Affirmative Consent

In Win for Due Process, American Bar Association Voted Against Affirmative Consent

ABA's House of Delegates voted 256-165 to indefinitely table the motion.


The American Bar Association's House of Delegates rejected a resolution to endorse the affirmative consent standard, which holds that an encounter should be considered assault unless each participant obtained a clear yes before every sexual act.

The House of Delegates meets yearly, voting on whether to reject or adopt various proposals that then become formal ABA policy. The affirmative consent proposal went doubt to defeat by a vote of 256-165.

The resolution called for state legislatures to "define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact" and "provide that consent is expressed by words or action in the context of all the circumstances," according to KC Johnson and Stuart Taylor, Jr, who wrote about the matter for The Wall Street Journal:

Due-process advocates have denounced the proposal. The National Association of Criminal Defense Lawyers calls it a "radical change in the law" that "assumes guilt in the absence of any evidence regarding consent . . . merely upon evidence of a sex act with nothing more." By "requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent," the association contends, any law based on the proposal would violate the Due Process Clauses of the Fifth and 14th amendments. Scott Greenfield, a New York criminal-defense lawyer, put the point more bluntly: It would "result in the conviction of innocent men."

Affirmative consent is perfectly benign if contained to the realm of cultural prescript: It's fine to assert that active, enthusiastic, previously-agreed-to consent is ideal in sexual encounters. But enshrining this standard as a matter of law would mean criminalizing sex in cases where it can not easily be proven that both parties expressly communicated prior consent. On college campuses that have moved toward an affirmative consent standard, the de facto burden of proof has shifted to the accused—often male athletes of color—who face expulsion and lifelong pariah status unless they can provide evidence that each and every stage of a late-night, drunken sexual escapade that neither party remembers very well had garnered an inarguable affirmation before it began.

It's a relief that this illiberal standard did not make the jump from Title IX star chambers to ABA policy.

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  1. Affirmative consent attempts to make rape a general intent crime. Rape has always been a specific intent crime. That means that mistake of fact is a defense to rape. If the defendant can create reasonable doubt in the jury’s mind that he reasonably thought the victim was consenting, the jury must acquit.

    Affirmative consent ends that. Since any situation where the victim didn’t consent is “rape”, the accused is guilty even if he reasonably thought the victim was consenting. Affirmative consent produces situations where an accused honestly and reasonably believed the victim was consenting yet is still guilty of rape. That is horrific to say the least.

    1. Affirmative consent presents an impossible metric to prove ones defense. This is especially true in light of court cases, especially in colleges, where they’ve stated a woman is able to withdraw her consent without even saying or acting on a audible/visible withdrawal. In one case a college even accepted a withdrawal after conclusion of the act. Likewise the complainant can claim she was drunk or state she did not consent to video tape or recording of the event, disallowing evidence in trial.

      It is a complete clusterfuck and rape of the legal system to push for affirmative consent.

      1. It would lead to a situation where both parties would be incentivized to immediately withdraw consent and contact law enforcement at the end of their time together, just to protect themselves.

        It also opens up the possibility that both parties silently withdraw consent at the same time and thus are both guilty of assaulting one another.

        In other words, it is absurd for many, many reasons.

      2. So womyn are weak and vulnerable and fickle if not unstable, and thus entitled to special legal status in order to provide protection.

        Did I get that right?

      3. In colleges it seems that women can withdraw consent retroactively.

    2. And let’s not forget retroactive withdrawal of consent; aka fuckers remorse.

  2. They arent giving up. The liberal members of the various legal associations have been trying to get people to vote for affirmative consent for about 3 years now. It gets closer everytime. Liberals dont care about the presumption of innocence when it violates their political narratives.

    1. Even I am not cynical enough to have ever thought liberals would get to the point that they would see Gregory Peck as that villain in To Kill a Mockingbird. But, that is why I get for not always expecting the worst from them.

