The American public was spared — for now — the possibility of being labeled rapists overnight thanks to a new definition of what is and isn’t consent.
The American Law Institute was expected to vote Tuesday during its annual meeting on adopting a draft model penal code that would radically alter the way sex crimes are handled. But due to rigorous dissent and discussion by members, the vote didn’t happen. Instead, members voted on amending the current tentative draft’s definition of consent.
Two-and-a-half hours were allotted to discuss the amendment, introduced by Washington, D.C.-based attorney Margaret Love, as well as another amendment and, some were led to believe, the draft itself. But two hours and 20 minutes in, only the Love amendment had been discussed.
The amendment set to remove “affirmative consent” language from the draft proposal. The writers of the draft had already attempted to conceal the standard by renaming it “communicated willingness,” but ALI members weren’t fooled.
“A mess,” one attorney called the entire draft, even as he supported the Love amendment. “A mess,” is how I — an outsider — would have categorized the day’s event.
Member after member stood up to express their support or opposition to the Love amendment. Most supporting the amendment noted how it moved the draft, thankfully, away from the affirmative consent standard. A female attorney from New Haven, Connecticut warned the audience that “criminal law should not be at the vanguard of social change.”
Some supported the Love amendment, but claimed that even though it removed affirmative consent from the definition of consent, the policy still “haunted” the draft, as one attorney from Massachusetts stated.
The definition presented Tuesday morning, which was different from past drafts that specifically included affirmative consent language, defined consent as “a person’s behavior, including words and conduct — both action and inaction — that communicates the person’s willingness to engage in a specific act of sexual penetration or sexual contact.”
The word “communicates” was dangerously close to the affirmative consent standard, which has been applied to many colleges across the country and turns sex into a question-and-answer session that defines nearly all sex as rape from the default.
The new definition states that consent is “a person’s willingness to engage in a specific act of sexual penetration. Consent may be express or it may be inferred from behavior, including words and conduct — both action and inaction — in the context of all the circumstances.”
This definition was accepted as more agreeable, but still confusing. One former prosecutor and criminal defense attorney said the definition was too complicated and that juries would be “tied up in knots” trying to figure out exactly what it meant.
Still, many members agreed with the draft’s affirmative consent language. A California attorney (California has forced affirmative consent on its college students, but not the population at large) predictably defended the original wording, and brought up contract law. Because that’s how sex should be conducted, right? As a contractual agreement rather than a passionate act.
Another attorney suggested people were only confused by the definition because of “hundreds of years” of “abuse of women.” She also used an incredibly simplistic analogy of sex, by comparing it to inviting someone in to one’s home. A person must be invited into one’s home before entering, and the same should go for sex, she said.
Except sex isn’t that simple. People don’t ask: “May I have sex with you?” and they don’t typically say “come have sex with me.” There is so much more than that. Comparing sex to theft or tea or entering someone’s home ignores the nuances and passions involved in the act.
The Love amendment eventually passed, though not without difficulty. Once or twice during the discussion, someone stood up to try to amend the amendment — and that required a vote. Even when the Love amendment was voted on, it was broken into pieces, requiring multiple votes and much confusion.
ALI’s Second Vice President Lee Rosenthal was leading the discussion, and couldn’t keep the votes straight. I don’t think she once was accurately able to explain what the members were voting on, and in fact had to be corrected multiple times.
Then there was ALI President Roberta Cooper Ramo, who at one point took the microphone to suggest that if the draft weren’t adopted, we would be “going back to 1962” — a reference to ALI’s current model penal code that is horribly outdated. This led to jeers from the members. It was an unfair and disingenuous characterization from the president, who appeared to be suggesting that if this draft — which is clearly not well liked by many members of ALI — wasn’t adopted, the members were supporting an ancient, “Mad Men” view of rape.
After the Love amendment was adopted, a second amendment — that would amend the Love amendment and bring it back to the affirmative consent definition — was rejected by ALI members.
All of this just for one section of massive draft. A second section was supposed to be discussed, but there wasn’t enough time (lawyers need their lunch).
Erin Murphy, a New York University law professor who is one of the main drafters of the project, said the discussion was “ALI at its best,” but reminded me that affirmative consent was her original goal.
“The draft that we proposed was obviously what we initially viewed as the best way going forward, but I was very impressed by the arguments made by those in support of the view that ultimately prevailed,” Murphy said. “And I think it’s, again, ALI at its best to see the process airing these really important and legitimate concerns on all sides to reach a resolution that’s not just the right resolution on the law, but something that’s workable.”
Ashe Schow is a commentary writer for the Washington Examiner.
