Law at the End of the Day: Sexual Assault at the American Law Institute (ALI)--The Saga Continues With Three Motions to Redirect the Course of Change

(Pix © Larry Catá Backer 2015)

I have been following the extraordinary controversy about the proposed changes rt the criminal law of Sexual Assault in the American Law Institute's (ALI's) Model Penal Code (e.g. here). The proposals are important, not only for what they tell us about the use use of law to effect politico-cultural ends, but also have significant implications for the aggressive efforts by the Federal Government to us its influence and regulatory authority to change the cultures of noncriminal sexual assault governance frameworks within American universities.

At its current meeting, the Reporters for the ALI's Sexual Assault project, Stephen J. Schulhofer and its associate reporter, Erin E. Murphy, both of NYU Law School, intend to offer the first of several changes for approval by the body. The ALI is asked to consider for approval two key provisions: ¶ 213.0(3) (definition of consent) and ¶ 213.2 (sexual penetration without consent). This has generated some opposition (discussed here).

This post includes some of the proposals that opponents have planned to introduce at the debates about adoption of the proposed revisions at the ALI meeting in May. The proposed revisions reveal much about the state of disagreement over both sexual assault and its criminalization in the United States. They include: (1) Motion to Restore Grading for Sexual Penetration Without Consent; (2) Motion Concerning § 213.0(3) and § 213.2, Tent. Draft #2, Model Penal Code; Sexual Assault; and (3) Motion to Change "Willingness" to "Assent" in the Definition of Consent.

(1) Motion to Restore Grading for Sexual Penetration Without Consent