Trench Warfare from the ALI to the ABA on the Construction of Principles of Sexual Consent: From the ALI Model Penal Code to ABA Resolution 114

I have been chronicling the now years long battle within the American legal elite for control of the narrative and ideology of sexual relations and its incorporation into the criminal law of the United States. The question centers, as it has for centuries, on the use of the criminal law to embed social conventions into the sexual relations of people. As is customary in such battles in the United States, those who have sought to impose their orthodoxy on the rest of us have veered from one extreme to another.

For centuries, the ideology of sex privileged (in the old fashioned and no discredited binary of active and passive participants) that consent was presumed unless there were relatively extreme signs of lack of consent. That narrative presumed under many circumstances that consent could neither be required (marriage) nor that it could be withdrawn. Now among the many who had found the old narrative out of touch with current customs and mores, some have sought to reverse the narrative. They would start form the presumption that any intimate contact among humans is undertaken without consent, and that such consent must be affirmatively evidenced at every stage in the encounter of individuals which, in the eyes of the state could be sexualized (which at the start of this century is now more broadly scoped). In both cases, the criminal law was the means through which the state could exercise its power to mediate encounters of a sexual nature and adjudge some permitted and some not. At the center of this transformation is the development and deployment ofd the concept of "affirmative consent."

That battle had been waged for the most part in the halls of academia and from there in great debates within the American Law Institute, which I have noted over the course of the last several years (here, here, here, here, here, here, and here). That debate has also spilled into the battles about legitimacy of non-judicial grievance mechanisms encouraged by administrators during the time of the Presidency of Barack Obama and administered by U.S. universities under threat of loss of federal support (“Fairness for All Students Under Title IX,”; The Revolt of the Feminist Law Profs). The battle might be usefully understood as pitting those who favor affirmative consent and its guiding presumptions about power relations and baseline foundations for sexual encounters against those who view the new narrative as either out of touch with social or cultural realities, or neglectful in substantial ways of the principles of due process and its legitimacy enhancing function.

Now the proponents of affirmative consent have moved the battle to the American Bar Association, which this week will consider a resolution urging states to embed the concepts f affirmative consent into their criminal law of the regulation of conduct defined (broadly or narrowly) as sexual or otherwise with respect to which such a principle might be useful. That has generated a quite interesting additional battle over the trajectory of the ALI's consideration of the issue.

"A more elite legal group, the American Law Institute, had already considered this issue. The ALI’s members voted overwhelmingly to reject affirmative-consent language proposed by activists who have for years sought to revise the group’s Model Penal Code. Rather than acknowledge this dramatic vote, the ABA report suggests that the ALI’s decision “is not yet final.” That characterization is misleading at best: A letter signed by more than 100 ALI members to the ABA’s president insists that moving forward on such an “obviously deficient” record would question “the essential integrity of the ABA.”" (Will the ABA Reject Due Process?).

And it has generated some opposition especially from the criminal defense bar (e.g., here). On the eve of consideration of this proposal, the ABA Criminal Justice Section appeared to have voted to withdraw its support for Resolution 114 and has sought to table the Resolution. The ABA Commission on Domestic and Sexual Violence remains committed. Resolution 114 and the Report to the ABA House of Delegates may be accessed HERE. Eventually, ABA Resolution 114 was tabled indefinitely by a strong vote of 256-165.

This post includes a letter, written by a group of ALI members to the ABA respecting both the substance of the ABA's proposed Resolution 114 and the contentiousness of the issue within the ALI. Also included is a copy of the email sent by the Chair of the ABA Commission on Domestic and Sexual Violence. A link to the video of part of the Debate may be accessed here.

It will be interesting to see where all of this leads--more, perhaps, for the sociology of law, than for the merits of evolving cultural and societal expectations that are expected to be enforced through the use of the criminal law of states. Sex and sexual encounters will continue to occupy an important place in the business of government.  In that occupation lies one of the most interesting conversations between the state, society, and those who seek to manage both.

August 8, 2019

By Regular Mail and Email

Robert M. Carlson, Esquire

President

American Bar Association
321 North Clark Street
Chicago, IL 60654

                          RE:    ABA Proposed Resolution 114

Dear President Carlson:

The undersigned members of the American Law Institute (ALI) have recently learned of proposed Resolution 114.  We write both because the content of Resolution 114 is directly contrary to the position taken by ALI and because the “Report” submitted by the supporters of Resolution 114 inaccurately describes the actions and positions taken by ALI.