      1. Any means to assert power over ones opponent is justified under modern liberalism.

      2. I thought of that as well. So how does intersectionality rate women vs. “male athletes of color” nowadays?

        1. Male = privilege
          Athlete = privilege
          of color = oppressed

          So +1 privilege, a white male athlete is +3. Points either way for straight or gay.

    2. The ABA has been taken over by progressives, as shown by their adoption of the ridiculous new “anti-discrimination” rule in 2016 — “It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

      1. Thank God the ABA is nothing but a debating society. State Supreme Courts run the state bar associations and have the real power.

      2. I’m sorry, was that supposed to be sarcasm? What do you find objectionable about this?

    3. They aren’t giving up.

      Of course not, 40% of voters already support them.

      This is not the first time Affirmative Consent has been brought up. Some left wing activist college (Antioch?) implemented it back in the 90s and rescinded it after be sufficiently mocked they worried about their enrollment. So it went away for two decades until the radicals had taken over enough of academia it could be generally implemented thus insulating individual institutions.

      Similarly this will come up periodically until the left has put enough extremists in the voting bloc to pass.

      1. I remember that. I lived in Dayton and went to Yellow Springs often then. Antioch was a hippie kinda place as was the community. No grades that sort of thing.

        There was a place called Young’s Dairy. We would take the kids there. Best ice cream I have ever eaten in my life. The children could feed and pet the goats they had, that sort of thing.

        So we all laughed because the College came out with this ridiculous set of strict rules for sex. Like, have you ever had sex? That is not how it goes. I suppose the rules just went away.

    4. I was gonna say, 165 folks said yes, that’s a significant amount out of the group to agree to this crazy standard.

      1. Yes, just over 39% of the ABA House of Delegates seem to believe that the Title IX “Dear Colleague” standards should be the law of the land.

        That is disturbing. Thank God for the Federalist Society and their influence on so many judicial appointments at this time.

        1. So what happens if the ABA passes this resolution? It has to go through state legislature to become law, correct? They heavily influence the legislature? Or are we subject to the whim of unelected members of the ABA?

          1. As John said, as far as law goes they are a debating society; and at least 61% are against affirmative consent, though that 39% for it disturbs me. This will not be the end of the notion.

  3. Why do you have a photo of the statue at the Old Bailey for an article about the American Bar Association.

    1. Because our laws originate from English common law?

    2. Because the Reason style guide prohibits a photo that actually relates directly to the story.

  4. “often male athletes of color”

    You were doing so well, until you turned this into a racial thing. Affirmative consent is unjust, regardless of the color of the accused.

    1. +100. It isn’t any less of an abomination when it applies to pasty, skinny white guys like Soave.

    2. Trolling the progressives trying to make their heads explode? That is how I like to read these Soave sentiments anyway.

    3. That is it an injustice regardless of color is clearly true. Yet it is also true that statistically it affects male athletes of color at a greater rate than it affects women or whites.

      The comment also subtly points out the hypocrisy of those who simultaneously claim that the system is rigged against young black men while promoting a policy which has the demonstrated effect of rigging the system against them even further. In other words, I don’t think that line was intended for you or me. I think it was intended to drive a wedge between social justice warriors by demonstrating how policies which benefit one constituency will harm another.

      1. Anecdotally I would say more high profile cases are minorities (athletes), but the ones I’ve read here and there are more often white frat members.

    4. I think he’s just trying to make the SJWs realize that this policy most often harms one of the groups they usually are most keen to protect. That way maybe they’ll actually pay attention to the rest of the argument.

      1. They’ll just plug it into their intersectional hierarchy and go from there.

        1. (+) points for people of color, (-) points for athlete. The negative points for athlete may subsume the positive points for color, but I don’t have the intersectionality charts at my disposal.

          1. “I don’t have the intersectionality charts at my disposal.”

            I hear they’re very fluid; best reference is Yale’s directions regarding Halloween costumes.

    5. Personally, I love that shit. I met someone that was big into this stuff – “believe ALL accusers” was her mindset. When I brought up that there is a long history of white women falsely accusing black men of rape (in effect, using the state to murder people) and I (totally bullshitting) speculated that such a view of sexual consent would undoubtedly be used the same way today. I could tell just how conflicted this made her feel.

