A large group of members of the American Law Institute have written a letter in opposition to an upcoming vote that would vastly expand the definition of sexual assault in the legal system.
The letter, signed by nearly 120 members, including lawyers, judges and law professors, highlights several concerns regarding a draft model penal code that ALI members will vote to adopt on May 17. I previously wrote about issues with the draft, but was assured by an ALI member that many of my concerns have been addressed in the current version.
The ALI members who signed this letter have copies of the draft that will be voted on this month, and it turns out there are still dangerous issues that have not been addressed that will turn every sexually active American into a criminal overnight.
For starters, the draft has rebranded the “affirmative consent” standard previously criticized as “communicated willingness.” Whatever you want to call it, it requires each person involved in sexual activity to essentially treat sex like a question-and-answer session, with each party asking question after question and receiving a clear reply before escalating the activity. This is not how sex works, and the signers of the opposition letter write that such language creates a starting presumption that sex is a crime.
“The prosecutor need only say, ‘Ladies and Gentlemen of the Jury, under the State’s definition, it does not matter whether the complainant actually was willing,” they wrote. “It is undisputed that the sex act occurred and there is no evidence in the record that the complainant communicated willingness. There is no consent if the complainant has not communicated willingness. You must convict if you find that the defendant recklessly disregarded that absence of consent.”
Such a definition would shift the burden of proof onto the accused, something not currently permitted in the U.S. criminal justice system. The accused would have to prove that they received “communicated willingness.” This would mean that any time someone engages in sexual activity, they not only have to make sure they obtain this specific form of consent, but also proof of this consent. And outside a videotape, there’s really no way to get proof.
The draft’s detractors note that the weight of the burden is not defined in the current draft. “Whether it is a burden of going forward, a burden of proof, a burden to establish an affirmative defense or something else, the defendant has been burdened to disprove guilt,” they wrote.
The letter includes criticism from the National Association of Criminal Defense Lawyers, which call the burden-shifting unconstitutional and an infringement on the presumption of innocence. It would also result in forcing the accused to waive their Fifth Amendment rights, as they would have to testify on their behalf — not because they have something to hide or because there is evidence against them, but because the absence of proof shifts the burden onto the accused.
The current draft also increases penalties for smaller violations from misdemeanors to felonies requiring at least five years in prison and registration as a sex offender in most states. It also fails to delineate for those having sex “under what circumstances a person is safe from criminal accusation,” the signers wrote.
One final disturbing revelation in the letter is that, during a March 23 meeting on the draft, an ALI member mentioned that some of his accused clients have been committing suicide, and mentioned the treatment of accusations as if they were convictions as a possible reason. Another member met that statement with apathy. This is one of the major problems with ideologues trying to change society through aggressive laws — they only care about one side of the issue. The signers added that the draft had many, many more problems but there was simply not enough time to get to them all.
All ALI members need to think very carefully about the draft they will vote on next week.
Ashe Schow is a commentary writer for the Washington Examiner.
