Recently, the American Bar Association’s House of Delegates rejected a resolution to endorse the Affirmative Consent Standard, which called for state legislatures to “define consent in sexual assault cases as the assent of a person competent to give consent…and provide that consent is expressed by word or action in the context of all circumstances”.
The resolution would have potentially violated due process rights of those accused of sexual assault. Absent any clear evidence of consent, the accused person would face an uphill battle trying to prove consent rather than requiring the prosecution to prove lack of consent. The “guilty until proven innocent” approach violates Due Process Clauses of the Fifth and 14th Amendments, jeopardizing the rights of all Americans.
While affirmative consent is an important cultural prescript that encourages proactive, agreed to consent, making it a matter of law could easily lead to charges of sexual assault where it cannot be easily proven that both parties expressly communicated consent. While some may indeed be guilty of sexual assault, others may be innocent but unable to prove it for lack of evidence of affirmative consent.
Some college campuses have moved toward the affirmative consent standard, providing a glimpse of what can go wrong. When someone files a complaint alleging sexual misconduct, the burden of proof shifts to the accused who must provide evidence to the contrary or risk expulsion, often derailing a college education and a career. While, unfortunately, there are cases of sexual assault on college campuses, there are also cases where someone is falsely accused who may have a difficult time proving affirmative consent.
Outside of the university setting, the standard can be far more consequential. A conviction for sexual assault can translate into months of incarceration for misdemeanor offenses to decades for felony sexual assault crimes. With so much at stake, many feel that the decision to shelve the affirmative consent resolution protects Americans rights to due process, ensuring that someone accused of a crime is presumed innocent until proven guilty in a court of law.
Contact an Experienced Wisconsin Sexual Assault Criminal Defense Lawyer
Sexual assault is a serious crime in Wisconsin. If you have been charged with Wisconsin sexual assault, it is important to seek the help of an experienced criminal defense attorney. Contact the Waukesha sexual assault defense attorneys of Andrew C Ladd LLC for immediate assistance today at 262-542-3900.