Resolution 114 seeks to adopt what is generally known as “affirmative consent” with respect to sexual behavior (the phrasing used in Resolution 114 is, “define consent in sexual assault cases as the assent…. expressed by words or action”).  The “Report” makes clear that an “affirmative consent” standard is sought.  The “Report” essentially has two components: 1) Claims about the position of ALI and 2) claims about “neurobiology.”  This letter primarily addresses the inaccurate information in the “Report” regarding ALI, but ends with a brief discussion of the asserted “neurobiology” since the same claims were made during the ALI discussions.

The “Report” correctly identifies Professor Stephen Schulhofer as the Reporter of the ALI Model Penal Code Sexual Assault and Related Offenses revision project.

When Professor Schulhofer began presenting drafts to the ALI Members Consultative Group and to the full ALI membership, the drafts contained commentary and “black letter” endorsing “affirmative consent.”  The reaction to this approach was strongly negative as Professor Schulhofer confirmed in Tentative Draft No. 2 (April 2016):

“The treatment of consent and associated offenses in Preliminary Draft No. 5 provoked great controversy at the last Annual Meeting and at the 2015 October meetings of the Advisors/MCG and also the Council.  Many argued that the proposed definition of consent adopted an ideal of “affirmative consent” at the expense of the largely tacit ways that people engage in sexual behavior in the real world.  There was concern expressed that the definition covered behavior that was innocent, and that the criminal law should not dictate sexual mores in this evolving era.”  (Tentative Draft No. 2 atxv)

At the ALI Annual Meeting in May 2016, a formal vote was taken.  The “affirmative consent” approach was rejected and the following definition of consent was adopted as the Membership Approved definition of consent:

SECTION 213.0. DEFINITIONS AND GENERAL PRINCIPLES OF LIABILITY…

(6) Definitions….

(d) “Consent”

(i)                 “Consent” for purposes of Article 213 means a person’s willingness to engage in a specific act of sexual penetration, oral sex, or sexual contact.

(ii)              Consent may be express or it may be inferred from behavior—both action and inaction—in the context of all the circumstances.

(iii)            Neither verbal nor physical resistance is required to establish that consent is lacking, but their absence may be considered, in the context of all the circumstances, in determining whether there was consent.

(iv)             Notwithstanding subsection (6)(d)(ii) of this Section, consent is ineffective when given by a person incompetent to consent or under circumstances precluding the free exercise of consent, as provided in Sections 213.1, 213.2, 213.3, 213.4, 213.5, 213.7, 213.8 [reserved], and 213.9.

(v)               Consent may be revoked or withdrawn any time before or during the act of sexual penetration, oral sex, or sexual contact. A clear verbal refusal—such as “No,” “Stop,” or “Don’t”—establishes the lack of consent or the revocation or withdrawal of previous consent. Lack of consent or revocation or withdrawal of consent may be overridden by subsequent consent given prior to the act of sexual penetration, oral sex, or sexual contact.

For reasons that have not been explained to us, the ABA “Report” in support of Resolution 114 reveals no part of this history.  Instead, the “Report” cites no ALI materials after 2014 and, as a result, is highly misleading. 

This is very troubling.  The ABA should not consider moving forward with an important matter where the “Report” purporting to justify the action is so obviously deficient.  This is a matter of the essential integrity of the ABA.  A vote based upon the current “Report” is not defensible because the “Report” absolutely excludes all relevant information about ALI’s actual position while repeatedly claiming support from ALI. 

ALI has carefully considered exactly this issue and we have attached to this letter various ALI record documents memorializing the deficiencies with “affirmative consent” that led to its rejection by ALI.  These attachments also address the “neurobiology” issue of “frozen fright.”  This also was rejected by ALI which explicitly adopted the position that, “Consent may be express or it may be inferred from behavior—both action and inaction—in the context of all the circumstances.”  Much more could be said about the deficiencies of the “Report” with respect to neurobiology, including the fact that the principal proponent of the “frozen fright” theory is Rebecca Campbell who is not a neurobiologist. See, e.g., Emily Yoffe, The Bad Science Behind the Campus Response to Sexual Assault, The Atlantic, September 8, 2017  (“In her 2012 talk, Campbell acknowledged that she is not a neuroscientist, but rather is translating others’ work.”)  https://www.theatlantic.com/education/archive/2017/09/the-bad-science-behind-campus-response-to-sexual-assault/539211/  The Yoffe article contains highly detailed examination and refutation of the “frozen fright” claims that must be examined and assessed by the ABA before permitting the “Report” to be a basis for ABA action. 

