ALI Model Penal Code for Sexual Assault

The American Law Institute (ALI) is an organization of legal scholars working to promote the clarification and simplification of United States common law. In 2012, a Prospectus was issued proposing to update the ALI Model Penal Code (MPC) on Sexual Assault, last revised in 1962. The Prospectus highlighted several anachronisms of the 1962 version such as the gendered character of the offense and the broad marital exemption. New York University law professor Stephen Schulhofer was selected as the project Reporter. Schulhofer is known for his book The Culture of Intimidation and the Failure of Law, which argued for the controversial concept of “affirmative consent.”

Following is a summary of the project’s developments from 2014 to the present. For each year, the key actions are summarized, memoranda listed, and pertinent legal reviews and editorials cited.

2014 Developments

On April 30, Tentative Draft No. 1 was released. A review of the Draft revealed that it proposed to enormously expand the criminal liability of sexual conduct at a time when the American Bar Association, lawmakers, and the American public have come to the realization that our country faces a serious problem with over-criminalization. More specifically, the Draft:

  •  Created an array of layered offenses that invite prosecutorial abuse by over-charging to coerce a plea to a lesser offense.
  • Stated that the MPC’s intention is to criminalize behavior that is “commonplace or seemingly innocuous” for the purpose of changing “existing social expectations.” (Introductory Note)
  • Criminalized sexual contact in office or business settings where one party makes the claim that the other party granted or didn’t grant, or offered or failed to offer some favor to the accusing party. (Section 213.2(1)(b)(iii)).
  • Drafted the definitions and offenses in an overly broad manner for the explicit purpose of criminalizing too much to avoid the risk of criminalizing too little. (Commentary to Section 213.4).
  • Treated silence, passivity, or inaction by one party as “non-consent,” creating criminal liability for the other party. (Commentary to Section 213.4).
  • Criminalized all body contact (even through clothes) for the purpose of “sexual arousal,” unless there has been prior “positive agreement communicated by either words or action.” (Section 213.5(3)).
  • Potentially criminalized both parties in any encounter since each new touch or escalation by either person must be preceded by “positive agreement communicated by either words or action.” (Section 213.5(3)).  One can be considered guilty for initiating a hug, and the other becomes guilty by escalating to a kiss.
  • Did nothing to reduce the problem of wrongful convictions that are occurring under existing law.

This Draft was discussed at the ALI Annual Meeting, held May 19-21. Time ran out before the debate could be concluded, and no vote was taken.

Legal Review:


2015 Developments

In early 2015, Discussion Draft No. 2 was submitted for discussion at the Annual Meeting held in Washington, D.C. In response, an eight-page Memorandum highlighted how the proposed Model Penal Code would worsen the problem of over-criminalization, and called for a “fundamental rethinking” of the document. Over 80 ALI members signed the Memorandum.

On September 5, Preliminary Draft No. 5 was released. In response, over 100 ALI members signed a Memorandum detailing a number of procedural and substantive concerns, especially with regard to the MPC’s affirmative consent provisions, and calling on the Council to postpone taking action.

In response, over 50 ALI members co-signed a Memorandum detailing concerns regarding nine foundational issues on which the structure and drafting of the Blackletter depend, and which needed to be adequately discussed by the membership.

In addition, ALI launched a new, related Project on Sexual and Gender-Based Misconduct on Campus: Procedural Frameworks and Analysis. The project description states:

A partial list of issues to be considered includes reporting procedures; confidentiality; relationships with police and local criminal justice; interim measures and support for complainants; investigation and adjudication; the role of lawyers; the creation and maintenance of records; sanctions or remedies; and appeals. The project will also examine informal resolutions, as well as the nature of hearings.

Co-Signed Legal Memoranda:

Legal Reviews:


2016 Developments

At its January meeting, the ALI Council approved the Reporters’ revised version of Council Draft No. 3, Sections 213.0(3) and 213.2, subject to the approval by the ALI membership at the May annual meeting.

In response, the National Association of Criminal Defense Lawyers issued a strong critique of Preliminary Draft No. 6, arguing, “Yes mean yeas and no most certainly means no. But between yes and no lies the very real but vague and ambiguous concept of maybe. No person should face prosecution, conviction, and imprisonment based on a vague and ambiguous law. Proposed Section 213.0(3) of Preliminary Draft 6 of the Model Penal Code does exactly that.”

