Will the ABA Reject Due Process? Activists push a resolution that would redefine sexual consent and convict innocent men of assault. By KC Johnson and Stuart Taylor Jr.
https://www.wsj.com/articles/will-the-aba-reject-due-process-11565559212
In August 2014 the University of Tennessee-Chattanooga deemed student Corey Mock guilty of sexual assault, finding that in the disputed encounter he failed to prove he had obtained “affirmative consent” from the accuser. According to Mr. Mock’s unrebutted testimony, the female student’s actions during intercourse led him to believe that she had consented to sex. Mr. Mock sued the school, and a Tennessee judge ruled in his favor. “Affirmative consent,” the judge wrote, “is flawed and untenable if due process is to be afforded.” The standard “erroneously shifted the burden of proof” to the accused.
Mr. Mock’s experience is hardly unique. State laws in California, Connecticut and New York require educational institutions to find against students or personnel accused of sexual misconduct unless they can prove the accuser gave “affirmative consent,” meaning a positive manifestation by words or actions of consent to each sex act during an encounter. In practice, as Janet Halley of Harvard Law School has noted, these statutes authorize “proceedings in which the decision maker effectively presumes guilt and requires the accused to disprove it.”
In the past few years thinkers and politicians of diverse ideologies have recognized the excessively punitive nature of the American criminal justice system. Against this backdrop, it’s incredible that the American Bar Association’s House of Delegates plans this week to consider a resolution that would urge legislatures and courts to redefine criminal sexual assault and apply standards like the one in the Mock case.
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.”
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.”
To be sure, rape and sexual-assault laws long were outrageously lenient. Husbands had legal rights to force sex on their wives, and many women were held not to be rape victims because they had not resisted fiercely, at risk of life and limb. Mindful of this history, NACDL excluded from its criticism a clause urging rejection of “any requirement that sexual assault victims have a legal burden of verbal or physical resistance.” But the rest of the ABA proposal would give prosecutors who cannot prove sexual assault an easy way to coerce guilty pleas from men who have committed no crime.
Advocates of the proposal cite dubious science in support of diminishing the constitutional rights of the accused. The report justifying the resolution touts “current research on the neurobiology of trauma,” including studies of “frozen fright,” which allegedly occurs when “a person confronted by an unexpectedly aggressive partner or stranger succumbs to panic, becomes paralyzed by anxiety, or fears that resistance will engender even greater danger.”
These claims are based on circular reasoning, as Emily Yoffe notes in a September 2017 Atlantic article. She notes the researchers argue not only that “the absence of verbal or physical resistance, the inability to recall crucial parts of an alleged assault, a changing story” should not “raise questions or doubt about a claim,” but that “all of these behaviors can be considered evidence that an assault occurred.” As Ms. Yoffe recognizes, this type of “science” already has played a prominent role in promoting unfairness in campus Title IX tribunals. The University of Mississippi, for instance, trained sexual-assault adjudicators that even lying by an accuser should be interpreted as evidence that the accused is guilty. By such logic, Ms. Yoffe writes, “the accused is always guilty.”
A more elite legal group, the American Law Institute, had already considered this issue. The ALI’s members voted overwhelmingly to reject affirmative-consent language proposed by activists who have for years sought to revise the group’s Model Penal Code. Rather than acknowledge this dramatic vote, the ABA report suggests that the ALI’s decision “is not yet final.” That characterization is misleading at best: A letter signed by more than 100 ALI members to the ABA’s president insists that moving forward on such an “obviously deficient” record would question “the essential integrity of the ABA.”
On Saturday, in a highly unusual move, the Criminal Justice Section—whose membership includes prosecutors and defense lawyers—voted unanimously to rescind its co-sponsorship of the resolution. But unless the Commission on Domestic and Sexual Violence reverses its position and agrees to pull the offering, the ABA House of Delegates will vote. If the resolution is adopted, it will stain the reputation of the nation’s largest organization of lawyers.
Messrs. Johnson and Taylor are co-authors of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”
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