- The Washington Times - Tuesday, May 17, 2016

The American Law Institute will vote at its annual convention this week whether to adopt a model penal code broadening the definition of sexual assault.

The influential legal group will consider whether to define sexual assault under an “affirmative consent” standard — otherwise known as a “yes means yes” standard — in which both parties must continually verbalize their willingness to participate in sexual activity.

Some members of the ALI are wary of such an interpretation of sexual assault, which has thus far been relegated to a few states and dozens of college campuses. A group of 120 members wrote a letter denouncing the proposal, pointing out that it would improperly shift the burden of proof onto the accused.

“The prosecutor need only say, ‘Ladies and Gentlemen of the Jury, under the State’s definition, it does not matter whether the complainant actually was willing,’ ” the letter says. “‘It is undisputed that the sex act occurred and there is no evidence in the record that the complainant communicated willingness. There is no consent if the complainant has not communicated. You must convict if you find the defendant recklessly disregarded that absence of consent.’”

Critics also point out that, even if parties to sexual activity have not communicated their willingness to participate, that does not guarantee a sexual assault has taken place.

The ALI is one of the most influential legal groups in the nation, boasting as members every U.S. Supreme Court justice, every chief judge on the U.S. Court of Appeals, and chief justices on state supreme courts, among others. The group issues “Restatements” on many legal topics in order to clarify the law, which are routinely cited by courts.

But as John Fund points out at National Review, an activist rather than interpretive approach to the law has been in vogue at ALI.

In 2015, the group updated its manual describing the Restatements as a reflection of “the law as it presently stands or might appropriately be stated by the court.”

Originalist jurists have worried about the direction the group has taken in recent years. In his Kansas v. Nebraska opinion last year, the late Supreme Court Justice Antonin Scalia warned that the ALI’s “modern Restatements” are “of questionable value, and must be used with caution.”

He said “the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law might be.”

According to the website affirmativeconsent.com, only 40 colleges and two states, Illinois and New York, have enacted affirmative consent policies, while California requires high schools and colleges to enforce the standard in order to receive state education funds.


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