American Bar Association Votes Against Dropping ‘Innocent Until Proven Guilty’ for Sexual Assault

A picture taken on September 19, 2017 at Rennes' courthouse shows a statue of the goddess of Justice balancing the scales. / AFP PHOTO / LOIC VENANCE (Photo credit should read LOIC VENANCE/AFP/Getty Images)
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The American Bar Association’s House of Delegates voted to table a resolution to endorse the “affirmative consent” standard for sexual assault cases. A column from the Wall Street Journal earlier this week highlighted that the ABA would be considering the adoption of the resolution, which would effectively put the onus on people accused of sexual assault to prove their partner consented to sex.

According to a column by Professor KC Johnson of Brooklyn College and Stuart Taylor Jr., the American Bar Association (ABA) was considering a new policy that would put a stake in the heart of criminal due process. The policy was specifically designed to redefine consent in a sexual assault case by restructuring the evidence that is necessary to secure a conviction. According to due process advocates, it would effectively force accused individuals to prove they had the consent of their partner, instead of forcing the prosecution to prove they did not.

The policy would be used by the ABA’s House of Delegates to urge legislatures and courts to actually redefine the definition of criminal sexual assault.

The resolution, originally advanced by the ABA’s Criminal Justice Section and Commission on Domestic and Sexual Violence, says that the law should “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” and “provide that consent is expressed by words or action in the context of all the circumstances.”

Johnson and Taylor Jr. are not the only people sounding alarms over the policy proposal. The National Association of Criminal Defense Lawyers has pushed back aggressively against the proposal, arguing that the policy would result in the conviction of innocent men.

Due-process advocates have denounced the proposal. The National Association of Criminal Defense Lawyers calls it a “radical change in the law” that “assumes guilt in the absence of any evidence regarding consent . . . merely upon evidence of a sex act with nothing more.” By “requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent,” the association contends, any law based on the proposal would violate the Due Process Clauses of the Fifth and 14th amendments. Scott Greenfield, a New York criminal-defense lawyer, put the point more bluntly: It would “result in the conviction of innocent men.”

The organization voted on the matter, deciding to table the motion indefinitely by a vote of 256-165, what will be considered a win for due process advocates.

Update — The results of the vote were added to this story after publication.

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