The American Bar Association on Monday avoided a massive violation both of common sense and of constitutional due process rights. Let’s hope its pullback from serious error marks a move toward the revival of cultural norms, rather than legal strictures, to govern complicated areas of human interaction.
At issue was a so-called “affirmative consent” resolution. In its earlier iterations, this resolution effectively could have set a standard by which someone could be charged with sexual assault not just if he continued physical overtures after being told “no,” but if he undertook any overtures before specifically requesting permission. Imagine a high school senior being charged with assault for brushing the lips of his prom date without first stopping himself and asking, out loud, “May I kiss you?”
The final resolution wasn’t quite so ridiculous, but it still was misguided. Here is the exact wording of revised ABA Resolution 114:
Even this language was a bad idea. As the American Legal Institute put it in a letter to the president of the ABA, the resolution would come “at the expense of the largely tacit ways that people engage in sexual behavior in the real world. There was concern expressed [at ALI annual meetings] that the definition covered behavior that was innocent, and that the criminal law should not dictate sexual mores in this evolving era.”
The ALI wrote further that the ABA’s suggested standard is “based on bad history and bad science,” and thus would make bad law.
Not only did the ALI urge the ABA to withdraw its proposal, but both the National Association of Criminal Defense Lawyers and groups of prosecutors joined the broad-based opposition to the measure. Many of them argued that the proposal would, in the words of noted legal writers Stuart Taylor and K.C. Johnson, “violate the Due Process Clauses of the Fifth and 14th amendments.” It would do so by, in effect, assuming guilt in the absence of verbal or patently obvious non-verbal cues.
While it is good news that the powerful ABA did not pass the resolution, it is still worrisome that it received 165 of 421 votes (39.2%). This is evidence of a continuing pathology in which formal law replaces and pollutes human interactions, whose gray areas always have been governed by informal cultural mores. If law “preempts the active intelligence and moral judgments of people on the ground,” writes longtime legal and governmental reformer Philip K. Howard (in a slightly different, but related, context), then “human instinct … [becomes] pulverized by law.”
Sexual assault is a serious offense, and should be penalized severely. The law, however, need not step in every time a momentary misunderstanding arises. Humans are social creatures. Both social interactions and mutual, long-term understanding grow richer when informal, organic interplay is allowed (mostly) free rein.
There’s nothing wrong with a clear, bright line that insists “no means no.” There’s everything wrong with a government trying to take everything implicit out of romance.
