Many colleges have adopted a principle known as “affirmative consent,” which makes it easier to infer misconduct (and thus impose expulsion or other discipline) when a record is lacking in verbal or physical evidence one way or the other as to whether a student’s sexual encounter with another student was consensual. It might seem unthinkable to apply such a standard in criminal law, where the consequences are not expulsion but imprisonment and the burdens of sex offender registration.
And yet that’s the gist of a resolution urged on the American Bar Association by its Commission on Domestic and Sexual Violence. Read my account at Cato, and then for additional insight check out the letter from Bay Area employment lawyer Mark Schickman, who chairs that sponsoring commission, especially the portions characterizing “The Principle Behind the Opposition.” Emily Yoffe’s investigation into the oddly influential “freeze” theory is here.
It was a close-fought thing, but Monday afternoon the assembled ABA House of Delegates voted to table the resolution 256-165, killing it for this conference at least.
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At some point, the admission to the bar is going to have to be taken away from lawyers.
If affirmative consent is to become the accepted norm in relationships it must be shown to be mainstream. Perhaps the ABA should take a partial step by calling on Hollywood and the publishing industry to only make movies and publish books where the protagonists demonstrate affirmative consent and anybody not demonstrating affirmative consent be clearly labeled a villain.