ABA Resolution re Consent in Sexual Assault Cases Bad for All

I have worked on numerous sexual assault cases (criminal and civil) for defendants. They are always difficult: emotional and stressful, for all parties — and very often boil down to “HE SAID, SHE SAID.” Having seen how sexual assault and criminal sexual conduct cases so often play out, I, along with the defense bar, am concerned about the American Bar Association’s Resolution 114 set for vote next week eliminating implied consent.

The American Law Institute has considered this issue and rejected the ABA’s concept of affirmative consent. ALI instead adopted a definition that “consent may be express or it may be inferred from behavior—both action and inaction—in the context of all the circumstances.”

The National Association of Criminal Defense Lawyers is strongly opposed to the ABA Resolution 114. It drafted a NACDL Position on Res 114 summarizing the varied reasons why, including, and most alarming, the burden shifting in criminal cases in violation of the 14th Amendment due process and presumption of innocence.

The ABA definition of consent would require an EXPRESSED AFFIRMATIVE CONSENT to every sexual encounter. This is bad not just for defendants in a criminal or civil case, but for everyone.

Communication between humans is only 7% verbal. Imposing this standard in every intimate setting creates undue restrictions on every gender. Even more concerning, it creates possible criminal or civil liability in nearly every intimate encounter.

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