      These people hate it when others point out that their various pet issues are contradictory to one another. Its a good tactic to make people that otherwise lack self awareness to examine their beliefs. I wouldn’t dismiss this kind of argumentative tactic outright. Baby steps.

      1. Good. You should consider yourself a libertarian evangelist if you can get anyone with such a closed mind of “wokeness” to consider any view but their own.

      2. At least she admitted it’s “Believe All Accusers.” Most leftists beg the question by saying we must believe all “survivors,” with the survivor defined as anyone who makes an accusation.

    6. Hey, non-progressives can play intersectional politics, too.

    7. But those, what is the phrase, “male athletes of color”, often turn out to be filthy rich elite males making way more money than a woman, so should be hated before the fact.

    8. Why are you people so triggered whenever race is mentioned? Are you under the impression that people aren’t treated differently based on race? What year did this change?

      1. It’s only progs that are concerned about the race of the accused.

  5. Watch @BetoORourke change a tire

    Up your game, Rico.

    1. Fredos video is better.

    2. I want to see Trump change a tire. I want to see Trump complete a game of tic tac toe.

  6. Delay the inevitable “Love Contracts” that Lefties will make a reality.

    1. Anything to expand the bureaucracy, right? I assume a contract would only have to be notarized. Eventually they will push for “Love licenses” which will need to be obtained from the Department of Intimacy and Carnal Knowledge during normal business hours.

      1. And before you know it, getting one will become a Recreational Impossibility.

  7. Government Almighty (politicians and their lackeys of both major parties) fuck me and fuck me over EVERY DAMNED DAY, and I NEVER consented, affirmatively or otherwise!!! WHERE is justice for MEEEE, I ask?

  8. 165 voted for it?

    It’s worth noting the Canadian Bar Association advocated for Bill C-16. The onerous, ideological law that propelled Peterson into stardom.

    1. Would be interesting to see the yeas and nays by sex.

  9. Now do affirmative action.

    1. As in, each person must allow more sexual access to people of color?

    2. Yes I had hoped that would be done with by now.

      Always focus on the individual.

      Race is a myth.

      1. >>Race is a myth.

        word. waits for lc1789 to post Webster definition of race…

  10. So just over 39% of the ABA House of Delegates are woke, and seem to think that Title IX “Dear Colleague” standards should be the law of the land.

  11. I’ve never had one blowjob that would have been made better if I were asked to give consent first. The spontaneity is like half the fun.

    1. Living dangerously Tony; good thing you’re not a college student…then you’d be held to the most progressive of standards.

      1. College was the best time not to know what was coming.

        Thoughts and prayers.

    2. Try it with women Tony.

      I am heterosexual long term married.

      Always thought you gay guys had it easy. Women are…complicated.

      1. just as easy to get blowjobs from though…

        1. Walked into a gay bar once. It was 15 guys for every guy.

          Ok stole that one from Rodney Dangerfield.

          Really I could care less what someone is or sex gender preference race religion nationality culture lefty righty – means nothing to me.

          Now we can talk about a proper grilled cheese sandwich. Food is important.

          1. To myself since nobody bothers with music links.

            Watch this kiddo girl from Japan totally nail the drum cover for Stone Cold Crazy by Queen.

            One of the more difficult pieces. It was a speed metal track before it was invented. Taylor did some of his best studio work in the original recording, double strokes snare and kick tight to Brian May on the heavy distorted guitar.


  12. Also, when someone says “screw me,” you have to specifically ask whether they mean screwing you sexually or financially.

  13. I sure am glad the American Bar Association outlined what is consent is when it comes to sexual activity.
    Now all rapes and sexual assaults will become a thing of the past.

    1. prosecutors hardest hit.

  14. Yea, they failed this time. But look how many voted for it. Look at the ALI where it originated.

    Keep in mind that the next generation of lawyers will be mostly women and mostly indoctrinated in Feminism.

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