The Burden of Consent: Due Process and the Emerging Adoption of the Affirmative Consent Standard in Sexual Assault Laws

The recent adoption of the “affirmative consent” standard in California and New York for sexual assault on state-run university campuses has placed a renewed focus on rape reform. Moreover, the American Law Institute has proposed revisions to the Model Penal Code’s sexual assault provisions for the first time since 1961; these revisions, in part, adopt affirmative consent at the misdemeanor level. This Note explores the due process considerations of an affirmative consent standard in both the university and the constitutionally protected criminal arenas. Specifically, this Note explicates which party must prove consent and the effect of that burden on constitutional guarantees. Such analysis is necessarily statute driven; however, this Note also uses property and contract doctrines to rebut some commonly held presumptions about consent and the burden of proof. This Note argues that if the burden of proving consent were placed on the defense (as an affirmative defense), such a burden would not violate constitutional due process— provided the prosecution has proved the elements of the crime. Moreover, this Note argues that consent as an affirmative defense would reconcile the disparate consent standards for crimes against a person’s sexual autonomy and his or her property.