The American Bar Association’s (ABA) Criminal Justice Section and Commission on Domestic and Sexual Violence proposed a resolution to the organization that would change the standards applied in criminal sexual assault cases. Essentially, the proposal would shift the burden to defendants in these matters, making them prove that they received affirmative consent from the alleged victim before and during sexual activity.
Assumption of Guilt
The proposed resolution should genuinely concern and trouble anyone who cares about our Nation’s established principles guaranteeing due process of the Law and fundamental fairness in criminal proceedings for every person accused of a crime because it essentially flips the U.S. Constitution on its head. The centuries-old standard for, and hallmark of, American Jurisprudence has always been the presumption of innocence, not an assumption of guilt. However, by requiring a defendant to demonstrate that the person with whom they were sexually involved voluntarily and consciously agreed to the act, courts would infringe upon their rights by impermissibly shifting the burden on proof to the accused to prove his innocence.
The National Association of Criminal Defense, which opposes the ABA’s resolution, responds that the proposed changes would mean that a person is assumed guilty, which expressly violates due process under the Fifth and Fourteenth Amendments. Redefining sexual assault case standards could result in an innocent person being convicted even though the prosecutor could not prove lack of consent. Currently, and for more than 200 years, the standard is that the accuser must prove beyond a reasonable doubt that the alleged offense was committed before a judge or jury can find the defendant guilty. Heightened sensitivity to victims’ rights and increased victim-advocacy must never be permitted to override the bedrock foundations of a Criminal Justice System that make American court-room procedures second to none in terms of due process, fairness, and equality, regardless of the nature of the underlying accusation or alleged crime.
Unfortunately, placing the burden on the defendant to prove affirmative consent is already happening in Title IX sexual misconduct cases, but it shouldn’t be. In 2014, a Tennessee judge decided in favor of a student, C. Mock, who sued his university after it found him guilty of sexual assault. The school said Mock failed to show he had received permission from the alleged victim. However, the judge hearing the lawsuit case said that such standard unfairly shifted the burden of proof.
Advocates use faulty logic to support the proposal. They suggest that science shows that people who are involved in a traumatic situation freeze and might not be able to fight off their alleged attacker. Therefore, a lack of resistance does not mean they gave consent for the act. However, in 2017, Emily Yoffe noted that such reasoning suggests that the alleged victim’s behavior not only does not undermine the validity of the claim but also implies they were subject to sexual assault, which is a logical fallacy.
The Change Should Be Prevented
Political pressures and #METOO activism must not be allowed to change due process and fundamental fairness. These principles are absolute and cannot be selective. The proposed resolution by the Criminal Justice Section and the Commission on Domestic Sexual Violence would let the System cherry-pick when it is that certain constitutional rights should (or should not) apply. It would also, almost certainly, encourage parallel creation of an arbitrary and base-less presumption of credibility/believability for sex crimes accusers. In short, the proposal presents a dangerous and slippery slope that would not only have significant legal ramifications for defendants accused of sexual assault, but ultimately for persons accused of any crime(s) of any nature.
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