Public Interest Advocacy

Prosecuting Sheldon: Expanding Affirmative Consent

Sheldon: Baffling, right? We were necking like a couple of hooligans under the school bleachers. I stopped so I could ask the question. Next thing I know, good-bye, kissy face. Hello, yelly face. -- "The Big Bang Theory"

The prestigious American Law Institute (ALI) is considering an unprecedented expansion of its influential Model Penal Code relating to sexual offenses. The current draft would apply to everyone the bizarre "yes means yes" affirmative consent standard that the federal government has required colleges to adopt. The main author of the ALI draft, Professor Stephen Schulhofer, also has been tasked with recommending similar changes to the Uniform Code of Military Justice.  The draft substitutes the ideology of the moment for the due process protections that we have enjoyed for 800 years, and the brunt of it will fall on children and socially awkward adults.

The draft rule in its current form requires prior "affirmative consent" to any sexual contact. Unlike most state criminal codes, the sexual contact in the ALI draft is not limited to specific body parts. As the minority report on the draft notes, someone who simply grabs another person's hand (cue Sheldon Cooper and his friends) could be guilty of sexual assault.

This standard is rife with problems for young people, who do not yet know the adult rules for romance, particularly those who are taking their cues from entertainment or the Internet. Socially awkward young people also would be caught up in the dragnet, and with no intent of harming anyone, find themselves labelled as sex offenders and sentenced to a lifetime on state registries. Developmentally appropriate behavior for children would become, at best, grounds for a trip to juvenile court.

The co-author of the draft, Professor Erin Murphy, defends the change by saying, "the hope is that the law will encourage people to clear up ambiguity,” says Murphy, "instead of shielding those who take advantage of ambiguity." That philosophy, however, simply treats women (the most common victims of sexual assault) as if they were children. It is the philosophy that underlies statutory rape statues -- children are not responsible for any ambiguity in their consent or their age. It is the adult in the situation who bears that responsibility.

Traditional criminal codes, however, presume that adult victims are capable of expressing themselves to avoid ambiguity. Thus, both adults (victims and defendants) bear responsibility for ambiguity. Rather than following the historic due process rules that treat adults as adults, the ALI draft code imposes adult standards on children and child-like presumptions on women.

More important, the new code is not necessary. I have seen no prosecutors agitating for such an expansion. In fact, as one former prosecutor stated at the ALI meeting in June, prosecutors are used to fighting cases of ambiguous consent. "I have to prove more than if she said 'no,' but I can prosecute those cases and win those cases now." As a former prosecutor of sex crimes, I agree -- the historic justice system, with its emphasis on due process, may lose a guilty person now and then, but prosecutors generally can marshall more than enough evidence to get a conviction against people who truly take advantage of others. There is no need to regress to the Victorian model of women as helpless victims who constantly must be protected.

Let us hope that both ALI and the military listen to the caution of the minority report, and decide to wait out  this current wave of Puritanism.

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