CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, April 27, 2016

Understanding the “Burden of Proof” Objection to the ALI’s Sexual Assault Proposal

Criticisms of the ALI’s draft sexual assault provisions, including a statement from the National Association of Criminal Defense Lawyers, have argued that the draft “encourages a shifting of the burden of proof to the accused.” In their barest form, these criticisms are susceptible to at least three readings. Two of them are not compelling, but the third is. In this post, I try to sketch these varying views. I have criticized the draft previously, here, here, and here. I draw from some of those criticisms in this post, but I do not seek here to repeat my prior criticisms in full.

              One reading is that the ALI draft fails to honor the constitutional requirement of proof beyond a reasonable doubt on every element of a criminal offense. That criticism would be inapt, partly because the constitutional requirement does less than conventional wisdom might suggest in assuring the fairness of the criminal process.

For conviction, the draft requires proof that penetration occurred in the absence of a person’s “behavior . . . that communicates the person’s willingness to engage in a specific act of sexual penetration or sexual contact.” Presumably, a prosecutor would seek to establish that the complainant did not engage in such behavior by offering the complainant’s account of the event, perhaps supplemented by whatever statement the accused might have made to authorities. If that evidence suggests strongly that the partner’s behavior did not communicate willingness—and even if it suggests that conclusion only mildly—the defendant will of course feel pressure to testify to provide another perspective. But this pressure does not shift the burden of persuasion in an unconstitutional manner. The pressure on defendant to present a defense will arise in any criminal prosecution in which the prosecutor can present a case that can’t be sufficiently shaken through cross examination.

              A second reading might go something like this: While the pressures on the defense to mount a case arise in many criminal prosecutions, most criminal prohibitions require the state to prove acts that themselves strongly suggest that defendant acted culpably. A person might cause death nonculpably, but the causing of death is often culpable, and the circumstances will often tend to show that culpability. In those cases, we do not object when the defendant feels pressure to mount a defense. But in cases that might arise under the draft, the circumstances often will not clearly bespeak a defendant’s evil intent. And in such cases, we feel that it is unfair to subject the defendant to the judgment of 12 people insufficiently clever to escape jury duty.

              Some theorists have advocated limiting criminal liability to cases of “manifest criminality.” I have criticized those theories elsewhere. While they have their appeal, the theories were flatly rejected in the Model Penal Code’s treatment of assorted crimes, including larceny and attempt. The Code extended liability to those who can be proved beyond a reasonable doubt to have consciously run the risk of social harm, preferring a “subjective” to an “objective” approach to liability. Requiring manifest criminality in sexual assault could be thought to favor a return to a requirement that a victim have resisted an attack physically, an approach that often underprotects sexual autonomy.

              Which brings us to the third, and in my view compelling, way of understanding the “burden of proof” objection. It recognizes the permissibility of punishing based on the jury’s conclusion beyond a reasonable doubt that the defendant acted culpably. But it does not merely rely on burden of proof to guard against unfair convictions. It also relies on the substantive criminal law’s requirement of (1) a culpable mental state regarding (2) violation of a norm that we can expect the defendant to have known. 

              If the substantive criminal law either fails to require the requisite mental state or only applies it to norms the defendant did not know, the law will require proof beyond a reasonable doubt, but the burden borne by the state is not what we normally expect. For example, suppose a state decided that many cases of unwanted sex occur because the participants are young and intoxicated. So the state outlaws penetration with a partner under the age of 25 who has consumed an intoxicant within the previous eight hours. The state might prove beyond a reasonable doubt that defendant’s 24-year-old partner had had a beer six hours prior to sex, but the burden the state bore would not establish defendant’s culpability if defendant did not know about the law. And even if the defendant did know about the law, the state’s burden would not show defendant’s culpability in cases in which defendant was innocently ignorant about the partner’s age or prior drinking—the mens rea question.