At the annual meeting, the proposed definition of consent became the focus of contentious debate. The ALI later reported:

At the 2016 Annual Meeting, an amended version of Subsection 213.0(3) (definition of consent) was presented in a motion from the floor by Professor Kate Stith of Yale Law School. The motion passed by a voice vote and the membership approved the amended language of Subsection 213.0(3), also by a voice vote. The amended version will be presented to the ALI Council at its next meeting in October 2016. A motion to suspend indefinitely or characterize Tentative Draft No. 2 as a Discussion Draft failed by a vote of 128 in favor to 171 against. There was insufficient time to discuss Section 213.2.

This was the final approved definition:

“Consent” means a person’s willingness to engage in a specific act of sexual penetration or sexual contact. Consent may be expressed or it may be inferred from behavior, including words and conduct—both action and inaction—in the context of all the circumstances.

See: Motion Concerning Sec. 213.0(3) and Sec. 213.2, Tentative Draft #2, Model Penal Code: Sexual Assault.

Co-Signed Legal Memoranda:

Legal Reviews:


2017 Developments

At its January meeting, the Council approved Sections 213.0(7), 213.1, and 213.2 of Council Draft No. 5, subject to the discussion at the meeting. There was insufficient time to consider Sections 213.3 and 213.4.

Tentative Draft No. 3 was released in May. At its 93rd Annual Meeting, the membership debated proposed definitions. A memorandum dated May 18 and signed by over 100 ALI members expressed concerns that Tentative Draft No. 3 did not adequately address previously identified concerns with regard to over-criminalization:

  • “Penetration” was defined to included non-penetrative actions such as “touching of the anus or genitalia of one person by the mouth or tongue, of another person…”
  • Overbreadth in the definitions of felony offenses, including doing a “wedgie” on another person.
  • All offenses were graded as if “all acts were equal to the most severe act that is covered by the offense.”
  • Inadequate positioning of the mens rea wording in the definition of forcible rape.
  • Failure to adequately address other long known problems.

Co-Signed Legal Memoranda:

Legal Review:

2018 Developments

The Reporter continued making refinements to the proposal, succumbing to a similar fate as in previous years. As ALI members previously noted in their April 4, 2016 memorandum:

Regrettably, we must report that the “Whack-a-Mole” problem first noted by Professor Cole has recurred in CD7 where certain improvements are offset by the introduction or exacerbation of other problems elsewhere in the draft.  Kevin Cole, “Like Snow to the Eskimos and Trump to the Republican Party:  The ALI’s Many Words for and Shifting Pronouncements About ‘Affirmative Consent,’” at 5, , footnotes omitted.  In particular, CD7 regresses to “affirmative consent” despite the overwhelming Member opposition to that concept and despite the membership vote to both reject the Reporters’ definition of consent and to substitute a specific definition for the term “consent.”

Ten months later, little progress was evident as increasingly impatient ALI members summarized the current state of affairs:

Ten prior co-signed memoranda as well as participation at Project Meetings and Annual Meetings have made clear the Membership’s concerns about a number of core issues including overcriminalization and the repeatedly rejected “affirmative consent” standard.  We are compelled to inform you that those problems (and others) remain and are accompanied by the introduction of new problems.  Accordingly, we urge continued consideration of the previously submitted co-signed memoranda along with this new submission.

Co-Signed Legal Memoranda:

2019 Developments

On January 15, ALI members submitted a Memorandum about Council Draft No. 8 (CD8) that stated:

CD8 does not well reflect the repeated admonitions of the Membership at each Annual Meeting reviewing Discussion Drafts and Tentative Drafts to guard against overcriminalization. If there is any area of political consensus in the United States today, it is the agreement across the political spectrum that our nation incarcerates too many for too long with
too many life damaging collateral consequences after release from prison and ALI should not contribute to further overcriminalization.
While CD8 does include some improvements urged by the Advisers and MCG, CD8 unfortunately introduces new movements toward overcriminalization even beyond PD9. While these are numerous, many fall into two categories:
1) lowering of the mens rea standard compared to previous drafts and
2) creation or expansion of inappropriate per se crimes.
Co-Signed Legal Memorandum:
American Bar Association Resolution 114: A ‘New Paradigm’ for Sexual Behavior

