Proposed Changes to Model Penal Code Would Criminalize Normal Sexual Behavior

On May 17, 2016, the American Law Institute will vote on changes to the Model Penal Code that would criminalize current, and normal, sexual behavior. The changes would allow a defendant to be found guilty of sexual assault despite the fact that the alleged victim never indicated by speech or conduct that he/she did not want to have sex.

How can this be? The Model Penal Code, which is adopted and followed in whole or in part by about 2/3 of the states (including New Hampshire), is written by the American Law Institute (ALI). There are proposed changes from a radical minority in the ALI to move closer toward an "affirmative consent" standard similar to what has been administratively applied by universities and colleges for a little over five years as a result of the changes in Title IX.

As a result of Title IX, students are routinely being disciplined and kicked out of schools if they can't prove that their partner "affirmatively consented" to the sexual encounter. Title IX has proven to be a due process nightmare, and there are dozens of lawsuits against universtities and colleges as a result of the application of this unnatural standard.

How many times in your life have you been given "affirmative consent" with one party asking unambigously if sex is desired, and the other party unambiguously answering? This just isn't how humans interact sexually, especially young adults who are put in highly charged sexual situations after consuming drugs or alcohol.  

The proposed changes to the Model Penal Code would unconstitutionally shift the burden of proof to the defendant to prove that consent to the sexual act was given. Given the debacle Title IX has caused in the civil realm, who can think that inserting this standard into the criminal laws is a good idea?