In short, the “Report” is based on bad history and bad science.  We respectfully submit that Resolution 114 is not appropriate for consideration by the ABA at this time. It should be withdrawn and, if its proponents desire further consideration, it merits a fair and balanced report that will allow informed consideration before any vote is taken.

Respectfully submitted,

SIGNATURES.

_________

From: House of Delegates Discussion List <HOD@MAIL.AMERICANBAR.ORG> on behalf of Mark Schickman <schickman@FREELANDLAW.COM>
Reply-To: Mark Schickman <schickman@FREELANDLAW.COM>
Date: Thursday, August 8, 2019 at 6:42 PM
To: “HOD@MAIL.AMERICANBAR.ORG” <HOD@MAIL.AMERICANBAR.ORG>
Subject: Resolution 114 and the Campaign Against It

Dear Fellow Delegates:

At the Las Vegas meeting in February, the Commission on Domestic and Sexual Violence presented to you Resolution 115, providing  that (1) consent to sexual activity must be expressed by words or conduct.  and (2)  “active resistance” should not be a condition for legal protection.  As you will recall, we passed the second part and agreed to pull back the “consent” definition for six months — — until this meeting — — at the request of the Criminal Justice Section so that we could coordinate with them on a joint product.

​We and CJS spent two months doing so, drafting, editing  and Cosponsoring current Resolution 114, along with the Section of Civil Rights and Social Justice.  It stands for the proposition that “consent to sexual activity is expressed by words or conduct, in the context of all of the circumstances”.  It does not change the burden of proof or the presumption of innocence.  We believe that this straightforward principle is supported a wide majority of the house. The claim that it has been brought by surprise or without adequate time for review is  untrue, as this House knows;  the opponents will fight against it whenever it is presented — — now, a year from now, 100 years from now.

              The Principle Behind The Opposition

In the past weeks, several interest organizations including the National Association of Criminal Defense Lawyers (NACDL)  launched a letter and internet  campaign against this Resolution. The heart of the dispute is their objection to the core principle of this resolution, that assent to sexual activity is expressed by words or conduct in the context of all of the circumstances.They have mobilized their members and solicited mail and social media posts  to lobby House members to vote against Resolution 114.  We recognize  the centuries old assumptions upon which this opposition is based — that in our society, and in societies throughout history, sex is considered there for the taking. This resolution seeks to change those assumptions, to suggest that sex is not a matter of force or acquiescence but, rather, the right word is assent.  That is the modern trend of the law, and this resolution asks the ABA to support it. The opponents’  stated goal is to eliminate “ the divisive concept “ consent from the resolution; this point of principle cannot be avoided and will be presented to the House.

We disagreed with their view that “the law is not a vehicle to change social mores”; we think it is.  We also take issue with their regressive proposition that “the concept of affirmative consent contradicts common understanding” in the “volatile area of human sexual relations.”   Again, their campaign has history on its side, a long understanding that women were spoils of war, that rape of a woman a property offense against her husband if she were married and her father if she were not, and which  in some jurisdictions still protects forced sex in the absence of earnest resistance.  We DO want to contradict such anachronistic “common understandings”, and DO believe that the law is an appropriate vehicle to do so.  That is the true point of dispute

            The Empirical and Scientific Proofs of Multiple Fear Reactions

The letters and tweets challenge the biological reality of a victim being immobilized by fear or danger  as “red herring science” — a dismissive argument which may well convince a jury, but is plainly untrue.  There are several proven neurological and physiological bases for that fact. I have experienced moments being incapacitated by fear — haven’t you? It’s hard to pick one source to present, but see the training at https://www.youtube.com/watch?v=dwTQ_U3p5Wc&t=334s and scientific literature at https://www.sciencedirect.com/science/article/pii/S1053811917305268 or  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2489204/. For broad layman’s explanations, see https://www.psychologytoday.com/us/blog/sexual-assault-and-the-brain/201804/freezing-during-sexual-assault-and-harassment or http://www.washingtonpost.com/news/grade-point/wp/2015/06/23/why-many-rape-victims-dont-fight-or-yell/.  A specific rebuttal to the Emily Yoffe article  raised in the opponents’ recent posts and letters, published in Psychology Today, is attached.

