(Rebecca Horne, In The Triangle 1973-74, Tate Modern, London pix © Larry Catá Backer 2017)
The great transformation of institutional preconceptions of the borderlands of the performance of relations between individuals,. and the management of sex, only most recently on display during the confirmation hearings of now Justice Kavanaugh, have for years now passionately divided the membership of the American Law Society as it continue to consider the extent to which the membership will be willing to be managed by the vision of the Reporters long charged with the overhaul of the American Law Institutes (ALI) Model Penal Code Sexual Assault and Related Offenses.
Since 2014, members of the ALI have waged an increasingly heated debate over the basic approach to the issues, the principles underlying the drafting of the provisions, the purpose and scope of the ALI in pushing law to particular directions of reform, or in synthesizing contemporary law. The battles have become more pointed as the ALI Reporters have continued to press their vision in the face of substantial opposition (see, e.g., 2016--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; and Sexual Assault at the American Law Institute (ALI)--The Saga Continues With Three Motions to Redirect the Course of Change; 2017--Sexual
Assault at the American Law Institute (ALI)--The ALI and its Model
Penal Code at the Center of the Controversies on the Sexualization of
Criminal Law and the Criminalization of Sexual Rules).
The battles continue at the ALI through 2018-2019. It is not clear that a compromise will be possible, given the essentially irreconcilable basic principles animating both sides.
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. (Sexual Assault at the American Law Institute--Controversy Over the Criminalization of Sexual Contact in the Proposed Revision of the Model Penal Code).
This post includes the last set of critical Comments to Preliminary Draft 9 of the Revisions to the Sexual Assault Provisions of the Model Penal Code recently lodged with the ALI Council, officers and the Reporters. The meeting next May (2019) will be interesting.
To:
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From:
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Date:
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October 9, 2018
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Preliminary Draft No. 9; Revisions to Sexual Assault
Provisions of
Model Penal Code
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Dear Colleagues:
We have received
Preliminary Draft No. 9 (PD9) for the Model Penal Code: Sexual Assault and
Related Offenses project. We respect the
magnitude of the new effort that has gone into preparation of PD9. It is very
extensive (278 pages) and massively altered from prior drafts (the redline is
656 pages). We also were pleased to be
informed a few days after receipt of PD9 that the ALI Council and leadership have
recognized that this project should not be on the Agenda for the 2019 Annual
Meeting in order to allow more time for analysis and revision.
We very much
appreciate that recognition because, regrettably, much work remains to be done
before the content of the Project is prepared to move forward. Given the massive size of PD9 in absolute
terms and given the massive alterations from prior drafts, it is inevitable
that this co-signed memorandum can only provide preliminary analysis of a
limited number of the challenges created by PD9.
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. We begin with
an illustrative example. Section
213.3(1) provides:
(1) Sexual Assault of a Vulnerable Person in
the First Degree. An actor is guilty of Sexual Assault of a Vulnerable Person
in the First Degree if the actor causes another person to engage in or submit
to an act of sexual penetration or oral sex and knows there is a substantial
risk that the other person at the time of the act:
(a) is sleeping, unconscious, or physically unable
to communicate unwillingness; or
(b) lacks substantial capacity to appraise or
control his or her conduct because of a substance that the actor administered
or caused to be administered, without the other person’s knowledge, for the
purpose of impairing the person’s ability to communicate unwillingness…..
(4) If the prosecution proves beyond a
reasonable doubt the elements of the offense described in subsections (1), (2),
or (3), then that proof establishes that the other person did not validly
consent to that act. Even apparent consent is invalid and ineffective when
given by or elicited from a vulnerable person as described in those
subsections.
There are many
things to note in this provision. First
is that this provision creates criminal liability if the defendant “knows there
is a substantial risk” that the other person is incapacitated. The offense is committed even if the other
person in fact is not incapacitated because no element of the crime requires
incapacity. If you know there is a
“substantial risk” the other person has been drinking and might be “unable to
communicate unwillingness,” you are guilty even if the other person is not
actually incapacitated.
Second, the
provision relies upon many defined terms (none of which are capitalized) that
mask its full scope by conflating widely different situations. The offense is committed by either
“penetration” or “oral sex” but “oral sex” is defined as mere superficial oral
“touching” of genitalia without penetration.[1]
The public does not view sexual
penetration and a superficial kiss as being the same thing and worthy of the
same culpability, but they are defined as identical in PD9.
