Sexual Assault at the American Law Institute (ALI)--Intensified Controversy Over the Criminalization of Sexual Contact in the Proposed Revision of the Model Penal Code

(Pix © Larry Catá Backer 2015)

In 2012, the American Law Institute (in which I am a member), agreed to launch a revision of its famous and quite influential Model Penal Code to focus specifically on rising issues of "sexual assault and related offenses." The project It was acknowledged at the time that the issue of the decriminalization of certain conduct around sexual activity "deals with some of the most controversial matters on the current public agenda." (Richard L. Revesz, Director ALI in Forward ALI Model Penal Code: Sexual Assault and Related Offenses (Tent. Draft No. 2 (April 15, 20916). The project has been overseen by its reporter, Stephen J. Schulhofer and its associate reporter, Erin E. Murphy, both of NYU Law School. But it has been highly controversial as I reported last year (see, Sexual Assualt at the American Law Institute--Controversy Over the Criminalization of Sexual Contact in the Proposed Revision of the Model Penal Code).

The controversy is well evidenced by the history of this project before the ALI. In 2013, a draft on procedural and evidentiary principles applicable to the sexual assault provisions (¶ 213 of the Model Penal Code) and on collateral consequences of conviction was presented to ALI for discussion but no vote. For the 2014 ALI meeting, a tentative draft containing substantive material for discussion and an evidentiary section (proposed revision ¶ 213.7) for approval was submitted but no vote was taken. Again, for the 2015 meeting a draft on substantive and evidentiary material was presented for discussion but no vote. For its 2016 meeting, the ALI is asked to consider for approval two key provisions: ¶ 213.0(3) (definition of consent) and ¶ 213.2 (sexual penetration without consent).

Both proposals have produced some significant opposition--both to the specifics, and generally to the approach taken on the spirit of the revisions of Section 213 in its entirety. This post briefly discusses the context in which this highly controversial project is going forward and includes (1) National Association of Criminal Defense Lawyers, Memo Comments on Preliminary Draft No. 6, and (2) a two Memos (dated April 4, 2016 and May 12, 2016), signed by a number of ALI Members summarizing concerns about Draft No. 6 Revisions to the Sexual Assault Provisions of the Model penal Code.

The issue of the nature and scope of the criminalization of sexual activity has become part of a much larger and quite controversial conversation within the United States.  

 The issues raised go to the heart of two great trends in U.S jurisprudence.  The first is the move toward the criminalization of behaviors that society, through the state, seeks to control. The second touches on the value of the use of the criminal law as an instrument of social and cultural change. A subsidiary issue that is related to the use of the criminal law as an agent for cultural change involves the way that customary rules of process fairness are bent to the greater policy goals.There are many who view criminalization and the use of law instrumentally, and especially the criminal law, as a valuable tool for societal progress.  There are many who disagree.  Consider the position of 16 Penn Law faculty members wrote this open letter criticizing aspects of that policy, and of the federal government’s actions. (see, Sexual Assualt at the American Law Institute-

The controversy over sexual assault, both as to its substance and as to the methods used to discipline conduct, exposes tensions in deeply held societal and legal principles (relating to the (1) protection of people from unwanted sexual contact, (2) the preservation of intent as a necessary safeguard in criminal culpability; and (3) the preservation of basic structures of fairness in criminal law). That "conversation has been overtly political, and intended to  This highly political controversy has played out in the education system (using Title IX and state power to regulate educational institutions as an instrument (see e.g., here and  here); and now in the criminal system.  It is clear that the political desire to use the levers of state authority, moral power and cultural norms instrumentally to shape societal consensus about the identification of the range of activity that is treated as sexualized and the appropriate conduct norms when people seek to engage in such activity remains unsated.   

Like the university in the Title IX context, the ALI has become a critical battlefield in the ongoing disagreements about the way deeply held American principles are constructed and applied in society and through law and institutional practice. Last year I reported on efforts by some members of ALI to raise objections to the Sexual Assault project and its direction (see, Sexual Assualt at the American Law Institute--Controversy Over the Criminalization of Sexual Contact in the Proposed Revision of the Model Penal Code). As a result of the discussions aroubnd issues considered since 2012, the Reporters have put forward for approval what may be the key elements to the revisions approach--on consent.   

The key issue for the Reporters is normative, and the need to align the law to what they understand as the necessary normative shift in societal expectations which ought to be reflected in the criminal law. 

Conditioning liability on lack of consent, as endorsed in Section 213.2, is consistent with the trend to recognize sexual assault as an infringement on personal autonomy rather than only as unjustified force or coercion.  Sexual assault occurs not only through physical domination but also through the failure to respect personal autonomy, the right of individuals to control the boundaries of their sexual experience.  The decision to share sexual intimacy with another, whether made spontaneously or with great deliberation, is a core feature of our humanity and musty always be a matter of individual choice. A person who seeks sexual intimacy with another should heed that person's communicated preferences to engage in, refuse, or defer the intimate act of penetration. (ALI Model Penal Code: Sexual Assault and Related Offenses, Tent. Draft. No. 2 (April 15, 2016);  § 213.2 Reporters' Note, p. 16).

To this a number of ALI members have raised objections, also grounded in great principles fo American law and societal norms.  These follow.

__________

 

Date: April 4, 2016

From: Undersigned ALI Members and Advisers
To: ALI Director, Deputy Director, Project Reporters, Council and Members
Subject: Preliminary Draft No. 6; Revisions to Sexual Assault Provisions of Model Penal Code

Dear Colleagues:

            At the Director’s suggestion, we write to summarize concerns about Preliminary Draft No. 6 in light of the March 23, 2016 special meeting of the Advisers and Members Consultative Group.

            We thank the Council for directing the early release of Preliminary Draft No. 6 and for scheduling the March 23 special meeting of the Group for a first discussion of the new draft.  We also appreciate the candid acknowledgement that “Preliminary Draft No. 5 provoked great controversy at the last Annual Meeting, at the October meeting of the Advisers/MCG, and at October’s meeting of the Council.” (Preliminary Draft No. 6 at xi).  Finally, we are pleased to see that there are stated intentions to reject the “affirmative consent” standard. Id. at xi and 1.

            We write because of concerns that the stated intentions have not been achieved and because of continuing fundamental concerns about the Reporters’ approach and intended expansion of the criminalization of sexual behavior.  Because only § 213.2 is under current review, we do not address the increased criminalization of sexual behavior at the misdemeanor level.  But it is unambiguously clear that Preliminary Draft No. 6 will sharply increase the criminalization of sexual behavior at the felony level.  Even as compared to earlier drafts, Preliminary Draft No. 6 moves more sexual behavior to the felony level.  For example, as noted at Preliminary Draft No. 6, page xii, behavior treated as a misdemeanor in earlier drafts is now treated as a felony.  The combined expansions of criminal coverage and the heightened severity of punishments are matters of grave concern that call for a serious rethinking of this project.

            As noted repeatedly in this project, there is broad consensus that the States have criminalized too much behavior and have incarcerated too many people.  Hardly a week goes by without reports of new developments to scale back the problems of overcriminalization, overincarceration, and post-incarceration disablements.  For example, just three days ago the Washington Post carried an extensive examination of the post-release, life-long difficulties faced by the 23 million felons who have already completed their prison sentences:

If America’s non-institutionalized felon population today were a state, it would be the third largest in the country — about the same size as Florida, and larger than New York.  The adult population of this “state” would be the country’s second largest — nearly tied with Texas.  And its adult male population would be by far the nation’s biggest — at least 5 million ahead of California.  By the same token: If released felons were regarded as a minority, their numbers would well exceed the size of our Asian American population.

https://www.washingtonpost.com/opinions/why-is-the-american-government-ignores-23-million-of-its-citizens/2016/03/31/4da5d682-f428-11e5-a3ce-f06b5ba21f33_story.html

Almost no one, across the political spectrum, today argues for increasing the number of incarcerated and post-incarceration felons, yet the current draft proposes exactly that.  We continue to question the wisdom of this approach.