People react differently to major stress.  Stress rapidly impairs the brain’s rational prefrontal cortex, shifting the brain to reflex and habit responses that are automatic and involuntary, and often immobile or passive, precluding resistance. Again, scientific support for this includes the work of Amy Arnsten, an influential Yale neuroscientist (Arnsten, A.F.T. (2009). Stress signaling pathways that impair prefrontal cortex structure and function. Nature Reviews Neuroscience, 10, 410-422.; Arnsten, A. F. (2015). Stress weakens prefrontal networks. Nature Neuroscience, 18, 1376-1385.; Arnsten, A. F., Lee, D., & Pittenger, C. (2017). Risky business: The circuits that impact stress-induced decision-making. Cell, 171, 992-993).  A review of the extensive behavioral and neuroscientific research on animals’ and humans’ reflexive immobility responses to inescapable danger (e.g., freezing, tonic immobility, and collapsed immobility) is published in   Kozlowska, K., et al. (2015). Fear and the defense cascade: Clinical implications and management. Harvard Review of Psychiatry, 23, 263-287).  One cannot  deny the often immobilizing effect of fear or danger.

            The Non Issues Raised in Opposition

The opposing groups covers their  opposition with  stated concerns which are no part of this resolution.  They say this resolution shifts the burden of proof, or eliminates the presumption of innocence; it does neither.  To be clear: using the definition in the resolution, the prosecution has to prove beyond a reasonable doubt that consent was absent. It remains the prosecutor’s burden to present such evidence, and to convince the jury beyond a reasonable doubt to believe it. Otherwise, the defendant gets acquitted; the defendant never needs to prove anything. Every procedural protection and presumption of the system remains. Beyond question, we agree it would be unconstitutional to do otherwise.

We have told this to the NACDL when it launched the instant opposition, and offered to state that proposition in the text  if that would eliminate its objection to the resolution.  The NACDL refused, as that obviously true proposition is not their actual concern. As they wrote, their problem is our use of the word “assent” and “the divisive concept” of requiring words or actions indicating consent.   The burden of proof and presumption of innocence remain in full force!

The opponents then suggests in passing, that this resolution presents a racial justice issue.  Of course, serious equal justice considerations pervade the criminal justice system as a whole, require remedy and should always be addressed. Here, white men most often commit rape, rape is the 5th most common crime charged against white men, and the 18th among people of color.  Importantly, women of color are less likely to report and less likely be believed when they are victims of sexual assault.  A report published by Georgetown Law Center found that “adults view Black girls as less innocent and more adult-like than their white peers” and they are  “perceived to be more independent, more knowledgeable about sex, and in less need of protection”. Reinforcing a rule requiring consent to sexual activity is a justice issue as much to people of color as it is to any segment of our society.

Finally, we proponents made the deliberate decision to make this resolution about its merits and not the ALI process; the issue here is principle, not the ALI.. But the opponents now argue that we focused insufficiently on the ALI and that the ALI’s product differs from ours, and that statement is half true.  The ALI engaged in the full, lengthy, detailed expert committee process for which it is known, taking comments and crafting a rule which embodied the need for words or acts of  consent.  When that product of the ALI process was submitted to the ALI membership for approval, it was subjected to the same lobbying as the HOD receives now; and  the membership did not adopt the committee report in its current draft.  As our report notes, the ALI’s revision of The Model Penal Code on Sexual Assault and Related Offenses is not complete, and we hope it ultimately adopts a rule requiring consent to sex. But this resolution is not about the ALI, but a much more important principle.

A small but organized opposition has taken to the Twittersphere and asked its members around the country to lobby the members of this House, and we have no doubt that this will continue for the next week. Typical of twitter campaigns, it uses buzzwords instead of reason, and polarization rather than analysis. We understand.  Entitlements are hard to lose, and this resolution seeks to limit one of the most longstanding entitlements in human history.  But it is neither radical nor  “divisive” to suggest that there should be assent to sexual activity, rather than simply a failure or inability to adequately resist.  It is the right proposition, and we look forward to presenting it to, and obtaining the approval of, the House, through our regular, reasoned process..

Best regards, and welcome to San Francisco.  Mark Schickman, Chair ABA Commission on Domestic and Sexual Violence.