Model Penal Code Doesn’t Add Controversial “Affirmative Consent” Provision

Proponents of affirmative consent (discussed earlier here) argue that, to avoid sexual assault charges, you should have to prove your sexual partner gave clear, conscious and voluntary agreement to engage in sexual activity – and not just at the outset, but before each new action.

While this may strike you as closer to a protracted session of hard bargaining over a labor contract, or a bizarre game of Twenty Questions, than to ordinary romantic behavior, a similar mandate is part of so-called “yes means yes” conduct codes for college students in California, Hawaii, Illinois, New York, and, as of June, Connecticut.

Affirmative Consent versus “No Means No”

Advocates say it’s time for affirmative consent to replace the more familiar “no means no” standard – which holds that the activity must stop when a would-be partner indicates, by word or gesture, a sexual approach is unwanted. For affirmative consent advocates, that’s too outmoded and weak, since a partner might be too inebriated, shy or conflicted to express non-consent. Instead, they argue, society needs to make all sex acts conditional upon showing that each step in the sexual interaction was specifically approved in advance.

This school of thought has largely been confined to college campuses and other hotbeds of activism, but some advocates have sought to impose the affirmative consent requirement not just on the college crowd, but on everyone, everywhere. That was at the heart of the proposal before the American Law Institute (ALI), an elite legal advisory committee that drafts model legislation frequently adopted by Congress and state legislatures. In a project started in 2012, an ALI panel rewriting the Model Penal Code proposed switching the “consent” defense to a rape charge, to “affirmative consent.” The debate came to a head on May 17, at ALI’s annual meeting in Washington, D.C.

Affirmative Consent – Redacted

Unfortunately for ideologues and activists hoping to make affirmative consent the only way to justify sexual activities, but fortunately for those who believe laws should offer realistic guidance to acceptable conduct, the group voted down the proposed change, by voice vote.

Even before the vote, about 120 ALI members had sent a letter pointing out the affirmative consent standard’s plentiful defects. Foremost among these: it would reverse the burden of proof in sexual assault cases, forcing defendants to prove the acts were consensual in order to avoid guilt, rather than having prosecutors prove violations. And, as a practical issue, exactly how might you go about proving your amorous activities had in fact been welcome – eyewitnesses presumably lacking. I’m thinking legal waivers recited at appropriate moments.

The main advocates of the change probably did little to help their case by conceding they wanted to criminalize even “seemingly innocuous” behavior, in order to shake up “social expectations” and norms.

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