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American Bar Association Will Not Endorse “Affirmative Consent” Definition

By August 15, 2019 No Comments

The American Bar Association recently decided not to recommend a change to how consent is defined in cases of alleged sexual assault, reports Inside Higher Ed. For a while it seemed that the ABA would “urge state governments and court systems” to use the “affirmative consent” definition that is becoming more common in American universities. The idea of affirmative consent is to “receive a clearly articulated ‘yes’ response, in words or actions, before proceeding with sexual activity.” But opponents of this definition, many of them criminal defense attorneys, argue that it “no longer presume[s] innocence for the accused and instead shift[s] the burden of proof that a sexual encounter was consensual to the accused person in criminal sexual assault cases.” Thus such a change “would be unconstitutional and violate the due process clauses of the Fifth and Fourteenth Amendments.”