            The current draft (like earlier drafts) seeks to impose new social norms rather than improve the administration of justice to punish violations of existing norms.  That is a fundamental problem.  While we respect the Reporters’ decades-long commitment to expanded criminalization of sexual behavior, see, e.g., Schulhofer, “Unwanted Sex: The Culture of Intimidation and the Failure of Law,” 1998 (Chapter 12 attached), we respectfully disagree.  In a society that already incarcerates a frightful and disproportionate number of low-income, poorly educated individuals, we do not believe that ALI’s Model Penal Code should be used as a vehicle to impose new social norms and new behavioral standards that are, as shown below, hard to articulate and hard to apply even in discussions among the highly trained professionals making up the ALI membership.

            As to the provisions of Preliminary Draft No. 6, we first note that a mere glance at the redline shows this to be a massive rewrite compared to the prior draft.  We cannot hope to have caught all the matters that need further consideration beyond those we identify here.  The March 2, 2016 early release of Preliminary Draft No. 6, while illuminating, provides far too little time for the Advisers/MCG to fully “beta test” the draft against multiple fact patterns and to identify all of its implications.

            To date, we know of only two external reviews of Preliminary Draft No. 6, both of which are highly critical.  The National Association of Criminal Defense Lawyers (NACDL) submitted comments (attached) concluding that Preliminary Draft No. 6:

•     Dilutes intent requirements (inadequate mens rea standard);

•     Is unduly vague and ambiguous about what constitutes an offense;

•     Encourages shifting the burden of proof of consent to the accused;

•     Fails to give fair warning that common conduct may now be criminal;

•     Imposes new standards of social and sexual mores; and

•     Returns to the “affirmative-consent” standard despite an expressed intention not to do so.

The second external review, by Professor Kevin Cole, opines that:

In some respects, the current draft reverses course on concessions previously made to critics.  In others, the current draft makes changes that appear to respond to concerns but couples them with other changes that undermine the reform.

See 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 1 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2753718, and attached. Professor Cole’s conclusion is not kind:

ALI critics of the sexual assault proposal could not be faulted for feeling as if they are in a game of Whack-a-Mole…. High penalties for sex in the absence of affirmative consent were replaced with misdemeanor penalties, but have now risen to the felony level again…. Critics concerned that commentary favorable to defendants did not match the statutory text saw the text amended to include some of those ideas [Council Draft No. 3], only to see that text disappear in the most recent draft. Bold proclamations of a shift from “affirmative” to “contextual” consent end up, on examination, to have changed very little.

Id at 6, footnotes omitted.

            For now, we need not argue whether each criticism in these reviews is irrefutably and perfectly correct.  The mere fact that reputable reviewers can reach these conclusions at all is enough to show that the draft is worrisome and ambiguous — and not appropriate for consideration and vote by the membership.

            Again, it is not possible to fully review Preliminary Draft No. 6 and offer an exhaustive listing of concerns, but we respectfully suggest a few illustrations.

            “Against the will” is the standard in widest use in the States. It is the standard used by the Reporters in Preliminary Draft No. 5, Section 213.2(1) for a felony offense.  When that standard was eliminated as the standard for felonies in § 213.2 of Council Draft No. 3, many of us joined a cosigned memorandum asserting that “willingness” is a better standard than “agreement.” While there was nominally a shift from “agreement” to “willingness” in Preliminary Draft No. 6, we were disappointed to see how the concept was altered.

            Now — rather than using the well-known standard of “against the will” or clearly explaining why “willingness,” not “agreement,” should be the operative standard — the phrase “communicates willingness” appears for the first time in any draft.  In other words, the alleged victim must not only be willing but must have effectively communicated that willingness.  This is precisely the root of the external reviewers’ conclusion and our conclusion that “communicates willingness” is merely a rebranding of “affirmative consent.”

            The operative phrase “communicates willingness” is also one root of the external reviewers’ concern and our concern about burden-shifting.  If the standard is “communicates willingness,” the starting presumption is that sex is a crime.  The prosecutor need only say, “Ladies and Gentlemen of the Jury, under the State’s definition, it does not matter whether the complainant actually was willing.  It is undisputed that the sex act occurred and there is no evidence in the record that the complainant communicated willingness.  There is no consent if the complainant has not communicated willingness.  You must convict if you find that the defendant recklessly disregarded that absence of consent.”

            Because the prosecution’s case is sufficient to go to the jury upon a bare showing that the sex act has occurred, the defendant effectively has the burden of putting something into evidence to establish “communicated willingness.”  How great that burden will be is unstated by the draft. Whether it is a burden of going forward, a burden of proof, a burden to establish an affirmative defense or something else, the defendant has been burdened to disprove guilt.  As the NACDL argues, at page 9 of its comments, this burden-shifting is an unconstitutional infringement on the presumption of innocence.  It also works to coerce a waiver of Fifth Amendment rights by forcing the defendant to testify in many cases — not because of the prosecution’s proof but because of the absence of proof that willingness was “communicated.”

            Compare the “against the will” standard, in which it is universally understood that the prosecution has the burden of proof.  Although the law has shifted in such ways as not requiring resistance to establish that an act was “against the will,” the “against the will” standard remains well understood and strongly embedded in the law of the States.  The “against the will” standard was used even in earlier drafts of this project, but that standard disappears without trace or analysis in Preliminary Draft No. 6.

            The Reporters assert that “communicates willingness” should be an acceptable new standard because state law is too muddled and divergent to discern any patterns (e.g., “The current state of the law does not lend itself to clear assessment,” id. at 3).  Yet they assiduously avoid discussion of “against the will” as a potential operative standard or as a starting point for analysis.  This is utterly inappropriate under the clear standards set forth in A Handbook for ALI Reporters and Those Who Review Their Work, https://www.ali.org/media/filer_public/08/f2/08f2f7c7-29c7-4de1-8c02-d66f5b05a6bb/ali-style-manual.pdf as published on the ALI website and analyzed in a previous co-signed memorandum dated October 5, 2015 (attached).

            The Handbook states that “in many respects the formulations in these projects do not differ from the Restatements;” that ALI “has avoided involving itself in ‘novel social legislation’”; that “Codifications such as the Uniform Commercial Code, the Model Penal Code, and the Federal Securities Code have built upon, rationalized, and synthesized previous legislation”; that ALI has “proposed modest incremental improvements in the Judicial Code rather than a comprehensive revision”; that other projects have “also come to exemplify this incremental approach to legislation”; and that, by way of example, “tax proposals developed subsequently have also mainly sought to clarify established and widely accepted tax policy.” Id.

            In contrast, Preliminary Draft No. 6 proposes “novel social legislation” by creating an operative phrase that is not known to exist in any state, does not rationalize or synthesize previous legislation, does not propose modest incremental improvements, does not clarify established and widely accepted policy, and declines even to acknowledge the existence of the most widely used standard in the States. We respectfully submit that Preliminary Draft No. 6 fails to meet even the lowest threshold for further consideration.

            Note also that Preliminary Draft No. 6 contains other changes that make it harder for the defendant to establish consent.  Council Draft No. 3, Section 213.0(3) contained the sentence, “Neither verbal nor physical resistance is required to establish lack of consent, but lack of physical or verbal resistance may be considered, together with all other circumstances, in determining whether a person has given consent” (emphasis added).  In other words, both resistance and lack of resistance expressly were to be considered within the totality of the circumstances.  In Preliminary Draft No. 6, however, the highlighted phrase, “but lack of physical or verbal resistance may be considered,” has been deleted, imposing an imbalance in the definition and raising doubt about whether lack of resistance will be evaluated within the totality of the circumstances.  See also attached comments of Abbe Smith and David Rudovsky. Possibly a good defense attorney will argue past the unbalanced definition, but the definition has unquestionably been rendered unbalanced by the alteration.

