ALI Model Penal Code for Sexual Assault
The American Law Institute 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 novel concept of “affirmative consent.”
Following is a summary of the key developments in this controversial project, as well as a listing of the legal reviews, blogs, and editorials:
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 in Washington, D.C. on May 19-21, 2014. Time ran out before the discussion could be concluded, and no vote was taken.
In early 2015, Discussion Draft No. 2 was submitted for discussion at the Annual Meeting held in Washington, D.C. on May 18-20. In response, an eight-page Memorandum dated May 12 highlighted how the proposed Model Penal Code would dramatically worsen the problem of over-criminalization, and called for a “fundamental rethinking” of the document. As of September 30, over 80 ALI members had signed the Memorandum.
On September 5, Preliminary Draft No. 5 was released. In response, over 100 ALI members signed a six-page Memorandum dated October 5, 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.
On October 12, over 50 ALI members co-signed a three-page 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.
In November, the Project Reporters met with their Advisers and the Members Consultative Group and discussed five of eleven anticipated chapters.
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 2016, three memoranda that highlighted continuing concerns with the draft Model Penal Code were circulated:
- January 19, 2016 re: Council Draft No. 3
- April 4, 2016 re: Preliminary Draft No. 6
- May 12, 2016 re: Tentative Draft No. 2
At its 93rd Annual Meeting in Washington, DC on May 17, 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 is 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.
At its January 2017 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 2017. At its 93rd Annual Meeting in Washington, DC, the membership debated proposed definitions. A memorandum 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. Specifically:
- “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.
The memo can be seen HERE.
- 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’
- National Association of Criminal Defense Lawyers: NACDL Comments on Model Penal Code: Sexual Assault and Related Offenses Preliminary Draft No. 6 (March 2, 2016)
- Kevin Cole: Backpedaling in Place: The ALI’s Move from ‘Affirmative’ to ‘Contextual’ Consent
- Kevin Cole: Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, and Other Difficulties of ‘Affirmative Consent’ in the ALI’s Draft Sexual Assault Provisions
Legal Blogs and Editorials:
- Ronald Rotunda: Increased Controversy Over the Future of American Law Institute – June 20
- Cathy Young: The risks of ‘affirmative consent’ – May 19
- Charlotte Hays: Affirmative Consent Takes a Hit – May 19
- Detroit News: Preserve due process in sex assault cases – May 18
- Samantha Harris: American Law Institute Rejects ‘Affirmative Consent’ Standard for Model Penal Code – May 18
- Ashe Schow: ‘A mess’: Law group rejects affirmative consent – May 18
- Bradford Richardson: American Law Institute rejects affirmative consent standard in defining sexual assault – May 17
- Kevin Cole: A promising motion to fix the central problems with the ALI’s sexual assault draft – May 16
- John Fund: When Restating the Law Can Become Empowering the Sex Police – May 15
- Scott Greenfield: When Intent was Written Out of the Model Penal Code – May 15
- Stuart Taylor: Legal Group Weighs Radical Expansion of Sex Crimes – May 14
- Ashe Schow: A Rift at the American Law Institute – May 12
- Kevin Cole: How “No-Means-No” Became “No-Means-Never” in the ALI’s Sexual Assault Draft – May 10
- Kevin Cole: Intoxication and the sources for defining “consent” under the ALI’s draft sexual assault provisions – May 9
- Kevin Cole: Mens Rea and the ALI’s Sexual Assault Draft – May 8
- Kevin Cole: Amending the ALI Sexual Assault Draft: Penalties – May 2
- Mark Meckler: Fifty Shades of Red Tape: When Bureaucrats Regulate Your Sex Life – May 1
- Kevin Cole: Understanding the “Burden of Proof” Objection to the ALI’s Sexual Assault Proposal – April 27
- Ashe Schow: Prepare to have your sex life regulated by government – April 21
- Kevin Cole: ALI Members Express Concerns About “Affirmative Consent” Sexual Assault Draft – October 13
- Megan McArdle: ‘Affirmative Consent’ Will Make Rape Laws Worse – June 30
- Elizabeth Nolan Brown: The Future of Sex Is Terrifying – June 30
- Mary Wheeler: Criminal Sexual Assault: No Means NO Burden Shifting – June 28
- Judith Shulevitz: Regulating Sex – June 27
- Ashe Schow: Has the Federal Government Ever Had Sex? – June 15
- Scott Greenfield: American Law Institute’s “Stunning Expansion of Criminalization” – May 18
- Law at the End of the Day: Sexual Assualt at the American Law Institute–Controversy Over the Criminalization of Sexual Contact in the Proposed Revision of the Model Penal Code – May 14
- Hans Bader: ‘Affirmative Consent’ Movement Seeks to Control Your Private Life – December 28
- Scott Greenfield: As The Definitions of Rape Slide Down The Slippery Slope – October 13
- Nora Caplan-Bricker: There’s a Legal War Over the Definition of Rape – May 6