PR: ALI Drives Another Spike into the ‘Affirmative Consent’ Coffin

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Rebecca Stewart: 513-479-3335

ALI Drives Another Spike into the ‘Affirmative Consent’ Coffin

WASHINGTON / August 18, 2021 – The American Law Institute (ALI) has conclusively rejected an “affirmative consent” provision that would have fundamentally reshaped the sexual practices of millions of Americans. At its recent annual meeting, the ALI membership ended a decade-long, sometimes contentious debate by approving a “willingness” standard over an “affirmative consent” concept (1).

Beginning in 2012, some ALI members began pushing to revise the sex crimes provisions of its Model Penal Code. The proposed changes would have endorsed a so-called “affirmative consent” standard, which was defined as, “a person’s positive agreement, communicated by either words or actions, to engage in a specific act of sexual penetration or sexual contact.”

At its June meeting, the ALI membership confirmed its rejection of the “affirmative consent” standard. The body gave final approval to the definition of “consent,” which means “a person’s willingness to engage in a specific act of sexual penetration, oral sex, or sexual contact. Consent may be express or it may be inferred from behavior— both action and inaction—in the context of all the circumstances.”

The ALI dryly summarized a decade of heated debate with a one-sentence statement: “Approval of this draft marks the completion of the project, subject to the Council’s approval of the amendments approved at this Annual Meeting.” (2) A timeline of the ALI debate, including links to various draft documents, is available (3).

In 2019 the American Bar Association debated a resolution to endorse the affirmative consent standard (4). The Resolution was defeated after it was opposed by a broad coalition of groups, including the National Association of Criminal Defense Lawyers (5).

California, Connecticut, and New York have enacted laws that require schools to find against a student accused of sexual misconduct unless he or she can prove the accuser gave “affirmative consent.” The New York affirmative consent requirement was a key component of the 2015 “Enough is Enough” law that was championed by Gov. Andrew Cuomo (6).

In practice, these statutes presume guilt and place the burden of proof on the accused. In a decision overturning the University of Tennessee at Chattanooga’s decision to expel a student for sexual misconduct using the affirmative consent rule, Judge Carol McCoy ruled (7):

“[The accused] must come forward with proof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to an activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.”

Affirmative consent has been ridiculed as a mechanistic “Mother-May-I” approach that potentially criminalizes every good-night kiss and passionate hug (8).

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