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GianCarlo Canaparo is a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
What do Prince Charming, quarterback Brett Favre, and an awkward teenager angling for a first kiss all have in common?
Criminals - American - Bar - Association - Assault
They could all be criminals under the American Bar Association’s proposed new sexual assault law.
The American Bar Association is considering whether to push states to amend their criminal codes to define consent in sexual assault cases as “the consent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact” and to require “that consent [be] expressed by words or action in the context of all the circumstances.”
Words - Consent - Competent - Act - Initiator
In other words, consent must be clear, competent, and renewed for each and every sexual act. If it isn’t, the initiator has committed criminal sexual assault.
The rule’s intentions are good; many sexual assault laws are out of date and in desperate need of rewriting. But this proposed rule is an overcorrection that would lead to absurd results.
Consider our three characters.
Prince Charming kissed Snow White and Sleeping Beauty while they were asleep and could not consent, so he’d go to jail. Brett Favre was notorious for cheerfully slapping teammates’ buttocks when they least expected it, so he’d go to jail. And if that awkward teenager who summoned the courage to move in for a first kiss didn’t first obtain consent, she’d go to jail too.
Naturally, the law shouldn’t let strangers go about kissing sleeping people or smacking buttocks. But if a wife wakes her sleeping husband with a kiss, it’s no more a sexual assault than if he playfully sneaks up behind her and surprises her with a hug.
American - Bar - Association - Rule - Ignores
The American Bar Association’s proposed rule ignores context entirely and would potentially criminalize...
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