Tuesday, October 13, 2015
ALI members express concerns about "affirmative consent" sexual assault draft
Since posting my critique of the ALI’s draft provisions on sexual assault here, I’ve received a copy of the reporters’ latest draft, Preliminary Draft No. 5, which was discussed at a meeting of advisers and consultants last week. The new draft is in several respects better than what came before. Most notably, the drafters discard their “affirmative consent” model for sex offense other than those involving penetration. What remains is still troubling, and only in part because the penetration offenses are defined broadly. It is a weak argument in favor of a proposal to note than one can imagine worse proposals. But more on that later.
In addition, I’ve received from several sources a petition being circulated among ALI members raising concerns about the sexual assault project. The ALI Council, which decides what gets to a vote before the full institute, is scheduled to meet this Thursday and Friday, and the sexual assault project is on the agenda. The latest version of the petition I’ve seen has over 70 signatures from ALI members. A copy is attached. Download Ali petition oct 2015
Some of the concerns are along procedural lines, focusing on the extent to which an ALI model code should avoid “novel social legislation,” the time that has been available to consider the latest draft, and the like. Others raise more substantive objections to an “affirmative consent” model.
Centrally, the petition advises against endorsement of the affirmative consent model at this point. It states, “It has been suggested that certain topics are ripe for final discussion. Nothing could be further from the truth . . . .”