American Bar Association Delays Attempt to Add College Consent Rules to US Court System

After a heated debate at the Annual American Bar Association’s meeting, the House of Delegates voted on Resolution 114, which aims to bring the college campus consent rules on sex that are active on US campuses nationwide to the US courts. The measure was voted down 256 – 165 after a see-saw of support that at first was strong in early 2019, but saw a withdrawal of support months later.

This controversial law that requires a partner receive expressed consent from their partner before engaging in a sexual act was enacted on college campuses in 2015. It is now common law at most campuses nationwide. Partners must always make sure they receive consent before engaging in sex with their partner, and they must get proof as well. Many have argued this law is unrealistic and goes too far, saying getting consent is sometimes impossible.

This law requiring consent has been controversial from since being adopted on campuses across the country. In early 2019, the American Bar Association began the process of bringing this law into US courts via another resolution, Resolution 115. This resolution opposed placing the legal burden of demonstrating resistance to the assault on the victim of the sexual assault and was swiftly voted in favor of earlier this year. At their annual meeting in August, however, things were not as smooth sailing for the follow-up to Resolution 115, Resolution 114.

Before the vote, there was an open discourse where delegates in the House of Delegates could debate on the resolution, and the delegates had vastly differing opinions. Past ABA President Laurel Bellows spoke in favor of Resolution 114, saying she saw no reason to postpone a conversation on the topic of consent.

A prosecutor debated against the resolution, saying that if affirmative consent was voted in favor of, it could result in past convictions being thrown out on constitutional grounds. Others argued it was wreak havoc on the legal system with the difficulties in proving consent. The resolution, however, was indefinitely delayed after the delegates voted, with the official tally not in favor of the resolution, 256 – 165.

Interestingly, the Criminal Justice Section of the American Bar Association, which had supported Resolution 114 earlier in the year, slowly withdrew its support of the resolution over the months as the annual meeting drew near. Neal Sonnett, a former chair of the Criminal Justice Section, told the House of Delegates that leadership realized it had not paid enough attention to the far-reaching implications of the resolution until later. He also said that the new resolution would completely change the law in respect to sexual behavior.. 

Stephen Saltzburg, who is a delegate for the Criminal Justice Section, took some of the blame for their committee agreeing to support Resolution 114 so quickly. He stated that it would take a lot of action to ensure that the resolution was done right, and that it would be in the people’s best interest to demand a completed and legally correct product, which could not be currently offered.

There was an additional criticism of Resolution 114 before the meeting – it would nearly eliminate a citizens’ constitutional right of presumption of innocence before being proven guilty, as well as forcing the defense to prove the charged person is the guilty party if Resolution 114 is passed.

The Criminal Justice Section also held a separate vote and voted before the meeting began, unanimously against Resolution 114. “A person’s Constitutional right above all needs to be protected,” says Attorney Neal Goldstein. “It is excellent that Resolution 114, although good-intentioned, is being re-examined by both sides. We need a law on consent that is fair for all before it is passed.”