Many colleges and universities across the country have promoted the concept of “affirmative consent” on their campuses for several years now. These institutions openly encourage their students to receive a clearly articulated “yes” response, in words or actions, before proceeding with sexual activity.
The American Bar Association, the influential group representing the legal profession, this week was due to vote on a resolution that would urge state governments and court systems to adopt the same definition of consent in criminal sexual assault cases. After months of discussion and consideration among members, it appeared that the organization, which endorses policies and positions on legal matters, would actually do so. But the ABA changed course late Monday during its annual meeting and decided to table the resolution.
Mark Schickman, chairman of the ABA’s Commission on Domestic and Sexual Violence, believed that passing the resolution would be easy. He had already agreed to postpone a vote on it earlier this year in order to hear the concerns of other ABA members. 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.
He was wrong. The Criminal Justice Section’s governing board, a group of 40 individuals representing the 16,000 or so members of the section, unanimously withdrew its support from the resolution and instead decided to speak out against it during the House of Delegates’ floor vote.
"The topics were clouded so much that, walking into the vote, the word was nobody would vote for this resolution," Schickman said.
Neal Sonnett, a past chairman of the Criminal Justice Section, told the House of Delegates that the group had agreed to work with the commission but did not immediately realize the "far-reaching implications of this resolution," according to the ABA Journal.
“This is a new paradigm,” he said. “This changes the law entirely with respect to sexual behavior.”
After an hour of heated argument, the House of Delegates ultimately decided to table the resolution indefinitely. The delegates tried to take a voice vote, but it appeared too close to call. They then stood to be counted. The vote was 256 to 165 in favor of tabling the resolution.
The National Association of Criminal Defense Lawyers had also instigated a contentious campaign against the resolution, and due process advocates embraced the opposition and helped spread the word online. The advocates have been vocal in pointing out perceived flaws in university administrators’ methods of adjudicating campus sexual assault cases.
As a result, what started out as an under-the-radar move by the ABA has turned into a heavily politicized debate on Twitter.
The due process proponents largely emerged after the Obama administration in 2011 released guidance on how institutions should adjudicate cases under Title IX of the Education Amendments of 1972, the federal law barring sex discrimination and sexual violence on campus. While sexual assault prevention activists heralded the rules as providing survivors new protections, critics said they were slanted unfairly against those accused of sexual violence and denied them the right to due process.
The opposition’s main argument about the ABA resolution is that the definition of consent the commission sought no longer presumed innocence for the accused and instead shifted the burden of proof that a sexual encounter was consensual to the accused person in criminal sexual assault cases. The accused would be required to prove they had asked for consent rather than a prosecutor needing to prove a sexual encounter was not consensual. Critics said the change would be unconstitutional and violate the due process clauses of the Fifth and Fourteenth Amendments that, respectively, protect individuals' right not to incriminate themselves in a criminal prosecution and grant them equal protections under the law.
“The idea that we’re essentially taking what colleges define as consent and try to import it into criminal court is not appropriate,” said Lara Bazelon, a member of the Criminal Justice Section’s governing board, and a professor of law and director of the Criminal and Juvenile Justice Law Clinic and Racial Justice Law Clinic at the University of San Francisco.
Said Schickman, "Of course no one wants to change the presumption of innocence or the burden of proof. That's not what we're changing."
The prospect of changing the consent definition was first raised in fall 2018 and brought up for a potential vote at the ABA’s meeting in January. During that meeting, the organization's House of Representatives approved a resolution stating that the association opposed placing a legal burden on survivors to prove they had tried to resist a sexual assault for it to be classified as a rape.
Schickman said he wanted to continue the momentum from the passage of the first resolution but delayed a vote on the consent definition for six months until the ABA’s meeting this month to allow members time to study the issues. He filed the resolution’s language in mid-May, the required deadline for resolutions to be presented at this month’s meeting. Along with the resolution, he presented members with studies documenting that sexual assault victims sometimes freeze up and don't fight back or resist their attackers during an assault.
Schickman, who is also a lawyer with the San Francisco-based firm Freeland Cooper & Foreman LLP, said he heard no complaints from members at that time.
But then the National Association of Criminal Defense Lawyers published a four-page rebuttal to the resolution in July arguing that it “offends fundamental and well-established notions of justice.” The criminal defense lawyers discounted the research Schickman cited and wrote that criminal law “is an incorrect vehicle to impose novel social legislation designed to dictate social mores.”
Soon after, state and local groups representing defense lawyers started posting similar arguments online opposing the resolution, Schickman said.
The Foundation for Individual Rights in Education, a civil liberties watchdog in academe, wrote in a blog post that the ABA should “reject this resolution as a grave threat to the due process.”
“Affirmative consent standards are already common in campus disciplinary proceedings,” wrote Samantha Harris, vice president for procedural advocacy at FIRE. “As high as the stakes are on campus -- where students found responsible face the loss of educational and job opportunities as well as permanent stigma -- they are higher still in the criminal context, where those found guilty face imprisonment.”
The American Law Institute, another elite group of lawyers, judges and law professors, weighed in saying that it had voted down an attempt to add an affirmative consent definition into its Model Penal Code in 2016. It noted that the sexual violence commission, in an attempt to justify the change in consent definition, had misrepresented the history of that vote.
With a growing chorus of critics, Schickman and the commission revised the resolution’s language right before the vote, changing it to explicitly state that nothing in the resolution "changes the constitutionally guaranteed presumption of innocence, or the burden of proof."
Harris wrote in an email to Inside Higher Ed that the amended version of the resolution, while improved, still “changes the operative definition of consent in a way that invites arbitrary and selective enforcement.”
With so much misinformation and hesitation about the resolution being expressed, Schickman said it likely would not have passed. He said that the statements made by the defense lawyers’ association were an attempt to preserve a legal defense in sexual assault cases -- that survivors who do not fight back were not raped -- that the resolution would have weakened.
Terri Poore, policy director of the National Alliance to End Sexual Violence, said the group was disappointed that the resolution had not been approved. Few sexual assault cases make it into courts and fewer succeed, particularly among college students. The resolution would have helped remedy this, she said.
“We hope that the Criminal Law Section will continue its discussion, look at the research and find something they can support,” Poore said.
Where the resolution stands now is unclear. Bazelon said the current version is dead, but the House of Representatives posted on Twitter that it is likely to come back up at the association’s meeting in February 2020.
"We think the future is on our side," Schickman said. "When we talk to young lawyers and law students, this is the notion of getting consent from people that they believe in."