Contact: Rebecca Stewart

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Center for Prosecutor Integrity Urges ABA Delegates to Reject Flawed Affirmative Consent Resolution

WASHINGTON / August 7, 2019 – Today the Center for Prosecutor Integrity is urging the American Bar Association House of Delegates to reject Resolution 114, which calls on states and courts to implement an affirmative consent standard for sexual activity. The proposed Resolution states:

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

The ABA affirmative consent proposal violates the Due Process Clause of the Fifth and Fourteenth Amendments by shifting the burden of proof to the accused person, effectively eliminating the presumption of innocence.

Affirmative consent has been debated by the American Law Institute in recent years, with various proposals repeatedly rejected by the ALI membership (1).

In 2014, the U.S. Department of Education turned down a proposal to incorporate affirmative consent into a proposed regulation (2). Two years later, affirmative consent bills were introduced, and rejected by legislatures in the following states: Hawaii (HB 597 and SB 3119), Iowa (HSB 637 and SF 2195), Maryland (HB 1142), Michigan (HB 4903 and SB 512), Minnesota (HF 3100 and SF 3088), Missouri (SB 626), New Jersey (A 2271), North Carolina (HB 474), and Pennsylvania (SB 1005) (3).

Various groups have expressed opposition to ABA Resolution 114:

  • National Association of Criminal Defense Lawyers (4)
  • Simple Justice (5)
  • Foundation for Individual Rights in Education (6)

An affirmative consent standard would dramatically increase the likelihood of wrongful determinations of guilt. In one case, Judge Carol McCoy overturned a decision by the University of Tennessee at Chattanooga to expel a student based on its affirmative consent policy. “The UTC Chancellor improperly shifted the burden of proof” and the “ability of an accused to prove the complaining party’s consent strains credulity and is illusory,” the judge opined (7).

The entire ABA Resolution is available online (8).



The Center for Prosecutor Integrity is a 501(c)(3) non-partisan organization working to strengthen prosecutor ethics, restore the presumption of innocence, and end wrongful convictions.