American Law Institute Transforms the Criminal Definition of Sexual Assault

From Stuart Taylor, Jr., at RCP, "Legal Group Weighs Radical Expansion of Sex Crimes":

My Real Clear Politics piece, "Legal Group Weighs Radical Expansion of Sex Crimes": https://t.co/ngV67KEAO2

— Stuart Taylor (@staylor5448) May 14, 2016

Imagine the following case: Two recent college grads meet in a bar, talk, begin kissing, and go to her apartment. After a little more talking, they resume kissing there. He undresses her and initiates sexual intercourse. She neither objects nor resists. He leaves, and they have no further contact. A month later, she files a criminal complaint with police, complaining that this was rape because she never expressed verbal consent and was physically passive.

Under the law as it has been from time immemorial, the woman's complaint would be rejected because her failure to say no or resist would be considered consent.

But under proposals that will be put to a vote on May 17 at the annual meeting of the American Law Institute, the nation's most prestigious drafter of model laws, the man could be charged with of a felony punishable by up to five years in prison. Under the letter of the proposed new law, his defense -- "she never said no, or stop, or I don't want this, and she never tried to push me away" -- would not save him from being convicted and imprisoned even if the jury and judge believed him.

These proposals, by a powerful faction of the American Law Institute, are deeply offensive to prominent civil libertarians, feminists, scholars and practicing lawyers, and have provoked a controversy that has deeply divided the ALI.

The proposals have also alarmed the National Association of Criminal Defense Lawyers (NACDL), which assailed them in a March 2016 statement as "an unconstitutional shifting of the burden of proof requiring the accused to prove that consent was affirmatively given."

The battle within the ALI matters because the radical new proposals would be a giant step toward states prosecuting and imprisoning people for sexual activities that they had reason to believe were consensual.

This comes after more than five years of the Obama administration effectively ordering U.S. colleges and universities to use guilt-presuming procedures to expel scores of young men for similar conduct and a wide range of other sexual activities...

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