A promising motion to fix the central problems with the ALI's sexual assault draft

With the ALI scheduled to begin discussion tomorrow on its sexual assault draft, seven ALI members--two advisors to the drafting process and five members of the Members Consultative Group--have prepared a motion that would remedy the draft's central problem. A copy can be downloaded here:  Download MPC213Alternate. In essence, the central element is replacing the draft's definition of "consent" as "behavior . . . that communicates . . . willingness." Instead, the motion would define "consent" as the partner's "willingness" to engage in the act in question. 

A list of some recent criticisms of the draft appears at the end of this post. The small change accomplished by the motion would address the draft's most significant problems.

The motion would result in a draft consistent with the Model Penal Code's general approach to criminal liability. An actor would be guilty only if consciously aware of a substantial risk that the partner was not willing to engage in the act in question. In other words, the motion would ask directly whether the actor behaved culpably with respect to a serious social harm of which even moderately socialized persons would be aware. It is fair to expect everyone to know that people should not engage in sex acts with those who are not willing.

Throughout the drafting process, a different approach has been taken. Originally, the drafts defined consent to require "positive agreement." Later drafts dropped the "positive," and the current draft recasts the standard as behavior communicating willingness. In all these cases, the drafts interposed an objective inquiry between the defendant's mental state and the partner's. Someone--a jury in applying the objective standard or a judge instructing on what counted as "positive agreement" or "behavior communicating willingness"--would decide which historical facts would satisfy the objective standard. As set forth more fully in an earlier post, the defendant's mental state would be relevant only in regard to the underlying historical facts, not on the "legal" consequence of those historical facts. 

While the motion removes this "objective" barrier to assessment of whether a defendant was truly culpable, it does not license an actor to ignore a partner's verbal and nonverbal cues. In the absence of behavior by the partner signalling willingness, an actor would have a tough time convincing a jury that the actor was not aware of a substantial risk of nonconsent. And the motion retains the "no-means-no" rule (while cleaning up some recently inserted problems), which will often be all that is needed to convict the actor indifferent to the partner's wishes.

A few additional thoughts. The draft suggests that an objective approach to consent is the prevailing approach in state criminal law. The motion offers some useful perspective on this matter. Here are some others.

First, the development of the notion of "consent" in state criminal law has been skewed by the sorry history of sexual assault law. In an era in which significant physical resistance or physical force was required, one would not worry about whether "consent" was defined in a way that put nonculpable defendants at risk--it was hard to be nonculpable in the face of the resistance or the force, regardless of how the "consent" standard was defined. Indeed, many jurisdictions made "consent" a strict liability element. Definitions that sprung from this soil deserve careful scrutiny.

Second, and regrettably, state criminal codes do not always show great solicitude for fairness to the accused. When rape reformers pushed to correct the injustices in past laws, politicians had little to gain by pointing out when the reforms went too far.

And finally, even if an objective approach to consent predominates in state criminal codes, the ALI faces a choice of baselines, for the ALI itself in the past has embraced subjective approaches to "consent" and its kin. The Restatements of Torts define "consent" in subjective terms. The Model Penal Code seems to have taken a subjective approach to "consent" in its general "consent" defense, though that defense has little to do with how the MPC defined sex crimes. In the sexual assault context, the Code clearly took a subjective approach to the "consent" problem, defining "sexual assault" in Section 213.4(1) to occur when an actor "knows that the contact is offensive to the other person." 

KC

Criticisms of the ALI drafts, from the Center for Prosecutor Integrity:

Legal Blogs and Editorials:

2016:

• Scott Greenfield: When Intent was Written out o the Model Penal Code – May 15
• Stuart Taylor: Legal Group Weighs  Radical Expansion of Sex Crimes – May 14
• Ashe Schow: A rift at the American Law Institute – May 12
• Kevin Cole: How “No-Means-No” Became “No-Means-Never” in the ALI’s Sexual Assault Draft – May 10
• Kevin Cole: Intoxication and the sources for defining “consent” under the ALI’s draft sexual assault provisions – May 9
• Kevin Cole: Mens Rea and the ALI’s Sexual Assault Draft – May 8
• Kevin Cole: Amending the ALI Sexual Assault Draft: Penalties – May 2
• Mark Meckler: Fifty Shades of Red Tape: When Bureaucrats Regulate Your Sex Life – May 1
• Kevin Cole: Understanding the “Burden of Proof” Objection to the ALI’s Sexual Assault Proposal – April 27
• Ashe Schow: Prepare to have your sex life regulated by government – April 21

Legal Reviews:

• Kevin Cole: Like Snow to the Eskimos and Trump to the Republican Party: The ALI’s Many Words for, and Shifting Pronouncements About, ‘Affirmative Consent’
• National Association of Criminal Defense Lawyers: NACDL Comments on Model Penal Code: Sexual Assault and Related Offenses Preliminary Draft No. 6 (March 2, 2016)
• Kevin Cole: Backpedaling in Place: The ALI’s Move from ‘Affirmative’ to ‘Contextual’ Consent
• Kevin Cole: Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, and Other Difficulties of ‘Affirmative Consent’ in the ALI’s Draft Sexual Assault Provisions