From the President: Unleashing the Power of NACDL and Our Affiliates

NACDL and its affiliates opposed ABA Resolution 114 because it called for legislatures to adopt laws that would significantly alter the law with respect to sexual assault crimes.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

NACDL is actively working to reduce overcriminalization and overincarceration. On Aug. 12, 2019, the ABA House of Delegates voted by a margin of 256 — 165 to postpone indefinitely Resolution 114, which called for legislatures to adopt laws that would have significantly altered the law with respect to sexual assault crimes. Resolution 114 urged legislatures to adopt “affirmative consent” requirements that redefined consent as “the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances. …” The word “assent” generally refers to an express agreement. In addition, the resolution would have dictated that consent must be “expressed by words or actions,” requiring expressed affirmative consent to every sexual act during the course of a sexual encounter.

Had Resolution 114 passed, it would have encouraged politicians to introduce into criminal law one of the most unfair aspects of campus Title IX adjudications, creating a substantial likelihood of pervasive injustice and wrongful conviction.

NACDL, with the help of its affiliate organizations, actively opposed ABA Resolution 114 because it shifted the burden of proof by requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent. The resolution assumed that sexual activity is sexual assault in the absence of any evidence regarding consent, forcing the defendant to testify in order to present evidence that consent was affirmatively expressed — a radical change in the law that would violate due process, the accused’s right to remain silent, and the presumption of innocence. An affirmative consent standard would turn traditional American principles of justice on their head by placing the burden on the defendant to disprove his or her guilt.

The ABA Criminal Justice Section, whose membership is comprised of prosecutors, judges, defense lawyers (including NACDL members) and academics, unanimously withdrew its support and opposed the resolution. Over 100 members of the American Law Institute also joined NACDL in opposing consideration of Resolution 114 in a letter claiming that the ABA Report in support of the resolution was based on bad history and bad science. A Position Statement issued on Aug. 22, 2019, by the Association of Title IX Administrators (ATIXA), the leading provider of Title IX training and certification in the United States, similarly warned against allowing trauma to unduly influence the interpretation of evidence.{1} 1  Press Release, Association of Title IX Administrators, ATIXA Issues Position Statement on Trauma-Informed Training and the Neurobiology of Trauma (Aug. 22, 2019), available at https://www.prnewswire.com/news-releases/atixa-issues-position-statement-on-trauma-informed-training-and-the-neurobiology-of-trauma-300905388.html.

There is NO doubt whatsoever that the vote to postpone consideration of Resolution 114 indefinitely was singularly the result of efforts by the criminal defense bar. Look no further than the op-ed published by the Wall Street Journal: “Will the ABA Reject Due Process?”{2} 2  K.C. Johnson & Stuart Taylor Jr., Editorial, Will the ABA Reject Due Process? Wall St. J., Aug. 11, 2019, available at https://www.wsj.com/articles/will-the-aba-reject-due-process-11565559212. NACDL and its affiliate organizations mobilized in an unprecedented way to alter the outcome of this ill-conceived and unconstitutional initiative. There is no way to overemphasize the critical role that NACDL’s affiliate organizations played in this process by endorsing the opposition and reaching out to their ABA delegates across the country and urging them to oppose the resolution.

Scores of NACDL members and affiliate organizations from Virginia, Georgia, Pennsylvania, Connecticut, Minnesota, New Jersey, North Carolina, Louisiana, Texas, Illinois, and the District of Columbia came out against Resolution 114 and contacted their ABA delegates and leaders to express opposition to the resolution. This is a triumph and we should all celebrate it as such. It is also an important and unprecedented opportunity to reflect on what we can accomplish when NACDL and its state and local affiliates band together in pursuit of a common objective. In this case, we were on the defensive to prevent a result that would have led to untold injustice. We can do the same thing when we collectively promote reform initiatives to promote greater justice and humanity in the criminal justice system. Let’s build on the ABA effort to show the nation what the defense bar can contribute to the cause of justice.

It is time to proactively engage with all our affiliate organizations and invite them to fully engage with us — especially when it comes to shared advocacy opportunities. Affiliates elect their own representatives to the NACDL Board of Directors to advocate on their behalf. The NACDL Membership Committee leadership has appointed regional delegates to manage specific regions across the country. Regional delegates are responsible for contacting state affiliate lawyer leaders, developing relationships with the affiliates, and learning about the organizations and opportunities for collaboration. Many of you are also members of your state affiliates. Help NACDL spread the message.

NACDL tracks pending legislation in all 50 states and the District of Columbia. NACDL Director of Advocacy Monica Reid is currently tracking over 30 criminal justice issues; information about these issues is available on our website. NACDL can provide affiliates with model legislation, outreach to national organizations in support of state initiatives, and an effective grassroots tool allowing participants to contact their federal, state and local elected officials quickly and effectively. NACDL also offers advocacy training, an advocacy resource library, and state legislative outreach events.

One example of this collaboration includes NACDL’s collaboration with NYSACDL, connecting NYSACDL with representatives from the Law Enforcement Action Partnership (LEAP) to obtain letters of support for New York’s discovery reform efforts and securing an op-ed in the New York Law Journal from an assistant district attorney and a former assistant district attorney in support of open discovery. NACDL also issued a legislative action alert urging its New York members to write their lawmakers in support of New York’s discovery reform legislation, the most progressive discovery law in the nation. More than 1,700 NACDL members sent 67 letters to New York House and Senate members. NACDL is now working with NYSACDL on a New York state Trial Penalty Report that NACDL hopes will be a model that other states can use to do their own studies and reports. NACDL is providing staff members to help gather data, determine the scope of the project, and design a survey. In addition, NACDL has secured the assistance of over a dozen pro bono attorneys to support the project.

In the category of “Did You Know?,” other ways that affiliates engage with NACDL include participating in the Council of Affiliates meetings, joining the NACDLConnect Affiliate Online discussion group, cross-promoting CLE programs, and conducting joint membership drives. Among other benefits, NACDL also offers its affiliate organizations reduced seminar rates, two free NACDL memberships and one free seminar a year to auction off at local fundraisers, free annual subscriptions to The Champion and NACDL’s E-News, and access to NACDL’s Expert Witness Fund to bring in a witness to testify at legislative hearings or commission meetings.

It is time to engage with our affiliate leaders to make NACDL’s voice and message heard in state legislatures. Talk to your local affiliate leaders. Invite them to call Monica Reid, NACDL Affiliate Liaison Gerald Lippert, or me. Whatever happens at the ABA, the campaign for affirmative consent, like the rush to pass unconstitutional anti-abortion statutes, will now move to the state legislatures. Think of what we can accomplish when NACDL and its state and local affiliates join together in pursuit of our common goals. So I’m asking you as NACDL president, help me make it happen.

About the Author

Nina J. Ginsberg, a founding partner at DiMuroGinsberg, P.C., in Alexandria, Virginia, has practiced criminal law for more than 35 years. She has represented individuals and corporations in a wide range of matters, with a focus on national security law, white collar investigations and prosecution, financial and securities fraud, computer crime, copyright fraud, and professional ethics.

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Nina J. Ginsberg (NACDL Member)
DiMuro Ginsberg, P.C.
Alexandria, Virginia
703-684-4333
nginsberg@dimuro.com
www.dimuro.com
@DiMuroGinsberg

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