Adults may soon find their sex lives regulated to the point where nearly every sexual encounter is defined as rape unless neither party reports the activity.
The American Law Institute will vote in May on whether to adopt a model penal code that would make "affirmative consent" the official position of the organization. Affirmative consent — or "yes means yes" — policies have already been adopted by many colleges and universities, and have been passed as law in California and New York.
A source within ALI has confirmed to the Washington Examiner that the model penal code on sexual assault that was discussed at last year's meeting will be voted on at their annual meeting this coming May. Last year, the draft proposal was met with opposition from ALI members, including a female former prosecutor who called the draft "really disturbing."
A group of concerned members within ALI even circulated an opposition letter, signed by dozens of members, that detailed the dangers of pushing affirmative consent on the general public (not that it's a good policy for college students, either).
The Examiner was the first to report on ALI's draft penal code, which was still in the tentative stages in 2015. This year, however, the authors of the draft are back and the model penal code will be voted on by members. Should the code be adopted, it will be the official position of ALI that sex assault laws should be updated, and the group's influence may persuade federal and state legislatures to foist affirmative consent onto the general population.
The policies only apply at this time to college students, and require those students to engage in a question-and-answer session each time they engage in any kind of sexual activity. Those policies are already branding students as rapists due to the fact that the policies have been used to shift the burden of proof onto accused students. This means an accused student has to prove a crime didn't occur rather than an accuser proving a crime did occur, as is the norm in civilized society.
Under affirmative consent policies, there is no way to actually prove such consent was obtained. Students are required under the policies to ask permission for each level of sexual activity. So a typical sexual encounter would cease to be a passionate act and instead become a contractual, question-and-answer session. From the moment any physical contact is about to be made, one person must begin asking for permission.
"May I touch you here?" "May I kiss you?" "May I kiss you here?" and the like would all be required questions under such policies.
Activists can try and "make affirmative consent sexy" all they want, but no one has sex this way, and I can guarantee you the activists don't ask all those questions either, which would make them rapists under these policies. The policies claim that the person elevating the sexual encounter must be the one to ask, and if any step is missed … well, then it's rape.
Affirmative consent policies contain gender-neutral language, but are currently applying only to accusers — who are almost exclusively women and a few homosexual men. Even though the policies are supposed to apply to each party involved, once an accusation is made, the responsibility for obtaining consent is retroactively placed on the accused — who are almost exclusively male.
And even though these policies purport to help accusers, they still amount to a he said/she said situation. There is no way to prove affirmative consent requirements, and proponents of the policies have been unable — or unwilling — to provide any answer as to the question.
The only way to prove one followed affirmative consent policies is with video tape, as several male accused students have alleged that they did ask if the accuser wanted to have sex and received an affirmative response.
Besides turning every sexually active person in America into a rapist (and a rape victim) overnight, the affirmative consent policy would be a disaster in divorce court. Accusations of child abuse already fly in bitter divorces, and giving angry spouses a cudgel like this would do major damage (but would be a boon to divorce and trial attorneys, like many of the members of ALI).
Because that's what this is really about, right? Lining the pockets of lawyers who apparently have no concern for the presumption of innocence, due process or commonsense.
Ashe Schow is a commentary writer for the Washington Examiner.