            In all, the definition of consent has moved toward greater imbalance.  Each elaboration within the definition describes circumstances that negate or revoke consent (“verbal or physical resistance,” “circumstances preventing or constraining resistance,” “behavior communicating unwillingness,” “a verbal expression of unwillingness,” “force, fear, restraint, threat, coercion, or exploitation”), while nothing supports consent or explains under what circumstances a person is safe from criminal accusation.  Although some of the Reporters’ Illustrations claim an intention that the defendant should not be guilty on the stated facts, there is nothing in the black letter that mandates that outcome or allows the defendant to request a directed verdict.  The Illustrations are not part of any statute.  Only the blackletter is enacted, not the Illustrations and not the Commentary.

            Even if the proposal were not otherwise so grievously flawed, we are also concerned that all the conduct covered by § 213.2 is classified as a felony.  From a fleeting penetration, “however slight,” with a tip of a feather during a tickle to prolonged abuse that barely avoids the aggravating circumstances stated in § 213.1, all offenses are felonies in § 213.2.  This section contains a stunningly wide range of behaviors with radically different social expectations under current norms.  When one adviser at the March 23 meeting noted the number of suicides among his accused clients, another was unconcerned, saying that the differences in the severity of the offenses would be handled during sentencing.  With all due respect, that is not a sufficient answer.  All of the offenses in § 213.2 are denominated as five-year imprisonment felonies and would be registrable offenses with lifetime consequences in most states.  Although the Reporters do not recommend classifying the offenses in§ 213.2 as registrable offenses, they would be such under the laws of many states, and ALI cannot assume that those laws will be ameliorated.

            While we understand and have concern for the humanity of complainants, we need also to understand the humanity of defendants.  This draft is very broad in treating sexual behavior as felonious.  It will destroy lives, and we have a responsibility to consider all the lives that will be affected — lives of both complainants and defendants. Any product of ALI should be much more discerning and much less a one-size bludgeon.

            Finally, we note an awkward element of sexism that permeates the draft.  Male and female are not equal in the eyes of the Reporters.  Consider just one example.  During petting, his fingernail tip, “however slight,” momentarily penetrates the vulva while her full two hands firmly and persistently grip his penis and scrotum.  He is at risk of a conviction under § 213.2 if she did not consent.  She is not at risk under § 213.2 because his genitals are not equally protected under the draft’s supposition of the male as active and the female as inactive.

            Regrettably, much more could be said about Preliminary Draft No. 6, but as noted, there is not enough time for a full analysis or for the “beta testing” under multiple fact settings that is needed before any proposal moves forward.

            Much effort has gone into this project but it has been infected from the outset by fundamental flaws that keep reappearing in different guises, draft after draft, as in Professor Cole’s colorful “Whack-a-Mole” description.  The emergence of “communicates willingness” in a draft that purports to reject “affirmative consent” only confirms the negative assessments of the project and makes it necessary to assert the need for this project to be suspended.

            We thank the Council for instructing the Reporters to make Preliminary Draft No. 6 available earlier than normal and thank the Council for scheduling the March 23 special meeting of the Advisers and Members Consultative Group.  We hope that our efforts have been helpful, and we will remain engaged in service to ALI.

                                                                                    Respectfully submitted,

Thomas R. Newman
ALI Life Member
New York, NY

J. David Kirkland, Jr.
Houston, TX

Hon. Bridget Mary McCormack
Justice
Michigan Supreme Court
Lansing, MI

William Hodes
Professor Emeritus of Law
Indiana University
Lady Lake, FL

Ronald Henry
Washington, DC

Virginia E. Hench
Professor (Retired)
W.S. Richardson School of Law
University of Hawai`i - Manoa
Honolulu, HI

Ronald J. Allen
John Henry Wigmore Professor of Law
Northwestern University
Chicago, IL

John L. Warden
ALI Life member
New York, NY

Joseph Bankoff
Retired, King & Spalding Partner
Chair, Sam Nunn School of International Affairs, Georgia Institute of Technology
Atlanta, GA

David L. Shapiro
William Nelson Cromwell
Professor of Law, emeritus
Harvard University School of Law
Cambridge, MA

Nancy Gertner
U.S. District Judge, D.Ma. (Ret.)
Senior Lecturer
Harvard University School of Law
Cambridge, MA

Herbert L. Fenster
ALI Life Member
Covington & Burling LLP
Washington, DC

Patrick Daugherty
Partner
Foley & Lardner, LLP
Chicago, IL

Ira P. Robbins
Bernard T. Welsh Scholar and
Professor of Law
American University,
Washington College of Law
Washington, DC

Victor A. Vilaplana
Of Counsel
Foley and Lardner, LLP
San Diego, CA

Arthur B. Spitzer
Washington, DC

David Aronofsky
Retired General Counsel and
Law Faculty Member
The University of Montana
Austin, TX

C. Allen Foster
Washington, DC

James Weinstein
Amelia D. Lewis Professor of
Constitutional Law
Sandra Day O'Connor College of Law
Arizona State University
Tempe, AZ

Hon. Anne Gardner
Justice, Second Court of Appeals
Fort Worth, TX

Stephen L. Tatum Sr.
Partner
Cantey Hanger L.L.P.
Fort Worth, TX

Noel Fidel
ALI Life Member
Retired Judge, Arizona Court of Appeals
Law Office of Noel Fidel
Phoenix, AZ

Neal Millard
Partner
Musick, Peeler & Garrett LLP
Los Angeles, CA

John S. Beckerman
Moorestown, NJ

Eric M. Freedman
Siggi B. Wilzig Distinguished Professor of Constitutional Rights
Hofstra University School of Law
Hempstead, NY

Eugene R. Fidell
Senior Research Scholar in Law and
Florence Rogatz Visiting Lecturer in Law
Yale Law School
New Haven, CT

Kathryn M. Kase
Houston, TX

Michael D. Zimmerman
ALI Life Member
Partner, Zimmerman Jones Booher
Chief Justice, Utah Supreme Court (Ret.)
Salt Lake City, UT

Theodore O. Rogers Jr.
New York, NY

Ellen S. Podgor
Gary R. Trombley Family White-Collar Crime Research Professor
Stetson University College of Law
Gulfport, FL

Michael Cooper
New York, NY

Paul D. Carrington
Harry R. Chadwick, Sr.
Professor Emeritus of Law
Duke University School of Law
Durham, NC

David Patton
New York, NY

Jon M. Sands
Phoenix, AZ

Dean A. Strang
StrangBradley, LLC
Madison, WI

Roger S. Clark
Board of Governors Professor
Rutgers School of Law
Camden, NJ

Richard H. Klapper
New York, NY

Frank W. Elliot
ALI Life Member
Professor of Law
Texas A&M University
Fort Worth, TX

Joan G. Wexler
ALI Life Member
Dean and Professor of Law Emerita
Brooklyn Law School
Brooklyn, NY

Brian D. Shannon
Paul Whitfield Horn Professor
Texas Tech University School of Law
Lubbock, TX

Bryan A. Garner
Distinguished Research Professor of Law
Southern Methodist University
Dallas, TX

Ronald D. Rotunda
ALI Life Member
The Doy and Dee Henley Chair and
Distinguished Professor of Jurisprudence
Chapman University, Fowler School of Law
Orange, CA

George C. Christie
James B. Duke Professor Emeritus of Law
Duke University School of Law
Durham, NC

Richard Shepro
Chicago, IL

Richard W. Painter
S. Walter Richey Professor of
Corporate Law
University of Minnesota
Minneapolis, MN

Joan Steinman
ALI Life Member
Distinguished Professor of Law
Chicago-Kent College of Law
Chicago, IL

