Two young adults meet at a bar, share a few drinks, and end up back at the young woman’s apartment. After some talking and kissing, the man undresses her and initiates sex. The woman does not object or resist. He leaves the next morning and they never speak to each other again.
The above story is a common scenario in today’s society and is in no way considered illegal. Even if the woman were to object, her complaints would be dismissed due to her failure to resist or say no. If radical members within the American Law Institute get their way, however, that young man could be punished for his actions with up to five years in jail.
These radicals are led by Professor Stephen Schulhofer of NYU Law School, who aims to criminalize “commonplace or seemingly innocuous” sexual behaviors in order to change “existing social expectations” and restructure social norms.
His proposal would “effectively shift the burden of proof to the defendant by making him guilty of a sex crime – even if the accuser neither resisted nor protested – unless he can prove that the accuser ‘communicated willingness’ to engage in a specific sexual penetration or touching,” reports Real Clear Politics. (Not to mention the law would give every crazy ex-girlfriend grounds to imprison a former lover for no reason.)
Schulhofer’s proposal outlines a strict definition of consent and notes that passivity does not imply consent. “Consent may be revoked at any time…by behavior communicating that the person is no longer willing,” reads Section 213.0(d).
The document, which is incredibly offensive to feminists, civil libertarians, and practicing lawyers, suggests that women do not have the power (in a sexual circumstance) to even say “no.” Under the new law, a man’s common defense “she never said ‘stop’ or ‘no’ or ‘I don’t want to’; she never pushed me away,” will be rejected and he will face up to five years of imprisonment for his “crime.”
The proposal has alarmed the NACDL (National Association of Criminal Defense Lawyers), which denounced it in March as “an unconstitutional shifting of the burden of proof requiring the accused to prove that consent was affirmatively given.”
The American Law Institute – widely regarded as the country’s most prestigious drafter of model laws – is enmeshed in a serious civil war over the sex crime proposal. This battle has come to our attention because if passed would represent a huge step towards states prosecuting and jailing people for sexual activities that they had every reason to believe were consensual.
Schulhofer’s sex crime campaign comes after several years of the Obama Administration ordering universities and colleges to use guilt-presuming procedures to banish dozens of young men for similar behaviors. Universities in Connecticut, California, and New York are already required to discipline or expel students for sexual misconduct if they are accused of having sex without obtaining affirmative consent.
If adopted by voting members, the ALI proposal will become part of the group’s “Model Penal Code,” which more than two-thirds of the nation’s states incorporate into criminal laws. The proposal will be marketed as representing the enlightened agreement of legal profession leaders – potentially spurring states to adopt it.
The American Law Institute will vote on the controversial proposal this Tuesday, where Schulhofer and his pack will be up against more than 100 ALI members determined to shut the proposal down. The radical movement represents a minority within ALI’s 4,500+ membership, but the outcome of the vote is still in doubt because only members willing to travel to Washington, DC for the meeting will be allowed to vote.