              In a way, the draft is worse than the overly broad statute hypothesized above. Although most would think the no-intoxicant-at-all crime would be too imprecisely tailored to the harm sought to be avoided (sex with an unwilling partner), at least a person told about the law would know what was expected. On the other hand, throughout the drafting process, from the versions embracing “affirmative consent” to the current rebranded version, the draft has embraced an objective consent standard. That standard does not turn on whether the defendant thought that the partner’s behavior demonstrated willingness; it depends on what a court or jury deems to be behavior communicating willingness after hearing evidence about the totality of the circumstances in the case. This objective question is likely to be viewed as a question of law that the draft’s mental state language does not reach. For example, the jury might well be instructed, “You should examine what happened in this case from the perspective of what the defendant believed, so long as the defendant’s beliefs were not reckless. But it is up to you as the jury to determine whether the facts that defendant believed about all the circumstances are sufficient to count as behavior communicating willingness. Even if the defendant believed that defendant’s partner was willing, the question for you is whether the circumstances, from your perspective, sufficiently communicate willingness.”

              An earlier draft included commentary that suggested a contrary conclusion. That commentary was removed when the draft was modified to eliminate the requirement of affirmative consent for sex acts short of penetration. Given the statutory text, the commentary would likely have been ignored anyway.

              Without additional guidance, judges and juries are likely to view “behavior communicating willingness” as “behavior that would lead a reasonable person to think the partner was willing.” But that standard is lower than what the Model Penal Code generally requires. Normally, the Code requires that an actor be at least reckless—a conscious risk taker—about whether the actor will bring about a social harm. Even for homicide, the Code required gross negligence.

              Accordingly, under the draft, the state bears its burden of production by putting on enough evidence to allow the factfinder to determine that a reasonable person would not have thought that the defendant’s partner had engaged in behavior demonstrating willingness. That kind of showing should suffice in tort law. But it would not satisfy the burden of proof the Code normally placed on the state when it seeks to condemn and imprison. Once the burden is met, the defendant must put on a defense or risk a judgment of conviction. And given the ultimate standard, the defendant will likely need to show more to escape punishment than the Code normally requires.


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With due respect to Professor Cole, he wrongly assumes that the ALI draft adopted a de facto negligence standard and shifted the burden of proof to the defendant. As a result he makes three errors in his analysis:

(1) Professor Cole suggests that the standard imposes unrealistic expectations on individuals in terms of what they are supposed to know about sexual norms and behaviors. Yet the standard is “don’t have sex with a person if you are aware of a substantial risk they don’t want sex.” That reference point hardly promotes outlandish expectations on individuals; rather it readily complies with current sexual norms.

(2) Professor Cole also incorrectly states the following: "Accordingly, under the draft, the state bears its burden of production by putting on enough evidence to allow the factfinder to determine that a reasonable person would not have thought that the defendant’s partner had engaged in behavior demonstrating willingness.” That statement is simply not true; the state must prove the actus reus element AND the mens rea element. The actus reus element requires evidence that the complainant did not engage in behavior demonstrating willingness, and the mens rea element requires the state to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that there was this lack of willingness. Professor Cole conflates the actus reus element and the mens rea element, or perhaps thinks only of the actus reus element without the required mens rea element.

3) Professor Cole does not acknowledge that that Comment section states explicitly and unambiguously that that prosecution has to prove beyond a reasonable doubt that the defendant was consciously aware of a substantial risk that the complainant was not consenting.

Posted by: Deborah Denno | May 6, 2016 11:52:22 AM

My argument is that the mens rea language in the draft is most likely to be interpreted only to reach the historical facts that go into an assessment of "consent," not the interpretative/normative question of whether those facts suffice to constitute "behavior communicating willingness" (which is different from "willingness" simpliciter). The interpretative/normative question is likely to be viewed as a legal question to which the mens rea requirement does not apply. The commentary consistently elides this question by referring to mens rea regarding "consent," not regarding "willingness."

Posted by: Kevin Cole | May 6, 2016 5:25:30 PM

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