W. Amon Burton
ALI Life Member
Austin, TX

Dianne Bennett
Retired, Managing Partner
Hodgson Russ LLP
Buffalo, NY

William Leahy
Director
Office of Indigent Legal Services
Albany, NY

John M. Burkoff
Professor
University of Pittsburgh School of Law
Pittsburgh, PA

Robert M. Berger
Retired Partner, Mayer Brown LLP
Senior Counsel, Krasnow Saunders Kaplan & Beninati LLP
Lecturer, University of Chicago Law School
Chicago, IL

Tyler A. Baker
ALI Life Member
Carmel Valley, CA

A.N. Field
New York, NY

Marshall Breger
Professor of Law
Columbus School of Law
Catholic University of America
Washington, DC

Mark J. Loewenstein
ALI Life Member
Monfort Professor of Commercial Law
University of Colorado
Boulder, CO

Robert J. Cottrol
Harold Paul Green Research
Professor of Law,
The George Washington University
Law School
Washington, DC

Kate Stith
Lafayette S. Foster Professor of Law
Yale Law School
New Haven, CT

Stephen Lee Saltonstall
ALI Life Member
Tucson, AZ

Mary Massaron
Shareholder and Appellate Practice Group Leader
Plunkett Cooney, PC
Bloomfield Hills, MI

Ralph Jacobs
Philadelphia, PA

Robert A. Creamer
Cambridge, MA

John G. Crabtree
Crabtree & Auslander
Key Biscayne, FL

John O. Haley
William R. Orthwein Distinguished Professor of Law Emeritus Washington University in St. Louis
St. Louis, MO

John H. Cayce, Jr.
Chief Justice, Texas Court of Appeals, Second District (Retired)
Partner, Kelly Hart LLP
Fort Worth, TX

Vivian Grosswald Curran
Distinguished Faculty Scholar
Professor of Law
University of Pittsburgh
Pittsburgh, PA

A. Douglas Melamed
ALI Life Member
Professor of the Practice of Law
Stanford Law School
Stanford, CA

William S. Brewbaker III
Rose Professor of Law
University of Alabama Law School
Tuscaloosa, AL

James B. Craven III
ALI Life Member
Durham, NC

James E. Felman
Partner
Kynes, Markman, & Felman
Tampa, FL

Andrew D. Leipold
Edwin M. Adams Professor
University of Illinois College of Law
Champaign, IL

Christopher B. Mueller
ALI Life Member
Henry S. Lindsley Professor of Law
University of Colorado
Boulder, CO

Andrew Frey
New York, NY

Reginald Leaman Robinson
Professor of Law
Howard University School of Law
Washington, DC

Hon. Thomas Waterman
Justice, Iowa Supreme Court
Des Moines, IA

John A. Humbach
White Plains, NY

Terry Calvani
Nashville, TN

Margaret Love
Washington, D.C.

Stephen A. Saltzburg
ALI Life Member
Washington, DC

Kyndra K. Rotunda
Professor of Military & International Law
Chapman University
Orange, CA

Stephen K. Huber
ALI Life Member
Professor Emeritus
University of Houston Law Center
Houston, TX

Nicholas L. Georgakopoulos
Harold R. Woodard Professor of Law
Indiana University, McKinney School of Law
Indianapolis, IN

Ira M. Feinberg
Hogan Lovells US LLP
New York, NY

Charles Fried
Beneficial Professor of Law
Harvard Law School
Cambridge, MA

David W. Maher
Chicago, IL

Bradley Y. Smith
New York, NY

Allison R. Hayward
Cambria, CA

William L. Reynolds
ALI Life Member
Jacob A. France Professor Emeritus
University of Maryland School of Law
Baltimore, MD

William J. Woodward, Jr.
Professor of Law Emeritus
Temple University
Oakland, CA

Hon. Evelyn Keyes
Justice
First Court of Appeals
Houston, TX

L. Song Richardson
Professor of Law
UC Irvine School of Law
Irvine, CA

John F. Olson
Distinguished Visitor from Practice Georgetown Law Center
Partner, Gibson, Dunn & Crutcher, LLP
Washington, DC

Allen Shoenberger
Professor
Loyola Chicago School of Law
Chicago, IL

Joseph D. Garrison
New Haven, CT

Frederic N. Smalkin
Chief United States District Judge, D.Md. (Ret.)
Judge in Residence and Professor of Law, University of Baltimore School of Law
Baltimore, MD

Alan D. Hornstein
Professor Emeritus of Law
Francis King Carey School of Law
University of Maryland

Donna Lee Elm
Tampa, FL

Robert A. Helman
ALI Life and Sustaining Member
Partner, Mayer Brown LLP
Chicago, IL

Thomas C. Arthur
L.Q.C. Lamar Professor
Emory University School of Law
Atlanta, GA

Felicia Sarner
Philadelphia, PA

Glenn S. Koppel
Professor
Western State College of Law
Irvine, CA

Arthur D. Hellman
ALI Life Member
Professor of Law and Sally Ann Semenko Endowed Chair
University of Pittsburgh School of Law
Pittsburgh, PA

Wayne Boyce
ALI Life Member
Boyce & Boyce of Counsel
Newport, AR

George W. Liebmann
ALI Life Member
Liebmann and Shively, P.A.
Baltimore, MD

Margaret P. Mason
LeClairRyan
New Haven, CT

William A. Dreier
ALI Life Member
Presiding Judge, New Jersey Superior Court, Appellate Division (retired)
Bridgewater, NJ

Kenneth G. Dau-Schmidt
Willard and Margaret Carr
Professor of Labor and Employment Law
Indiana University—Bloomington
Bloomington, IN

Elizabeth K. Ainslie
Philadelphia, PA

Laird C. Kirkpatrick
ALI Life Member
Louis Harkey Mayo Research Professor of Law
The George Washington University Law School
Washington, D.C.

Virginia E. Sloan
Washington, D.C.

Gary R. Smith
ALI Life Member
Professor Emeritus of Law
Emory University School of Law
Atlanta, Georgia

D. Michael Risinger
ALI Life Member
John J. Gibbons Professor of Law
Associate Director, Last Resort
Exoneration Project
Seton Hall University School of Law
Newark, NJ

Robert W. Gordon
Professor of Law
Stanford Law School
Stanford, CA

David Ellenhorn
New York, New York

Henry R. Lord
ALI Life Member
Partner Emeritus
DLA Piper LLP (U.S.)
Baltimore, MD

Corinna Barrett Lain
Professor of Law and Associate Dean for
Faculty Development
University of Richmond School of Law
Richmond, VA

Sabrina Safrin
Professor of Law
Rutgers Law School
Newark, NJ

G. Robert Blakely
William J. & Dorothy T. O’Neil Professor
of Law Emeritus
Notre Dame Law School Notre Dame, IN

 __________

To:	ALI Director, Deputy Director, Project Reporters, Council and Members
From:	Undersigned ALI Members and Advisers
Date:	May 12, 2016
Subject:	Tentative Draft No. 2; Revisions to Sexual Assault Provisions of Model Penal Code

Dear Colleagues:

Those of you who attended or heard about last year’s Annual Meeting are aware of the widespread concerns that emerged during the discussion of the draft presented in connection with revisions to the Sexual Assault Provisions of the Model Penal Code.  We begin by expressing our appreciation for the Reporters’ candid acknowledgement of those concerns:

“The treatment of consent and associated offenses in Preliminary Draft No. 5 provoked great controversy at the last Annual Meeting and at the 2015 October meetings of the Advisors/MCG and also the Council.  Many argued that the proposed definition of consent adopted an ideal of “affirmative consent” at the expense of the largely tacit ways that people engage in sexual behavior in the real world.  There was concern expressed that the definition covered behavior that was innocent, and that the criminal law should not dictate sexual mores in this evolving era.”  (Tentative Draft No. 2 at xv)

While these acknowledgements are welcomed, we regret to report that the deficiencies, though somewhat altered, have not been cured.  To avoid repetition, we invite your attention to the deficiencies reported in the April 4, 2016 Co-Signed Memorandum.  Although that Co-Signed Memorandum nominally addressed deficiencies in Preliminary Draft No. 6 (dated March 2, 2016), many of those deficiencies have been rephrased and carried forward into Tentative Draft No. 2 (dated April 15, 2016) where they remain operative.  In this Co-signed Memorandum, we endeavor to further particularize the deficiencies in Tentative Draft No. 2.