Third, note that 213.3(1)
creates a per se offense that is
committed simply on the finding that the defendant was aware there was a risk
of incapacity. If you know of a
“substantial risk” that your spouse might be sleeping when you begin a genital
kiss, you are guilty even if your spouse actually was wide awake. No criminal intent toward that spouse is
required.
Fourth, the
provision relies on multiple undefined terms that also conflate radically
different things. To waken a “sleeping” spouse with a kiss or other “touching”
is fundamentally different from penetrative sex with a person who is
“unconscious or physically unable to communicate unwillingness” yet 213.3
treats them as being exactly the same.
Fifth and most disturbingly, this section (like
many others) removes lack of consent as an element of the offense. The Membership in 2016 approved a definition
of “Consent” which includes the possibility that an act initially unwanted can
be approved by “subsequent consent.”
Even if it made sense to criminalize the touching of a sleeping spouse,
that spouse certainly should be able to waken and subsequently consent to
continuing the sexual activity. Under
subsection 4 of 213.3, however, this vote of the membership is overridden and lack
of consent is excluded as an element of the offense or even as an affirmative
defense. At the instant of the sexual
act, the offense is complete and consent is prohibited from consideration
(“Even apparent consent is invalid and ineffective”).
Before further
addressing problems in individual sections, we suggest that one problem may be
in the order of presentation of the sections.
Because the offenses are listed with the most severe coming first, there
are inconsistencies further down the chain of lesser severity offenses causing
inconsistency and confusion about which subtraction of blame justifies
imposition of a lesser penalty.
Analytically, it might be better to build up from the lower level to the
higher and explain what each specific added element contributes to justify a
higher grading. Thus, the draft might
proceed:
Penetration without consent
Penetration without consent and with the use of
force
Penetration without consent and with the use of
deadly force
Given the large
number of defined terms, it also is extremely difficult to understand the
precise meaning of each Black Letter offense because the defined terms are not
capitalized and their defined meanings differ widely from the common
understanding of the words being used (e.g.,
“oral sex”). If specialized meanings are
to be used, we respectfully suggest that defined terms should be marked. While we have heard some say that use of
capitalized terms has not been standard for ALI, times have changed. No one in a commercial contract transaction
would dare to ignore capitalization of defined terms and this project
demonstrates the need for better clarity of meaning in the Black Letter.
We also note that
PD9 contains deviations from the existing MPC.
The Reporters state that their “restyling is not intended to be
substantive, but rather is an effort to clarify or simplify the original
language.” PD9 at 6. A first question is
whether it makes sense to develop a two tier MPC with one set of rules of
construction, culpability standards, standards of proof and defenses for most
crimes and a different set for crimes that have the word “sex” in them. The risk of confusion and misconstruction
seems very great. If the words are being
changed, judges and juries will think that the meaning is being changed and the
Reporters’ brief statement that “restyling is not intended to be substantive”
is not going to avert great argument about the precise substance of the
changes.
Moreover, there is
grave concern that the “restyling” is substantive. Consider just one example. The current MPC says:
A person acts
knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his
conduct or the attendant circumstances,
he is aware that his conduct is of that nature or that such circumstances
exist; and
(ii) if the element involves a result of his
conduct, he is aware that it is practically certain that his conduct will cause
such a result. (emphasis added) (MPC 2.02(2)(b)).
While PD9 says:
(i) Knowledge. An actor acts knowingly when the
actor is certain or practically certain that the actor’s conduct is of the
described nature; when the actor is aware that an attendant circumstance exists; or when the actor is certain or practically certain that the
actor’s conduct will cause a described result—even if that result was not the
actor’s conscious object. (emphasis added) (PD9 213.0(4)(b)(ii)).
Under the current
MPC, an actor must be aware of the “circumstances” (plural). Under PD9, the actor need only be aware of
any singular (“an”) “attendant circumstance.”
Under the current MPC, “knowingly” requires establishing both of clauses
(i) “and” (ii), a conjunctive requirement.
Under PD9, the prongs of “knowingly” are stated as “or” which is
disjunctive rather than conjunctive.
Other differences in these terms and in other terms will be identified
as PD9 is more closely examined (e.g.,
PD9 213.0(1), (4) and (5) do not appear to fully comport with MPC 1.12, 2.02
and 2.03), but it simply is not possible to say that the “restyling” is not
“substantive.”
At this point, only
three definitions have been approved by the Membership. With respect to those, the issue is not the
definition but how the definition is used or not used. As noted above, “oral sex” is defined as mere
superficial contact with no penetration and may even include contact through
clothing (see note 1 above). Nevertheless, the Black Letter offenses use
this term as being criminal in every way as severe and exactly the same as
penetration. This is a huge increase
beyond current levels of criminalization.
At the other end of
the spectrum, the Reporters make Herculean efforts to avoid use of the Member
approved definition of “consent,” even going to repeated lengths to say that lack
of consent is an implicit part of some other element of the crime and need not
be explicitly named as an element (e.g.,
phrasings to the effect that the defendant “caused” the sex to occur). We respectfully suggest that the drafting of
proposed legislation, especially criminal legislation, needs to be absolutely
clear about identifying all elements of the crime. Elements of crimes should not be implicit or
in any way held from visibility inside of something else. The proper way to define the crime is to
specify that lack of consent is a formal element of each crime and to thereafter
explain that consent can be invalidated in various ways.
The remaining
definitions proposed in PD9 are problematic, vague or unduly expansive for
various reasons. For example, “physical
force” includes anything that
“significantly impedes a person’s ability to move freely” which can include a hug. “Deadly weapon” includes anything known to be “capable of causing serious bodily injury” which can include alcohol. The heavy drinker and that drinker’s sexual companion both know alcohol’s capacity for “causing serious bodily injury” in many ways ranging from liver damage to drunk driving. The definition of “sexual contact” is unusually expansive (e.g., by adding “for the purpose” of undefined “sexual abuse”) and other definitions require detailed attention inside the context of their usage in the Black Letter offenses,
“significantly impedes a person’s ability to move freely” which can include a hug. “Deadly weapon” includes anything known to be “capable of causing serious bodily injury” which can include alcohol. The heavy drinker and that drinker’s sexual companion both know alcohol’s capacity for “causing serious bodily injury” in many ways ranging from liver damage to drunk driving. The definition of “sexual contact” is unusually expansive (e.g., by adding “for the purpose” of undefined “sexual abuse”) and other definitions require detailed attention inside the context of their usage in the Black Letter offenses,
Consider the
problems of overly expansive definitions combined with the failure to consider
lack of consent as an explicit element of the offense. Assume that a wife is frustrated by the lack
of intimacy in her marriage. They
quarrel. She slaps his face. He is
startled and aroused by her passion.
They have sex. She is guilty of
Sexual Assault in the Third Degree under 213.2 which states:
(1) Sexual Assault in the Third Degree. An actor is guilty of
Sexual Assault in the Third Degree if the actor causes another person to engage
in or submit to an act of sexual penetration or oral sex:
(a) by knowingly or recklessly using or explicitly
or implicitly threatening to use physical force or restraint against that
person or anyone else; and
(b) the actor knows there is a substantial risk
that the other person engaged in or submitted to the act of sexual penetration
or oral sex because of the actor’s use or threat of physical force or
restraint.
Sexual Assault in the
Third Degree is a felony of the third degree [10-year maximum].
(2) If the prosecution proves beyond a reasonable doubt that the
other person engaged in or submitted to the act of sexual penetration or oral
sex because of the actor’s use or threat of physical force or restraint, then
that proof establishes that the other person did not validly consent to that
act. Even apparent consent is invalid and ineffective when elicited through the
impermissible means described in subsection (1). If applicable, the actor may
raise an affirmative defense of Permission to Use Force according to the terms
of Section 213.10.
She is guilty
because she used physical force (a slap is explicitly defined as constituting
physical force; PD9 Section 213.0(6)(e)(i)).
She knew she was using force. She
knew there was a “substantial risk” since the slap originated in her anger over
the lack of intimacy during the argument. She “caused” the sex to occur. Note that his consent is never
considered. Indeed, his consent is
explicitly removed from consideration because “Even apparent consent is invalid
and ineffective when elicited through the impermissible means.”
Her only hope is
that she can invoke the so-called “BDSM” defense of Section 213.10. In other words, she has to show prior
affirmative consent which now reappears in new guise in PD9 after repeated
rejection.
