American Bar Association: Reject the ‘Guilty Until Proven Innocent’ Affirmative Consent Resolution

Samantha Harris, over at the Foundation for Individual Rights for Education, is urging the American Bar Association to reject a resolution designed to get state legislatures to define sexual consent in the same ambiguous ways that college administrators do, describing it as “disastrous for due process if this resolution were to pass.”

Here’s 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.”

Harris astutely observes, “by making sex presumptively nonconsensual unless and until someone can produce evidence of consent, affirmative consent standards effectively shift the burden of proof to accused parties to prove themselves innocent.”

That’s a very good point. How hard would it be to “prove” that a sexual encounter was consensual?  Do we now need precoital contracts that one needs to whip out before any romance occurs?  Instead of wine and roses, will the seduction process include signing forms in triplicate?

I believe sex should be enjoyed within the bounds of marriage, but that’s not how the world works. This “affirmative consent” parameter runs rampant in the college kangaroo courts and does not need to seep out into the larger culture.  “Not only has affirmative consent proven confusing, but the state of due process and fair procedure is so bad that over the past eight years, more than 500 accused students have filed lawsuits alleging that they were not afforded even the most basic procedural protections before being found responsible for sexual misconduct,” Harris writes.

It is already a serious threat to students accused of this horrific crime.  Students might not get degrees, might get kicked out of programs, and will be stigmatized forever.

But in the regular world, the consequences would be worse.  People found guilty of these crimes would face prison.

I’m not saying rape is not a big deal.  I’m saying that it is SUCH a big deal, we need to get the convictions right.

This affirmative consent non-sense already threatens American college students.  The American Bar Association should not let it threaten to the rest of the nation, too.

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