The core criticisms of the draft presented at the 2015 Annual Meeting and acknowledged by the Reporters centered on the draft’s expansion of the criminalization of sexual behavior and on the draft’s attempt to “dictate social norms” through the in terrorem effect of criminal liability.  Tentative Draft no. 2 at xv.  A fair first test of Tentative Draft No. 2 is to examine whether the overcriminalization and “dictate social norms” problems in last year’s draft have been cured.  Consider the following hypothetical:

“A” and “B” are walking in a park when B bends at the waist to examine a flower and exposes the waistband of B’s underwear.  Mischievously, A executes a “wedgie” upon B.

“A” is a felon subject to five years imprisonment under Tentative Draft No. 2, Section 213.2 for “Penetration Without Consent.”  How can this be?  To begin, it is essential to understand that Tentative Draft No. 2 is a layered document with interlocking pieces and multiple defined terms.  “Penetration” is a defined term at 213.0(7) that expressly includes any penetration “however slight” of the anus or vulva “by any object” which, of course, is exactly what happens in a “wedgie.”  Since “A” executed the “wedgie” by surprise (again the norm), A “knows or consciously disregards a substantial risk” that B “has not given consent” as required by 213.2 and as defined in 213.0(3) (prior behavior that “communicates the person’s willingness to engage in a specific act of sexual penetration or sexual contact”).

Other extremely common forms of exuberant contact such as “goosing” and, even, “a kick in the butt” also are felonies under Section 213.2.  The Reporters do not provide an estimate of the number or percentage of America’s youth who will become felons under proposed Section 213.2.  Note that last year’s Annual Meeting primarily addressed overcriminalization at the misdemeanor level for such things as handholding without prior consent.  This year, the Reporters have elected to schedule discussion only of felony behavior which means that overcriminalization needs to be an even larger concern because of the magnified consequences.

While it might be argued that the foregoing concerns represent mere anomalies of overcriminalization at the felony level, such is not the case.  Consider Illustrations 1 through 3 on pages 8 and 9 of Tentative Draft No. 2.  In Illustrations 1 and 2, a couple is engaged in “petting” with digital penetration (anus or vulva) under circumstances for which the Reporters state that the Accused is NOT guilty of a violation of Section 213.2.  Illustration 3 then proceeds to state:

“Same facts as Illustration 2, except that when Complainant says “No,” Accused says “Come on, this will feel good,” and continues penetrating [duration is unstated; apparently not relevant to conclusion].  On these facts, a jury could find Accused guilty of sexual penetration without consent.” Id.

In the less than two seconds that it takes to say, “Come on, this will feel good,” Accused has gone from welcomed consort to felon.  Section 213.0(3)(d) (“‘No’… suffices” and trumps the “context of all of the circumstances”).  This hair trigger imposition of felony liability is believed to be unprecedented in American law.  Tentative Draft No. 2 (at 17 and notes 27-31) acknowledges the objections to its approach, but the draft fails to cite even a single jurisdiction that adopts the harshness demanded in this putative model code.  At the meeting of the Advisers and Members Consultative Group on March 23, the lead Reporter was specifically queried about this hair trigger mechanism for creating felons and replied that it precisely reflected his intention.

Please next consider the requirement in 213.0(3) for consent to each “specific act of sexual penetration or sexual contact” in the following hypothetical:

“A” and “B” are engaged in an extended sexual session in which a “specific act” (probe or lick or thrust or whatever) has occurred 100 times.  On the 57th iteration, however, “B” “communicated” to “A” and made known to “A” a momentary failure by “A” to obtain the continuous consent required by 213.0(3) and 213.2 before the parties renewed consent and continued the same acts. 

“A” is a felon under 213.2 because there is no mechanism for ratification and no excusing of the unconsented iteration due to the requirement that consent must be present “before the sexual act occurs.”  213.0(3)(d).  The microscopic analysis of each “specific act” invites troubling comparison to video replay of a contested call at a sporting event.  If the Accused stepped “out of bounds” in any individual freeze frame image from the video replay, the Accused is a felon, not merely a participant in a sporting play whistled to a halt.  The disproportionality between the offense and the punishment in each of the above examples is stark but clearly within the “black letter” of 213.0(3)(d) and 213.2.

Some may still argue that matters of the foregoing types will only rarely be asserted, but such an argument necessarily overlooks the frequency of allegations of sexual impropriety to gain advantage in divorce matters, in child custody matters, in revenge settings, in professional ambition or jealousy settings, and in political campaigns even including the 2016 Presidential campaigns.  Expansive criminal definitions will cause enormous harm even if every single prosecutor in every single county or town universally and always refrains from exploiting the power that is granted by the overcriminalization of sexual behavior.

While we have labored to identify some of the problems embedded in this multi-layered, interlocking framework, we are absolutely sure that we have not found all of the problems since each new reading raises additional concerns.  Note that all of the foregoing matters arise from subsidiary definitions – “however slight” (213.0(7));  hair trigger liability (213.0(3)(d)); and ”specific act” (213.0(3)(a)) – that are not even visible on the face of 213.2.   Surely other snares are embedded in the text that have not yet been discerned in the few weeks since this substantially rewritten draft became available, but what about the text of 213.2 itself?  At the 2015 Annual Meeting and as acknowledged by the Reporters, the Membership expressed wide concern about the draft’s overcriminalization.  At that time, Discussion Draft No. 2, Section 213.2 provided:

Sexual Penetration Without Consent.  An actor is guilty of Sexual Penetration without Consent, a misdemeanor, if the actor knowingly or recklessly engages in an act of sexual penetration with a person who at the time of such act has not given consent to such act. (emphasis added)

Following objections, Section 213.2 was then heavily rewritten in Preliminary Draft No. 5; again heavily rewritten in Council Draft No. 3, again heavily rewritten in Preliminary Draft. No. 6 and again heavily rewritten in Tentative Draft No. 6 which has been submitted for consideration at the 2016 Annual Meeting as follows:

Sexual Penetration Without Consent.  An actor is guilty of Sexual Penetration Without Consent if he or she engages in an act of sexual penetration and knows, or consciously disregards a substantial risk, that the other person has not given consent to that act.  Sexual Penetration Without Consent is a felony in the fourth degree.  (emphasis added)

Section 213.2 was yet again heavily rewritten a few days ago for a “friendly amendment” to read:

Sexual Penetration Without Consent.  An actor is guilty of Sexual Penetration Without Consent if he or she engages in an act of sexual penetration without the consent of the other person, and the actor knows that, or is reckless with respect to whether, the act was without consent.
Sexual Penetration Without Consent is a felony in the fourth degree.  (emphasis added)

After five heavy rewritings, and after acknowledging the Membership’s concerns about overcriminalization, Section 213.2 has circled back almost to the original formulation and is changed in only one substantive respect.  Behavior that was graded as a misdemeanor in 2015 is now graded as a felony in 2016.  It is for this reason that Professor Kevin Cole has written:

ALI critics of the sexual assault proposal could not be faulted for feeling as if they are in a game of Whack-a-Mole….  High penalties for sex in the absence of affirmative consent were replaced with misdemeanor penalties, but have now risen to the felony level again….  Critics concerned that commentary favorable to defendants did not match the statutory text saw the text amended to include some of those ideas [Council Draft No. 3], only to see that text disappear in the most recent draft.  Bold proclamations of a shift from “affirmative” to “contextual” consent end up, on examination, to have changed very little.

See 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,  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2753718, footnotes omitted.

While we respect the Reporters’ decades-long commitment to expanded criminalization of sexual behavior, see, e.g., Stephen J. Schulhofer, Unwanted Sex:  The Culture of Intimidation and the Failure of Law, 1998 (Chapter 12 attached to April 4, 2016 Co-Signed Memorandum on ALI Website), we respectfully disagree.  The current draft (like earlier drafts) seeks to impose new social norms rather than improve the administration of justice to punish violations of existing norms.  That is a fundamental problem. 

To understand how broadly Section 213.2 criminalizes sexual behavior, it is important to understand the layering of the subsidiary definitions used in that section.  The section requires “behavior…. that communicates” willingness for each “specific act” of “penetration, however slight…. by any object or body part” AND for each “direct contact” of mouth or tongue with the anus, penis, or vulva of another person.  Sections 213.0(3) and 213.0(7)(a) and (b).  Put simply, a fleeting kiss in the wrong place is defined as identical to an extended rape as understood in traditional definitions.  While the stated crime is “Penetration Without Consent,” the word “penetration” has become rather a legal fiction because it is defined to include, as a felony, a closed mouth kiss on the surface of the skin of any of the stated areas with absolutely no physical penetration whatsoever. 

Section 213.2 and the underlying definitions embedded in 213.2 have massive problems of overbreadth and overgrading.  Where most states have multiple statutory enactments with careful gradations as the offensiveness and malevolence of the conduct rise, Section 213.2 makes felonies of everything, from a fleeting “however slight” penetration by the tip of a feather during a tickle game or a closed mouth kiss in the wrong place, all the way through to crimes of sustained duration involving highly abusive conduct while treating them all as if they were identically the same.  This vast expansion of felony treatment for sexual behavior does not remotely reflect any existing social norms in the states.

The friendly amendment offered by Professor Ferzan has made an incremental improvement and a planned motion by Margaret Love and others proposes further incremental improvements.  All of those improvements should be adopted for the reasons stated in their supporting statements but our concern is that too many problems remain and need continued work after those improvements.  Additional incremental improvements should be proposed but there is also a fundamental flaw that requires a further step after incremental improvements to the existing draft.  This project has never examined existing law and has never contemplated a structure other than the singular vision that has been pressed in draft after draft despite continuing objections. 

The project began and remains confined within a single pre-conceived analytic framework, a single analytic box.  See, Stephen J. Schulhofer, Unwanted Sex:  The Culture of Intimidation and the Failure of Law, supra.  All of the incremental proposals are limited to seeking the least uncomfortable position within that box but there is no demonstration made or even attempted in Tentative Draft No. 2 to support the idea that ALI must build this particular box.

It is essential to keep in mind the fact that this project is proposed as a Model Code yet it has not examined or built upon the law in the fifty states.  It has simply created a “contextual consent” standard and searched for individual states that have one or more statutes or cases that lend any degree of support to the proposed standard.  As the legal analysis in the statement in support of the Love et al. motion makes clear, there is very little support in the states for the Reporters’ proposed standard.

Most tellingly, the draft provides absolutely no analysis or consideration of alternative approaches such as the “against the will” standard that is the most widely understood and utilized standard in the United States.  “Against the will” was utilized as a standard for some offenses up to and including Preliminary Draft No. 5 but it then disappeared without a trace or explanation.  This is most troubling in what is proposed as a Model Code project. 

ALI’s guiding document, A Handbook for ALI Reporters and Those Who Review Their Work, https://www.ali.org/media/filer_public/08/f2/08f2f7c7-29c7-4de1-8c02-d66f5b05a6bb/ali-style-manual.pdf, as published on the ALI website and analyzed in a previous co-signed memorandum dated April 4, 2016, states that “in many respects the formulations in these projects do not differ from the Restatements”; that the ALI “has avoided involving itself in ‘novel social legislation’”; that “Codifications such as the Uniform Commercial Code, the Model Penal Code, and the Federal Securities Code have built upon, rationalized, and synthesized previous legislation”; that the ALI has “proposed modest incremental improvements in the Judicial Code rather than a comprehensive revision”; that other projects have “also come to exemplify this incremental approach to legislation”; and that, by way of example, “tax proposals developed subsequently have also mainly sought to clarify established and widely accepted tax policy.”  Id.

In contrast, Tentative Draft No. 2 proposes “novel social legislation” by creating an operative phrase that is not known to exist in any state, does not rationalize or synthesize previous legislation, does not propose modest incremental improvements, does not clarify established and widely accepted policy, and declines even to acknowledge the existence of the most widely used standard in the States.  We respectfully submit that Tentative Draft is simply not ready for a vote of the members. 

To begin, please consider the instability of the drafts.  In each iteration, the comparison drafts have shown massive rewriting such that every iteration requires a new examination both to discern whether old problems have been ameliorated and whether new problems have been introduced.  The ALI normally expects a maturation process such that few issues remain and narrow, targeted amendments can be offered for those few issues.  None of that maturation is present in Tentative Draft No. 2.

One of the most odd aspects of Tentative Draft No. 2 is that the Members are being asked to vote on a definition, Section 213.0(3), for which part of the definition being voted upon is itself “reserved.”  (213.0(3)(b)).  There is no rational way to vote on a definition if the definition itself is subject to alteration by future “reserved” content.  A Member might be willing to vote for the definition in its current form but then be shocked by the effect of that vote when the “reserved” content is revealed.  The Member could still try to oppose addition of the “reserved” content but the core of the definition would already be in place.

Tentative Draft No. 2 repeatedly asserts that it has abandoned “affirmative consent,” but it has in reality only acknowledged that it will allow (in some settings) physical behavior as well as verbal behavior to establish “affirmative consent,” now called “contextual consent.”  Even so, verbal behavior is made superior and trumps the “totality of the circumstances” because the draft states that, “‘No,’ ‘Stop,’ or ‘Don’t’ suffices to establish the lack of consent” regardless of what else is going on in the totality of the circumstances.  Section 213.0(3)(d).  Recognizing the weakness of this trump position for verbal behavior, Tentative Draft No. 2 creates an affirmative defense for “rough sex” practitioners who may be allowed to rely on the totality of the circumstances while “vanilla” sex partners are not.  Id. at 3 and Section 213.9.  Tentative Draft No. 2 also acknowledges that even the nominal “No means No” states do not apply it with the rigidity of Section 213.0(d).  Id. at 17 and notes 27-31.   As noted by Professor Cole:

Bold proclamations of a shift from “affirmative” to “contextual” consent end up, on examination, to have changed very little.  (Cole, supra, at 5)

Numerous others, including the NACDL, the Love et al. statement, and the April 4, Co-Signed Memorandum, have expressed concern about how Sections 213.0(3) and 213.2 impact the relative burdens of the prosecutor and defendant.  At a minimum, the downward defining of what constitutes an offense lessens the burden of the prosecution and heightens the burden of the defense.  Indeed, even the phrase “penetration without consent” conjures the phrase “driving without license” (consent of the State).  We may pedantically say that the prosecutor has the burden of proving beyond reasonable doubt that the defendant is “without license,” but in ordinary thinking we are expecting the defendant to produce a license to negate the charge of “driving without license.”  That ordinary thinking will taint and color the expectation for a defendant to produce proof of consent to negate the charge of “penetration without consent.” 