Repeatedly rebuffed by the ALI membership, affirmative consent proponents decided on a new approach: bring their affirmative consent proposal to the American Bar Association annual meeting, held in San Francisco. Resolution 114 stated:

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases 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, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

On August 8, about 100 ALI members sent a letter to ABA President Robert Carlson, charging the Resolution “is based on bad history and bad science.” In the face of growing opposition, the resolution was revised before the vote, changing it to state that nothing in the resolution “changes the constitutionally guaranteed presumption of innocence, or the burden of proof.”

On August 12, the House of Delegates took up the matter. Neal Sonnett, a member of the Criminal Justice Section, made a detailed statement explaining why his Section initially supported, and later unanimously withdrew its support of Resolution 114. This was the key part of his statement:

Now we received – and I think it may have gone to the House – a letter from 100 ALI members. It’s not an ALI letter, but it was signed by 100 ALI members who worked on these issues. And they said — I want to quote from parts of it:

“For reasons that have not been explained to us, the ABA ‘Report’ in support of Resolution 114 reveals no part of this history” – that is, the rejection in 2016. “Instead, the Report cites no ALI materials after 2014, and as a result, is highly misleading.”

“This is very troubling. The ABA should not consider moving forward with an important matter with a ‘Report’ purporting to justify the action that is so obviously deficient. This a matter of the essential integrity of the ABA. A vote based upon the current Report is not defensible because the ‘Report’ absolutely excludes all relevant information about ALI’s actual position while repeatedly claiming support from ALI.”

They said, in short, the report is based on “bad history and bad science,” and they respectfully suggested that it not be passed at this time by the House of Delegates.

After an hour of heated argument, the House of Delegates took a voice vote, but it was too close to call. The Delegates then stood to be counted. In the end, the House of Delegates voted to indefinitely postpone the Resolution, by a vote of 256-165.

Co-Signed Legal Memorandum:

Legal Reviews:

Opposing Organizations:

Resolution 114 was  opposed by a broad range of organizations, including the  National Association of Criminal Defense Lawyers and numerous NACDL chapters:

Other organizations opposing Resolution 114 included:

Press Releases:


2020 Developments

The May Annual Meeting was cancelled as a result of the COVID pandemic. At the November Model Penal Code Project Meeting, held via Zoom, the primary discussion related to offenses against children and sex offender registries. Drafts are being prepared for further consideration.

2021 Developments

The Annual Meeting was held in June 7-8 via Zoom call. Long-debated revisions to the Model Penal Code’s sex crimes provisions received final approval from the ALI membership. These revisions include the qualifier that “lack of physical or verbal resistance may be considered, in the context of all the circumstances, in determining whether the person has consented.” The approved definition of Consent is:

  • “Consent” for purposes of Article 213 means a person’s willingness to engage in a specific act of sexual penetration, oral sex, or sexual contact.
  • Consent may be express or it may be inferred from behavior— both action and inaction—in the context of all the circumstances.
  • Neither verbal nor physical resistance is required to establish that consent is lacking, but their absence may be considered, in the context of all the circumstances, in determining the issue of
  • Notwithstanding subsection (2)(e)(ii) of this Section, consent is ineffective when given by a person incompetent to consent or under circumstances precluding the free exercise of consent, as provided in Sections 213.1, 213.2, 213.3, 213.4, 213.5, 213.7, 213.8, and 213.9.
  • Consent may be revoked or withdrawn any time before or during the act of sexual penetration, oral sex, or sexual A clear verbal refusal—such as “No,” “Stop,” or “Don’t”—establishes the lack of consent or the revocation or withdrawal of previous consent. Lack of consent or revocation or withdrawal of consent may be overridden by subsequent consent given prior to the act of sexual penetration, oral sex, or sexual contact.

This definition has the effect of rejecting “affirmative consent” in favor of a “willingness” standard.

Co-Signed Memoranda: