bar Association just rejected a proposal to incorporate “affirmative consent” into American criminal law.  There are three take away points for campus rules regulating sexual assault and Title IX enforcement: 

  • “Affirmative consent” rules lie far outside the mainstream of American justice, despite their almost universal adoption by the university and college campus quasi-judiciaries.
  • Campus sex rules increasingly separate colleges as a world apart from mainstream understandings about consensual sex.
  • Advocates of “affirmative consent” and the new campus rules are unabashed utopians.  In the heated debate within the ABA, “affirmative consent” advocates proposed to create new social values by making more common understandings of consent to sex illegal.

The ABA Overwhelmingly Rejected “Affirmative Consent” Rules for Sexual Assault

The American Bar Association overwhelmingly rejected a proposal that, if passed, would have aligned the United States’ leading professional organization for practicing attorneys behind an “affirmative consent” standard for the criminal law of rape.  This would have aligned the criminal law with higher education conduct codes enacted to end rape on campus.  

The ABA, however, overwhelmingly rejected “affirmative consent” by a vote of 256 delegates to 165.  The ABA’s Criminal Justice Section also unanimously withdrew support for the measure.

In 2016, the American Law Institute had already rejected a similar proposal for the Model Penal Code.  The Model Penal Code is an influential model statute for criminal law that the ALI has published and updated since 1962 as a guide to state legislatures.  It represents the codified thought on criminal law by countless judges, practicing lawyers, prosecutors, defense attorneys, and law scholars over the course of over half a century.

Activists have promoted the “affirmative consent” standard since the early 1990s.  This younger movement still claims quite a pedigree. It arose first on liberal-arts college campuses.  Its origin is usually attributed to a student group called the Womyn of Antioch at Antioch College, who successfully petitioned their school to amend its code of conduct in 1991.

The Womyn of Antioch wanted a requirement of “sexual consent,” defined by, among other things, asking for and obtaining an unambiguous “Yes.”  They placed the burden on the person initiating sex to ask for the unambiguous “Yes.” Previously, Antioch focused on sexual misconduct based on whether someone said, “No.”  Antioch adopted the 1991 rule to insist on a “yes-means-yes” standard.  The eventual rule had no fewer than 14 elements defining the unambiguous “Yes.”  

The ABA proposal was not so complex.  It defined affirmative consent 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 … expressed by words or action in the context of all the circumstances.”  And the proposal also expressly rejected “any requirement that sexual assault victims have a legal burden of verbal or physical resistance.”  

Under this standard, where an accused cannot show evidence of affirmative consent, he is guilty of rape.  

Many argued, including the National Association of Criminal Defense Lawyers and eventually the Criminal Justice Section of the ABA, that this unfairly placed the burden of proof on the accused, which is antithetical to American criminal law.  The burden of proof in a criminal case is on the state, not the defendant, who is presumed innocent until proven otherwise.  

This should also hold for the campus context.  The burden of proof is supposed to fall on the university’s quasi-judiciary, not on the accused student to prove innocence.  

The Difference Affirmative Consent Makes in the Rules of Sexual Misconduct

Consent is not a newly discovered concept.  “Consent” remains definitive in the crime of sexual assault, even where “affirmative consent” rules do not apply.  In my state of Connecticut, for example, sexual assault is defined as compelling another person to engage in sexual intercourse by the use of force or by the threat of force – that is, against the person’s will and consent.  Likewise, engaging in sexual intercourse with an individual who is mentally incapacitated “to the extent that such other person is unable to consent” (e.g. through drugs or alcohol) is also 1st Degree Sexual Assault in Connecticut.  These are mainstream definitions of rape, and consent has always been a part of them.

But advocates of “affirmative consent” want to go further.  Under their definition, it would be sexual assault unless there is evidence of an affirmative expression of consent given by the alleged victim, either through unambiguous actions or express words.  

Given that no accusation of rape is brought unless the alleged victim claims that the sex was non-consensual, this is why opponents object that “affirmative consent rules” automatically place the burden on the accused to prove innocence.

Advocates of “affirmative consent” rules share an obviously laudable goal: they want to support everyone’s right to have sex only when they want to.  Few would deny that many women as well as men have been victims of sexual assault but have not received justice. Advocates object to laws that require evidence of coercion, incapacitation, or use of force for there to be a criminal prosecution of “rape.”  The universe of sexual contact that is genuinely unwanted includes much more behavior than violently coerced sex or the full incapacitation of the victim.

Advocates would therefore significantly lower the threshold for rape:  For example, if someone alleges that they did not consent to sex but what was said was misunderstood, this would be a viable claim of rape under affirmative consent statutes despite the absence of any coercion and even if the alleged victim remained sober, in full control of the power to say, “no.”  

Take Away #1: “Affirmative Consent” Rules Are Not Mainstream

But the “affirmative consent” movement is outside the mainstream of American law.  

No states have adopted affirmative consent as criminal law.  Almost all criminal law lies in the sovereign authority of the states, not the federal government.  It is decentralized. But neither “red” states nor “blue” states have adopted the affirmative consent standard.

Now both the ALI has rejected this standard for the influential Model Penal Code and so has the American Bar Association.  It therefore appears unlikely that states will change their mind in the foreseeable future.  

A small minority of states have adopted affirmative consent rules, but in only one context, namely exclusively for college campuses.  These states include Connecticut as well as California, Colorado, Illinois, and New York.  

This rejection of “affirmative consent” in the criminal law makes clear that campus rules governing sexual assault are not the norm.

Of course, colleges and universities, especially private ones, are fee to adopt their own rules of student conduct independent of the criminal law.  Across the country they have almost uniformly adopted some form of affirmative consent through student codes of conduct or other policies, handbooks, and honor codes.

The practical effect is that sex on campus is subject to completely different rules.  Higher education has set up new sex rules that apply only to college students (and in some cases to faculty).  These rules apply nowhere else and to no one else, but they do not conform to widely accepted definitions of sexual assault and rape in the rest of society.  

Take Away #2: Higher Education Has Become a World Apart for Sex

Higher education is the only domain in which “affirmative consent” rules have taken root.  The university has always been a world apart for the pursuit of truth and learning. Now it is becoming a world apart for private sexual relations.  

It is easy to understand how this basic impulse arose.  Few would disagree that the mission of universities is to educate young men and women from all backgrounds with the knowledge they will need to push forward the frontiers of science and learning and drive the great American project forward.

It seems less clear, however, that universities should be regulating the intensely private realm of sex via quasi-criminal rules over which administrators in campus judiciaries sit in judgment.

For one, federal courts are signaling that the separate university sex rules are not accepted as a legitimate function of higher education.  The campus quasi-judiciaries are now being sued everywhere by experienced higher education law attorneys, and the plaintiffs are winning.  

As only one example, a judge just ruled against Harvard University, arguably America’s most prestigious university with the greatest, world-wide name recognition.  In that case, Harvard proposed to end same-gender fraternities, sororities, and other social clubs.  It saw these as undesirable institutions encouraging unwanted sexual behavior among male students and encouraging unwanted acquiescence among female students.  Harvard argued for the need to end backward sexual relations and cast opponents of the new policies as proponents of misogyny, bigotry, and other social ills.  

The Harvard policies were targeting—not criminal behavior that everyone abhors and recognizes as sexual misconduct—instead Harvard was claimed a loftier goal to “produce individuals who … act as modern men and women should” with regard to sex.  

The court disagreed and answered, “No.”  The policy violated Title IX. It was Harvard, not its opponents (at least on the facts presented in the complaint), that presumed archaic stereotypes of male and female behavior based on gender.  And this is an illegal violation of the law of Title IX.

Advocates of new campus procedures and sex rules have also attacked fundamental due process rights such as the right of cross-examination and the presumption of innocence.  The position seems to be that centuries old, bedrock traditions of American law endanger the mission of schools like Harvard and many others to create a new regime for campus sex, which proposes to protect students with campus sex rules.  

These advocates may certainly be correct:  Due process rights may well impede the social change they so passionately desire.  But changing social values is a messy business, and many, including many prominent feminists, do not see the law’s traditional stickiness in the face of change as an undesirable outcome.  The increased number of lawsuits against universities and colleges throws into stark relief that campus judiciaries not only operate in a world apart, but that the larger world does not necessarily accept their authority over individuals’ private sex lives.

Take Away #3: New Women and New Men

The proponents of “affirmative consent” are utopians.  As Harvard’s justification for eliminating same-gender organizations suggests, the movement for unique campus sex rules aims to create new sexual norms, new men, and new women.  Its advocates are unabashedly utopian in this sense.

This was made clear by the labor and employment attorney Mark Schickman.  He was the Chairman of the ABA Commission on Domestic and Sexual Violence and led the “affirmative consent” movement within the ABA.  

To promote “affirmative consent,” Schickman wrote to all ABA delegates in an email, since made public through a criminal defense blog.  He vehemently disagreed with any and all who opposed the affirmative consent standard, because, he asserted, they hold the view that “the law is not a vehicle to change social mores.”  

“We think it is,” he trumpeted.  There has rarely been a franker statement that the purpose of “affirmative consent” is to fundamentally change Americans’ sexual values and practices.

Undeniably, advocacy movements promote social change.  They seek, sometimes successfully, to form broad public coalitions around new values.  Social progress is scarcely conceivable without this process. But Schickman and his allies have a different strategy: that want to make illegal mainstream standards for consent and responsibility in ordinary, private sex, standards widely accepted and practiced by both men and women.  

In the face of resistance, he accused his opponents of being “anachronistic,” standing on the wrong side of history, degrading women as “spoils of war,” treating women as property, and many other things.  The gist (as relayed by one observer): people, including many women, who disagree with Schickman and his fellow advocates should be considered the moral equivalent of knuckle-dragging troglodytes.  

This hardly seems likely to make friends and influence people, let alone change mainstream expectations about consent in something as private and freighted with conflicting emotions as sex.

What If You Are Involved in a Title IX Claim?

Title IX rules and the campus courts are diverging so much from the criminal law, and the expectations of consent and responsibility are so different inside of academia, that you should seek help from experienced education law attorneys to help guide you through the process.  If you believe you are being discriminated against or have a complaint, call us.  We understand the campus judiciaries. We have counseled students who have brought complaints of sexual misconduct as well as accused students.  We understand your problem and how universities work. We know how to help. Contact us today for more information or to schedule a consultation.