Tentative Draft No. 2 presents absolutely no justification for any alteration in burdens.  Tentative Draft No. 2 identifies no crimes that are not currently within the capacity of fair adjudication by the states.  Every state already has multiple statutes dealing with the various forms of sexual behavior that the state views as blame worthy.  Nothing in Tentative Draft No. 2 indicates that this body of law has been surveyed or that any of the foundational questions have been addressed, much less resolved:

·         What approaches are being utilized in the states?

·         Are there important crimes that current law does not capture?

·         Are there specific flaws in current law that can be ameliorated by a proposal from ALI?

·         What is the impact of the proposed new structure in terms of increased incarceration, overcriminalization, and over-grading of minor infractions?

Tentative Draft No. 2 does not address any of these foundational issues.  Tentative Draft No. 2 does not set out to address the usual questions of law reform through careful identification of specific needs and minimally disruptive amelioration of existing flaws.  Instead, Tentative Draft No. 2 calls for a wholesale discarding of the overwhelming body of existing law and replacement with a standard that has not been able to hold a stable form at any point during this project.  The law has had a history of overcriminalizing sexual behavior.  The 1962 MPC has been rightly hailed for beginning the work of scaling back that overcriminalization.  Much that was once criminal sex – unwed, inter-racial, same sex, use of “sex toys” – is now both legal and constitutionally protected. 

If a certain element of the 1962 MPC has become outdated (e.g., excessive requirements for “resistance”), such matters can be addressed but the Reporters have stated without justification that “the problem calls for an entirely fresh start.  Accordingly, it was judged best to strike the 1962 text and Commentary in their entirety.”  Discussion Draft No. 2 at 25.  Along with striking the entirety of the MPC, the Reporters propose also to strike all of the subsequent 50 years of statutory and case law development in the states except for such snippets as can be found to offer any hint of tolerance for “affirmative consent.”

Indeed, Tentative Draft No. 2 declares that “[t]he current state of the law does not lend itself to clear assessment” (id. at 5) and dismisses all state law (except the few supportive snippets) in less than three pages (id. at 5-7).  Tentative Draft No. 2, at 5, acknowledges that 21 states do not even have a definition of “consent” but then merely moves on, discarding those states without consideration of how they in fact do manage to prosecute sex offenses.  The Love et al. statement further particularizes deficiencies in the research and analytic support for Tentative Draft No. 2. 

The approach taken in Tentative Draft No. 2 has not been successful.  Considering only the one year since the 2015 Annual Meeting, Discussion Draft No. 2 underwent a major rewrite to become Preliminary Draft No. 5, which underwent a major rewrite to become Council Draft No. 3, which underwent a major rewrite to become Preliminary Draft No. 6, which underwent a major rewrite to become Tentative Draft No. 2, which has only been in existence for one month and which has undergone yet another change in the friendly amendment adopted just a few days ago.  No one at the Annual Meeting can claim to have an understanding of what Tentative Draft No. 2 would mean in practical terms if set loose in the states.  This is not the method of deliberative advancement of the law on which the ALI prides itself and upon which the ALI built its reputation.

RECOMMENDATIONS AND MOTIONS:

We recommend adoption of the motion filed by Love et al.

We identify the following individual motions for consideration by the Members and further urge their consideration as friendly amendments by the Reporters:

1.               Tentative Draft No. 2 shall be redesignated to be Discussion Draft No. 3.

2.                  The Reporters are urged to undertake a survey of the existing law in the states to identify current offenses, current elements required for liability, and current grading of offenses.

3.                  The Reporters are urged to undertake serious examination of standards of liability other than “contextual consent” and specifically to give favorable attention to the “against the will” standard.

4.                  Section 213.0(3) is deleted and the standard for liability in 213.2 shall be “against the will.”

5.                  Section 213.0(7) is deleted.

6.                  The word “specific” is deleted from 213.0(3)(a).

7.                  Verbal behavior shall not be elevated above physical behavior in assessing the existence of an alleged offense.

8.                  An alleged gap in consent or authorization may be cured by subsequent behavior of the complainant evidencing the establishment or ratification of consent or authorization.

9.                  The grading of each offense shall be set to be commensurate with the culpability of the least culpable behavior encompassed by that offense.

10.              For each proposed offense or standard of liability not clearly in force in a majority of the states, the Reporters are urged to prepare an impact analysis of the proposed offense or standard.

Respectfully submitted,

Bryan A. Garner
Distinguished Research Professor of Law
Southern Methodist University
Dallas, TX

C. Allen Foster
Washington, DC

Hon. Anne Gardner
Justice, Second Court of Appeals
Fort Worth, TX

Dianne Bennett
Retired, Managing Partner
Hodgson Russ LLP
Buffalo, NY

Marshall Breger
Professor of Law
Columbus School of Law
Catholic University of America
Washington, DC

Joseph Bankoff
Retired, King & Spalding Partner
Chair, Sam Nunn School of International Affairs, Georgia Institute of Technology
Atlanta, GA

A.N. Field
New York, NY

A. Douglas Melamed
ALI Life Member
Professor of the Practice of Law
Stanford Law School
Stanford, CA

Ronald J. Allen
John Henry Wigmore Professor of Law
Northwestern University
Chicago, IL

Ronald Henry

Washington, D.C.

Virginia E. Hench
Professor (Retired)
W.S. Richardson School of Law
University of Hawai`i - Manoa
Honolulu, HI

Stephen Lee Saltonstall
ALI Life Member
Tucson, AZ

Kate Stith

ALI Life Member
Lafayette S. Foster Professor of Law
Yale Law School
New Haven, CT

Arthur B. Spitzer
Washington, DC

Noel Fidel
ALI Life Member
Retired Judge, Arizona Court of Appeals
Law Office of Noel Fidel
Phoenix, AZ

Michael D. Zimmerman
ALI Life Member
Partner, Zimmerman Jones Booher
Chief Justice, Utah Supreme Court (Ret.)
Salt Lake City, UT

John F. Olson
Distinguished Visitor from Practice Georgetown Law Center
Partner, Gibson, Dunn & Crutcher, LLP
Washington, DC

Felicia Sarner
Philadelphia, PA

Jon M. Sands
Phoenix, AZ

Ronald D. Rotunda
ALI Life Member
The Doy and Dee Henley Chair and
Distinguished Professor of Jurisprudence
Chapman University, Fowler School of Law
Orange, CA

Thomas R. Newman
ALI Life Member
New York, NY

D. Michael Risinger
ALI Life Member
John J. Gibbons Professor of Law
Associate Director, Last Resort
Exoneration Project
Seton Hall University School of Law
Newark, NJ

Allison R. Hayward
Cambria, CA

Frederic N. Smalkin
Chief United States District Judge, D.Md. (Ret.)
Judge in Residence and Professor of Law, University of Baltimore School of Law
Baltimore, MD

John S. Beckerman 
Moorestown, NJ

Mark J. Loewenstein
ALI Life Member
Monfort Professor of Commercial Law
University of Colorado
Boulder, CO

Mary Massaron
Shareholder and Appellate Practice Group Leader
Plunkett Cooney, PC
Bloomfield Hills, MI

George W. Liebmann
ALI Life Member
Liebmann and Shively, P.A.
Baltimore, MD

John M. Burkoff
Professor
University of Pittsburgh School of Law
Pittsburgh, PA

William S. Brewbaker III
Rose Professor of Law
University of Alabama Law School
Tuscaloosa, AL

David Ellenhorn
New York, New York

William Hodes
Professor Emeritus of Law
Indiana University
Lady Lake, FL

James E. Felman
Partner
Kynes, Markman, & Felman
Tampa, FL

William Leahy
Director
Office of Indigent Legal Services
Albany, NY

Brian D. Shannon
Paul Whitfield Horn Professor
Texas Tech University School of Law
Lubbock, TX

Christopher B. Mueller
ALI Life Member
Henry S. Lindsley Professor of Law
University of Colorado
Boulder, CO

Hon. Thomas Waterman
Justice, Iowa Supreme Court
Des Moines, IA

Paul D. Carrington
Harry R. Chadwick, Sr.
Professor Emeritus of Law
Duke University School of Law
Durham, NC

Vivian Grosswald Curran
Distinguished Faculty Scholar
Professor of Law
University of Pittsburgh
Pittsburgh, PA

David Patton
New York, NY

Robert M. Berger
Retired Partner, Mayer Brown LLP
Senior Counsel, Krasnow Saunders Kaplan & Beninati LLP
Lecturer, University of Chicago Law School
Chicago, IL

Arthur D. Hellman
ALI Life Member
Professor of Law and Sally Ann Semenko Endowed Chair
University of Pittsburgh School of Law
Pittsburgh, PA

David Aronofsky
Retired General Counsel and
Law Faculty Member
The University of Montana
Austin, TX

Tyler A. Baker
ALI Life Member
Carmel Valley, CA

Richard H. Klapper
New York, NY

Michael Cooper
New York, NY

G. Robert Blakely
William J. & Dorothy T. O’Neil Professor
of Law Emeritus
Notre Dame Law School
Notre Dame, IN

Micalyn S. Harris

Ridgewood, NJ

J. David Kirkland, Jr.
Houston, TX

Hon. Evelyn Keyes
Justice
First Court of Appeals
Houston, TX

Daniel S. Kleinberger

Professor Emeritus, Mitchell Hamline School of Law

Reporter, Uniform Law Conference Drafting Committee on the Uniform Limited Liability Company Protected Series Act

St. Paul, MN

Eugene R. Fidell
Senior Research Scholar in Law and
Florence Rogatz Visiting Lecturer in Law
Yale Law School
New Haven, CT

Theodore H. Frank

Washington, D.C.

Ira P. Robbins
Bernard T. Welsh Scholar and
Professor of Law
American University,
Washington College of Law
Washington, DC

John H. Cayce, Jr. 
Chief Justice, Texas Court of Appeals, Second District (Retired)
Partner, Kelly Hart LLP
Fort Worth, TX

Michael G Goldstein, Esq., JD, LLM

ALI Life Member

Newport Beach, CA

David L. Shapiro
William Nelson Cromwell
Professor of Law, emeritus
Harvard University School of Law
Cambridge, MA

Joan Steinman
ALI Life Member,

Distinguished Professor of Law

Chicago-Kent College of Law
Chicago, IL

Joseph D. Garrison
New Haven, CT

Margaret P. Mason
LeClairRyan
New Haven, CT

James Weinstein
Amelia D. Lewis Professor of
Constitutional Law
Sandra Day O'Connor College of Law
Arizona State University
Tempe, AZ

Robert W. Gordon
Professor of Law
Stanford Law School
Stanford, CA

Ralph Jacobs
Philadelphia, PA

Ann Shalleck

Professor of Law and Carrington Shields Scholar

American University, Washington College of Law

Washington, D.C.

Ellen S. Podgor
Gary R. Trombley Family White-Collar Crime Research Professor
Stetson University College of Law
Gulfport, FL

Katherine S. Spaht

ALI Life Member

Professor Emeritus

LSU Law Center

Baton Rouge, LA

Robert A. Helman
ALI Life and Sustaining Member
Partner, Mayer Brown LLP
Chicago, IL

John G. Crabtree
Crabtree & Auslander
Key Biscayne, FL

Alan D. Hornstein
Professor Emeritus of Law
Francis King Carey School of Law
University of Maryland

New York, NY

Robert W. Hillman

ALI Life Member

Distinguished Professor of Law

University of California, Davis

Davis, CA

Glenn S. Koppel
Professor
Western State College of Law
Irvine, CA

Stephen L. Tatum Sr.
Partner
Cantey Hanger L.L.P.
Fort Worth, TX

Andrew Frey
New York, NY

Herbert L. Fenster
ALI Life Member
Covington & Burling LLP
Washington, DC

Michael Greenberger

ALI Life Member

Law School Professor

University of Maryland Francis King Carey School of Law

Baltimore, MD

Kathryn M. Kase

Houston, TX

Eric M. Freedman
Siggi B. Wilzig Distinguished Professor of Constitutional Rights
Hofstra University School of Law
Hempstead, NY

Edward A. Dauer

ALI Elected Life Member

Dean Emeritus and Professor Emeritus of Law

University of Denver

Denver, CO

Nicholas L. Georgakopoulos
Harold R. Woodard Professor of Law
Indiana University, McKinney School of Law
Indianapolis, IN

James B. Craven III
ALI Life Member
Durham, NC

George C. Christie
James B. Duke Professor Emeritus of Law
Duke University School of Law
Durham, NC

David W. Maher

Chicago, IL

William L. Reynolds
ALI Life Member
Jacob A. France Professor Emeritus
University of Maryland School of Law
Baltimore, MD

Hon. Bridget Mary McCormack
Justice
Michigan Supreme Court
Lansing, MI

Christopher Zampogna

Zampogna. PC

Washington, D.C. 

Joette Katz

Associate Justice CT Supreme Court (Ret.)

Commissioner of the Dept. of Children and Families

Hartford, CT

Philip Allen Lacovara

ALI Life Member

Sanibel, FL

Charles Fried
Beneficial Professor of Law
Harvard Law School
Cambridge, MA

Allen Shoenberger
Professor
Loyola Chicago School of Law
Chicago, IL

Joan G. Wexler
ALI Life Member
Dean and Professor of Law Emerita
Brooklyn Law School
Brooklyn, NY

James Robertson

U.S. District Judge (ret.)

Washington, D.C.

John L. Warden
ALI Life member
New York, NY

Kyndra K. Rotunda
Professor of Military & International Law
Chapman University
Orange, CA

Leonard P. Strickman 

Professor

Founding Dean Emeritus

Florida International University College of Law

Miami, FL

Frank W. Elliot
ALI Life Member
Professor of Law
Texas A&M University
Fort Worth, TX

Richard Blau

Tampa, FL

Nancy Gertner
U.S. District Judge, D.Ma. (Ret.)
Senior Lecturer
Harvard University School of Law
Cambridge, MA

Neal Millard
Partner
Musick, Peeler & Garrett LLP
Los Angeles, CA

Roger S. Clark
Board of Governors Professor
Rutgers School of Law
Camden, NJ

Corinna Barrett Lain
Professor of Law and Associate Dean for
Faculty Development
University of Richmond School of Law
Richmond, VA

Robert J. Cottrol
Harold Paul Green Research
Professor of Law,
The George Washington University
Law School
Washington, DC

Reginald Leaman Robinson
Professor of Law
Howard University School of Law
Washington, DC

Gary R. Smith
ALI Life Member
Professor Emeritus of Law
Emory University School of Law
Atlanta, Georgia

Manning Gilbert Warren lll

ALI Life Member

H. Edward Harter Chair of Commercial Law

Brandeis School of Law

University of Louisville

Louisville, KY

W. Amon Burton
ALI Life Member
Austin, TX

Victor A. Vilaplana
Of Counsel
Foley and Lardner, LLP
San Diego, CA

John A. Humbach
White Plains, NY

Thomas C. Arthur
L.Q.C. Lamar Professor
Emory University School of Law
Atlanta, GA

Stephen K. Huber
ALI Life Member
Professor Emeritus University of Houston Law Center
Houston, TX

Catherine L. Carpenter

Vice Dean and

The Hon. Arleigh M. Woods and William T. Woods Professor of Law

Southwestern Law School

Los Angeles, CA

Kenneth C. Kettering

Short Hills, NJ

Robert A. Creamer
Cambridge, MA

Brian H. Bix

Frederick W. Thomas Professor of Law and Philosophy

University of Minnesota

Minneapolis, MN

Stephen A. Saltzburg
ALI Life Member
Washington, DC

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