Affirmative consent laws (or "yes means yes" laws) shift the burden of proving consent/non-consent from the state to the defendant.......?

....Legally speaking, a crime is defined by its elements, not affirmative defenses. Thus, rape is sexual touching without consent. Wouldn't passage of affirmative consent laws at the state (as opposed to university) level mean that the issue of consent is no longer an element of rape, but a defense against rape? After all, if the defendant bears the burden of proving that there WAS consent (as opposed by the prosecutor bearing the opposite proof) mean that rape would be defined as sexual touching, and consent is important only inasmuch as the defendant is able to prove it exists?

Update:

Since a crime is defined by its elements, and not by its affirmative defenses, wouldn't that mean that the crime of rape consists of one element: sexual touching. Doesn't this violate the notion of "the presumption of innocence" as expounded by the 5th, 6th, and 14th amendments to the US Constitution, as well as in SCOTUS cases Coffin v. United States and In re Winship by shifting the burden of a major element of a crime to the defendant?

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  • Anonymous
    4 years ago

    There are levels of charges for sexual touching. States have more specific definitions of "rape" than you are implying. Some levels are charged as "sexual assault".

    If you have my TV, and I charge you with stealing it but you claim I gave it to you, according to Judge Judy, you need some evidence- like a witness or a written statement saying that it was a gift. Why should rape be any different?

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  • Anonymous
    4 years ago

    i don't see how it changes anything.

    right now rape cases are usually his word vs her word.

    under "yes means yes" he says she said yes, she says she didn't.

    • ?4 years agoReport

      Under current law, it is the burden of the state to prove that she said "no" or was incapacitated to the point where she couldn't say no. Affirmative consent shifts that burden to the defendant (to prove that she said yes).

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