ABA Overwhelmingly Rejects “Yes Means Yes” Standard For Sexual Assault Cases; It Violates Due Process (Say Courts), and It’s Also Illogical (Say Experts)
WASHINGTON, D.C. (August 14, 2019) – The American Bar Association [ABA] has overwhelmingly rejected proposals to adopt a “yes means yes” consent standard – under which each party must provide a clearly articulated affirmative agreement to each and every step in a sexual encounter to avoid liability – for sexual assault cases.
This expert body took the action because a majority concluded - as have many courts - that it violates the constitutional protection afforded by the Due Process guarantee.
And public interest law professor John Banzhaf, who teaches the law in this area and has been involved with actual cases, says it is also illogical, and that the debate ignores much more important issues.
He says there are many additional reasons for not adopting a "yes means yes" standard of consent in criminal sexual assault cases, as well as on college campuses.
To begin, he says, it does not recognize or permit the well established concept of consent initially implied from prior interactions and activities.
So, for example, if F is in the habit of patting the rear end of her boyfriend M whenever she comes up behind him on campus, and he has always enjoyed and even encouraged it, there would not be consent under the affirmative standard in any new encounter, and she could be found guilty if he ever said he had changed his mind for any reason, and brought charges.
This makes little sense, and there should probably be no liability unless and until M first tells F that he no longer wishes to be touched in that fashion, suggests Banzhaf.
The "yes means yes" standard also does not recognize or permit the well established concept of consent implied, in certain cases, by silence and inaction.
So if F walks in on her boyfriend M and finds him naked lying in his dorm room reading a book and, without a word, slowly walks over to him and begins performing fellatio, she could be found guilty if he ever claimed he didn't want it and brought charges.
Under affirmative consent, the same result would occur if she happily announced that she was going to perform this same act, and he said and did nothing - since silence and inaction, even under these circumstances, do not satisfy the affirmative consent standard.
Many male students have been found guilty/responsible of sexual assault cases under the affirmative consent standard when both parties were too drunk to remember what happened just before and during their sexual encounter.
Even though both took an active role in different aspects of the multi-faceted encounter, he was punished because he could not prove that she had affirmatively consented.
However she was not even charged even though she could not prove - because she was too drunk to remember - if he had affirmatively consented.
As even the New York Times has noted, the standard is too confusing, and many college students - and even faculty and administrators - don't understand how to apply it in many real-life situations, such as those noted above.
Some have candidly admitted that the purpose of the standard is just to get students talking about the issue, and not that is a practical and fair standard to use in actual situations - and some of the above are based upon actual situations in which Prof. Banzhaf as an attorney and expert has been involved.
Moreover, the debate over the appropriate standard for consent ignores the most important issue: in most states, rape requires more than just proof that the party did not consent.
In other words, if M and F has sexual intercourse, even though she clearly said "no" and "I don't consent," the act would not constitute rape unless it can also be shown that M used force or the threat of force to obtain his way.
The one major exception is that if F was incapacitated and virtually unresponsive, not just drunk, inebriated, etc. In such situations, there could be no consent, regardless of how "consent" is defined.
Finally, it appears that there is no proof that any of this tinkering with the standard of consent has prevented even one rape on a college campus, claims Banzhaf.
However, there is a program which has been proven to slash college rapes by almost 50%, but apparently non-legally trained faculty and administrators on campus are too busy debating sexual assault cases and consent than to bother even trying it, argues Banzhaf.