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Key Facts
- National overview: ABA Resolution 114 urged a consent definition in sexual assault cases based on the assent of a person competent to give consent.
- National overview: The resolution’s consent framing was tied to assent to engage in specific acts, including sexual penetration, oral sex, or sexual contact.
- National overview: ABA Resolution 114 stated that consent is expressed by words or action evaluated in the context of all the circumstances.
- National overview: The resolution urged rejecting any requirement that sexual assault victims carry a legal burden of verbal or physical resistance.
- National overview: The accompanying report framing presented the policy goal as rejecting the premise that consent to sexual activity should be assumed or premised.
- National overview: Because the operative language “urges” legislatures and courts, the archived text is best understood as ABA policy advocacy rather than a binding rule of law.
Why this archived ABA item mattered for consent debates
ABA Resolution 114 appears in ABA House of Delegates policy materials from the early 2010s and addresses a recurring legal-communications dispute in sexual assault cases: how the law should describe consent. In reviewing the historical item, the key is to separate what ABA urged from what courts or statutes ultimately required, because the resolution is framed as advocacy (“urges”) directed at legislatures and courts rather than as a binding judicial decision.
- Why this archived ABA item mattered for consent debates
- What the archive contains a resolution plus a report to the House of Delegates
- The core consent definition ABA Resolution 114 urged
- “Words or action” and “all the circumstances”
- The resolution’s resistance burden rejection
- Consent by assent versus resistance burden concepts (compact comparison)
- Reading this as ABA policy (not binding law)
- Why archived policy text is often misread
- How to verify current legal status (briefly)
- Related legal information
- Sources
What the archive contains a resolution plus a report to the House of Delegates
The recovered archive centers on materials labeled as a report to the ABA House of Delegates that includes “RESOLUTION 114.” The package pairs an operative “Resolved” clause (the policy’s urging language) with report framing that helps explain why the ABA submitted the resolution to the House process.
The core consent definition ABA Resolution 114 urged
In its operative “Resolved” clause, ABA Resolution 114 urged lawmakers and courts to adopt a consent definition built around three ideas stated in the resolution’s own wording:
- consent as assent by a person competent to give consent
- assent to engage in specific sexual acts (as listed in the resolution’s consent framing)
- consent expressed by “words or action” and assessed in “the context of all the circumstances”
“Words or action” and “all the circumstances”
A notable feature of the urged framing is that consent is not presented as a purely formulaic checklist. Instead, ABA Resolution 114 describes consent as expressed by “words or action,” with that expression understood in “the context of all the circumstances.” Read as policy drafting, that language emphasizes a contextual approach to how consent is communicated and evaluated, rather than focusing only on whether a particular type of opposition occurred.
The resolution’s resistance burden rejection
ABA Resolution 114 also takes aim at a flashpoint found in some discussions of sexual assault prosecutions: whether victims should face a legal burden related to resistance. The resolution urges rejecting “any requirement” that sexual assault victims have a legal burden of verbal or physical resistance, shifting the policy focus away from resistance-based burdens.
Consent by assent versus resistance burden concepts (compact comparison)
The operative “Resolved” clause creates a contrast between the consent framing it urged and the victim-resistance-burden concept it urged rejecting.
| Concept in ABA Resolution 114 | Framing the resolution urged to reject |
|---|---|
| Consent defined around assent by a competent person to specific sexual acts | Any legal requirement placing a burden on victims to show verbal or physical resistance |
| Consent expressed by “words or action” assessed in “the context of all the circumstances” | A resistance-burden concept that redirects attention away from assent-based consent |
Reading this as ABA policy (not binding law)
ABA resolutions adopted through the House of Delegates are policy positions of the ABA that are published as resolution materials. That context matters for interpretation: when the operative clause says it “urges” legislatures and courts, the text signals advocacy aimed at influencing legal standards, not the creation of a self-executing rule for criminal liability. For modern readers, the practical takeaway is interpretive: treat the archived resolution as a historical articulation of ABA policy and then verify any current legal standards separately through current statutes, regulations, and controlling case law.
Why archived policy text is often misread
Archived policy materials can be mistaken for controlling authority when readers focus only on the substantive phrasing (e.g., definitions or standards) and ignore the resolution’s procedural posture. For Resolution 114, the drafting posture—urging legislatures and courts—plus the description of resolutions as ABA policy helps prevent that common error: it is an advocacy record from a past legal reform debate, not automatically a present-day rule of decision.
How to verify current legal status (briefly)
To confirm what the law currently requires in any jurisdiction, you would typically compare the archived ABA language against: (1) current state statutes defining consent and required elements for sexual assault offenses, and (2) current appellate decisions interpreting those statutes. That verification step is especially important when the archived item used urging language aimed at future adoption rather than providing a final, binding determination.
