American Bar Association Votes Against Resolution to Recommend Making Affirmative Consent an Element of Sex Crimes

Sex crimes are often hard to prove, as they largely rely on circumstantial evidence regarding whether the defendant had consent. Many statutes defining sex crimes include lack of consent as an element of the crime the State must prove to obtain a conviction, but do not require the defendant to set forth any proof. Recently, the American Bar Association weighed in on the issue of whether the criminal statutes should be overhauled to impose a burden on the defendant to prove affirmative consent. If you are a resident of Texas charged with a sex crime it is crucial to retain an assertive Texas sex crime defense attorney to help you protect your rights.

The Proposed Resolution

The American Bar Association (ABA), is not a governing body but is a voluntary association that sets academic standards for law schools and adopts policies on legislative issues. Recently, the ABA was presented with a controversial issue via Resolution 114, which originally recommended that criminal codes be modified to include “affirmative consent” as an element of sexual offenses. In other words, the burden of proof would essentially shift from the State, who is required to prove each element of a crime beyond a reasonable doubt, to the defendant, who presently does not have a burden of proof in criminal trials. Requiring proof of affirmative consent means that the defendant must prove that he or she obtained consent from his or her partner before and during any sexual activity. Additionally, any change or advances in the activity may require renewed consent.

Prior to the vote, the language of the resolution was modified in part, to change the word assent, which was deemed unclear, to consent, and to include a phrase indicating that the defendant was still presumed innocent and the burden of proof remained with the State. While the modifications would mirror the consent standard of many colleges the standard would be impossible to meet on a practical level, and would likely lead to increased plea bargains.

A debate was held before the vote as well, during which parties in support of the resolution allegedly misrepresented the intent and impact of the resolution. Specifically, they stated that the American Law Institute, which voted against an affirmative consent resolution three years ago, was undecided on the issue. Additionally, the parties in favor of requiring affirmative consent argued that the resolution was harmless, because it merely stated that lack of action on the part of the victim did not mean he or she consented to the sexual activity.

In turn, opponents to the resolution argued that requiring affirmative consent would likely result in many convictions being vacated on constitutional grounds. Additionally, those in opposition to the resolution noted that the resolution would make the process worse for victims of sex crimes, especially if cases needed to be re-tried due to a violation of the defendant’s Constitutional rights.   Ultimately, the ABA echoed the findings of the ALI, and voted to indefinitely shelve the resolution, despite the modifications.

Meet with a Skilled Criminal Defense Attorney Regarding Your Charges

A conviction for a sex crime may permanently impair your rights and reputation. If you live in Texas and are charged with a sex crime it is essential to meet with a skilled Texas criminal defense attorney to discuss your case and what the State must prove to obtain a conviction. Rick Davis is a trusted criminal defense attorney who will zealously advocate on your behalf. You can reach Mr. Davis at (979) 779-4357 or via the online form to schedule a confidential and free meeting.


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