The “yes means yes,” or affirmative consent standard has already made its way through college codes of conduct in the U.S., and even Michigan. But is affirmative consent the next big thing to be changed throughout the American legal system?

It seems that the idea of affirmative consent has been sneaking its way in to the laws of states, and it’s currently a topic of debate at the American Law Institute. The ALI is responsible for drafting what’s known as the Model Penal Code, which most states’ statutes are derived and modeled from. The model code was last changed in 1962, and their versions of sexual assault statutes, comparable to Michigan’s criminal sexual conduct statutes, have not been changed since then.

Proposed drafts of the new model sexual assault statutes were circulated before the ALI’s annual meeting that takes place in May. Two large changes were apparent to the sexual assault models.

One proposed change would recommend affirmative consent to be added to the federal and state statutes for criminal sexual conduct or sexual assault. If current state statutes changed to this standard, it would mean that parties would have to consent to sexual contact, like kissing and touching of intimate parts, and consent to every act leading up to and including sexual penetration. For example, sexual acts would have to be accompanied by a series of questions and appropriate answers, instead of moving fluidly by reading into body language or continuing actions until being told to stop.

The second proposition is an expanded definition of sexual contact. In Michigan, the definition of sexual contact under MCL 750.520a is:

[T]he intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner for:

(i) Revenge.

(ii) To inflict humiliation.

(iii) Out of anger.

The definition of sexual contact in Michigan, and most other states, only involves the touching of “intimate parts.” Currently, the ALI proposed definition of sexual contact as it stands would include any body part, not only intimate body parts. So for example, the new version of sexual contact would include handholding, rubbing feet, or hugging for some type of sexual reason. If this definition also required affirmative consent, one would have to give consent for another person to be able to hold his or her hand, which seems quite absurd. If this definition is adopted, it will change consent as we know it. Now you will be required to have affirmative, explicit consent. No more of one thing leading to another.

Smith Blythe, PC is looking forward to seeing what the American Law Institute decides to change in the Model Penal Code, and further, what parts of Michigan’s statutes would be amended to reflect the changes made to the code, if any.

If you or a loved one is facing charges of criminal sexual conduct in any degree, or has questions about the criminal sexual conduct statutes as they stand, call our office to set up a consultation.

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