Raul Jauregui opposition to proposed American Bar Association 114 on Affirmative Consent
August 8, 2019
VIA E-MAIL
Michael H. Reed
Chair, ABA Standing Committee on Constitution and Bylaws.
ABA Pennsylvania State Delegate
Pepper Hamilton
3000 Two Logan Square
Philadelphia, PA 19103
RE: Opposition to the Proposed ABA Resolution 114 on Affirmative Consent
Dear Mr. Reed:
I comment on the following proposed paragraph only:
”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.”
This ABA proposed resolution biasedly genders the legal regulation of sexual conduct and shifts the historical assignation of burdens of proof to the state on to the alleged perpetrator which is also biased. Thus, I oppose it and I ask that you and your fellow ABA members consider these reasons for my opposition before voting on it:
1. As the National Association of Criminal Defense Lawyers stated on July 25:
“NACDL opposes ABA Resolution 114 because it shifts the burden of proof by requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent. The resolution assumes guilt in the absence of any evidence regarding consent. This radical change in the law would violate the Due Process Clause of the Fifth and Fourteenth Amendments and the Presumption of Innocence.”
NACDL statements and letters available at:
https://www.nacdl.org/Advocacy.aspx?id=14904
2. As Professor Janet Haley published, affirmative consent makes weak women:
The move to affirmative consent as a part of everyday sexual conduct has been codified in California and New York’s statutes regulating its outstanding public higher education systems. These statutes consist of Cal. Educ. Code § 67386 (2015) and N.Y. Educ. Law § 6441 (2015). The version of feminist legal scholarship that promotes affirmative consent believes it is necessary because a woman is always oppressed and thus never free to consent. They believe that perpetual female rape stems from the inbred and ingrained hetero-normative situation of the United States in the XXI century.
“…in schools and shopping malls all over the United States, women faced the same male domination that they do when living in the midst of a civil war or international invasion. Under that domination, they may give consent to sex, but that consent is bankrupt from the moment it is given. If they later retract it and declare that the sex was unwanted, they should be believed.”
Janet Haley: Currents: Feminist Key Concepts and Controversies. The Move to Affirmative Consent, in Signs: Journal of Women in Culture and Society 2016, vol. 42, no. 1, available at:
https://www.journals.uchicago.edu/doi/pdfplus/10.1086/686904
3. As the Supreme Court stated, affirmative consent is not part of Title VII:
The Supreme Court has said that, to be sexual harassment in the employment discrimination context, the sexual conduct must be not only unwanted but also sufficiently severe or pervasive. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21–22 (1993); Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75, 81 (1998); Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 651 (1999). However, the affirmative consent movement, whose greatest successes include changing the regulation of sexual conduct in colleges and universities through Title IX and student codes of behavior, clashes with the Supreme Court’s view of the seriousness of the behavior required to claim sexual harassment. The problem will keep cropping up because Courts are supposed to interpret Title IX in accordance with Title VII and now the Title IX environments include and expel respondents based on lack of “affirmative consent” which is not the case in Title VII. That is to say, Title IX at the ground level college or university enforcement has shed the “severe or pervasive” requirement of Title VII through “affirmative consent” and this proposed ABA resolution will do the same to criminal law in general.
4. I believe that the gender-biased Affirmative Consent notion harms the weak:
The push for affirmative consent models mostly on one group: heterosexual women who have sex with a heterosexual man and who do not really consent to that conduct—even though they do not communicate that lack of consent—because of the historical role of women as sexual servants of men. But the reality of human sexual life is more fluid and permutable. The models behind affirmative consent’s inability to consent fail when the sexual conduct occurs between two women one of whom later regrets the act. This reasoning also fails when a woman has sex with a man who is gay but not out and who is thus forced into the act precisely to not be outed which would run afoul of the very hetero normativity that is offered to support Affirmative Consent.
5. I believe that Affirmative Consent goes against the grain of our legal system:
The affirmative consent campaigns respond to a horrific, yet exaggerated belief, that women experience disproportionate rates of sexual assault.[1] As a result the affirmative consent concept focuses on providing speedy protections on the large scale, of course at the expense of the procedural protections for the alleged perpetrators. Affirmative consent blows through the deliberative tradition that guarantees due process or fairness in the conviction of such a heinous act. Thus, affirmative consent “is easier to prove and harder to defend than rape because there is no force or threat-of-force requirement. And it is easier to prove and harder to defend than sexual assault in existing sexual assault statutes because consent must be affirmative.” Haley, id. And thus, in its speed, affirmative consent fails our fundamental guarantee to not convict the innocent.
Sincerely,
/s/_______________
Raul Jauregui
Jauregui Law Office
720 Arch Street, No. 861
Philadelphia, PA 19107
(215) 559-9285
[1] To be clear, one rape, is one rape too many--it is a heinous act that deserves opprobrium, and one that forces its victim to heal in ways that hurt. That said, the allegation that statistics show that “1 in 5” women in college or university in the United States are sexually assaulted is clearly debunked. See for example:
The 2015 Slate story examining the AAU survey available at:
The 2014 Slate piece on Title IX with a section on statistics available at:
Stuart Taylor and KC Johnson, The Campus Rape Frenzy, with a chapter on “Misleading through Statistics”, available at:
https://www.amazon.com/Campus-Rape-Frenzy-America%C2%92s-Universities/dp/1594038856
Shep Melnick, The Transformation of Title IX, in his chapter “How Prevalent is Sexual Assault on Campus?” available at: