Most laws, and most criminal cases, revolve around the question – where do we draw the line between acceptable behavior and non-acceptable behavior? That question is rarely black and white. There are often gray areas in-between for different reasons: the law isn’t clear, so there are exceptions to every rule. Sometimes, the legislature changes the lines/the goalposts. Sometimes, the public decides a change is warranted.

Consent in rape and sexual assault cases is one of those seemingly black and white laws that has numerous shades of gray. For defendants, consent is generally a defense to the criminal charges. More and more though, the government and victims are arguing that the context of how the consent was issued and whether it was later revoked needs to be considered.

Affirmative consent

A recent op-ed in the Washington Post illustrates the difficulties. The writer focused on affirmative consent: “The idea behind affirmative consent sounds harmless enough; make sure your partner is actively interested rather than passively going along. But legal systems cannot be run on harmless generalities. They demand firm guidelines, and so many advocates for affirmative consent say you must obtain unambiguous agreement before you so much as touch the other person, and at each step thereafter.”

Affirmative consent sounds like a good idea in the abstract. In practice, sexual relations do rely on some degree of spontaneity. They do rely on “losing yourself in the moment.” If every encounter requires a ten-page legal document, witnessed, and notarized; then there will be a lot of people watching TV because it’s safer than trying to be intimate.

Affirmative consent “effectively shifts the burden of proof to the accused, while leaving no way to provide that proof, absent a written contract.” And, even if the accused can show the intimacy began with affirmative consent, does the accused need to keep asking every few seconds to be sure the consent is still valid?

At the core, the affirmative consent issue tries to shift the burden from speaking out and saying no – at which point the accused should know to stop – to continually waiting for a yes in order to proceed with the sexual relationship. The shift is at issue because legislatures and advocates recognize that many women are afraid to say “no,” and may be incapable of doing so if they have had too much to drink.

Affirmative consent has been approved by New York and California as a requirement on state college campuses. Some delegates to the American Bar Association are urging state legislatures to adopt the affirmative consent standard in their criminal codes. A majority of delegates, so far, are not pushing for the affirmative consent standard.

The Annapolis defense attorneys at Drew Cochran, Attorney at Law, have been fighting for the accused for nearly 20 years. We assert every factual and legal defense case possible. We recognize that in many rape and sexual assault cases, the case ultimately comes down to the credibility of the accuser and the accused. We have the experience to raise the correct defenses while respecting the character of the witnesses. For help with any rape or sexual assault charge, call Drew Cochran, Attorney at Law at 410.777.8103, or fill out our contact form to schedule an appointment.

And remember – Keep Calm, and Call Drew.