The discussion at the outset noted the numerous
problems in 213.3(1), the most stunning of which is that the person need not be
actually incapacitated if the defendant knew of a “substantial risk” that the
other person could be in some way incapacitated. Actual incapacitation is not an element of
the offense and the provision creates a per
se crime that treats competent people as if they were incompetent. All of
the problems in 213.3(1) also recur in other offenses. For example, Section 213.3(2) provides:
(2) Sexual Assault of a Vulnerable Person in the Second Degree. An
actor is guilty of Sexual Assault of a Vulnerable Person in the Second Degree
if the actor causes another person to engage in or submit to an act of sexual
penetration or oral sex, and knows
(a) there is a substantial risk that the other
person has an intellectual, developmental, or mental disability or a mental
illness that renders the person substantially incapable of appraising the
nature of the sexual activity involved or understanding the right to give or
withhold consent in sexual encounters, and the actor has no equivalent
disability; or
(b) there is a substantial risk that the other
person is passing in and out of consciousness, vomiting, or lacking the ability
to communicate unwillingness at the time of the act.
Sexual Assault of a
Vulnerable Person in the Second Degree is a felony of the third degree…..
(4) If the prosecution proves beyond a
reasonable doubt the elements of the offense described in subsections (1), (2),
or (3), then that proof establishes that the other person did not validly
consent to that act. Even apparent consent is invalid and ineffective when
given by or elicited from a vulnerable person as described in those
subsections.
Section 213.3(2)
does not require that the other person actually have a mental disability or any
other incapacity to consent. The
defendant is guilty because she knew there was a substantial risk of a
disqualifying disability in her date who self-identified as “on the autistic
scale.” His actual consent is
disregarded because “Even apparent consent is invalid or ineffective.” Again, PD9 has vastly expanded per se crimes, this time going so far as
to impose incapacity upon a person who lawfully could (and did) consent.
This provision also
adds great risk to sexual relations among spouses in their later years when
there quite commonly exists a “substantial risk” of some sort of incapacity whether
due to physical or mental decline. If
the nursing home director alleges that Mr. Smith was not competent, Mrs. Smith
is guilty if she knew of a substantial risk that Mr. Smith could be
incompetent. Actual incompetence never
needs to be proved.
Again, all of the
problems stated above regarding 213.3(1) reemerge in 213.3(3) with a possibly
more bizarre twist. 213.3(3) provides:
(3) Sexual Assault of a Vulnerable Person in
the Third Degree. An actor is guilty of Sexual Assault of a Vulnerable Person in
the Third Degree if the actor, who did not have a consensual sexually intimate
relationship with the other person at the time that the restriction on that
person’s liberty began, causes that person to engage in or submit to an act of
sexual penetration or oral sex and knows there is a substantial risk that the
other person is:
(a) detained in a prison, hospital, or other
custodial environment in which the actor holds a position of authority; or
(b) in custody, on probation, on parole, or in a
pretrial diversion program, treatment program, or any other status involving
state-imposed restrictions on liberty, and the actor holds or purports to hold
any position of authority or supervision with respect to that person’s status
or compliance with those restrictions. Sexual Assault of a Vulnerable Person in
the Third Degree is a felony of the fourth degree.
(4) If the prosecution proves beyond a
reasonable doubt the elements of the offense described in subsections (1), (2),
or (3), then that proof establishes that the other person did not validly
consent to that act. Even apparent consent is invalid and ineffective when
given by or elicited from a vulnerable person as described in those
subsections.
If the defendant works
in the state’s criminal justice system and knows there is a “substantial risk”
that her date is on probation, she is guilty even if, in fact, he is not on
probation. Like all of the other
provisions, this provision imposes a per
se incapacity to consent in situations where the person absolutely did have
capacity to consent. Still, the provision insists, “Even apparent consent is
invalid and ineffective.”
Section 213.4
continues the previously noted problems and adds still more. Section 213.4 provides:
(1) Sexual Assault by Extortion. An actor is
guilty of Sexual Assault by Extortion if the actor causes another person to
engage in or submit to an act of sexual penetration or oral sex and knows there
is a substantial risk that the other person engaged in or submitted to the act
because the actor explicitly or implicitly threatened:
(a) to
accuse that person or anyone else of a criminal offense or of a failure to
comply with immigration regulations; or
(b) to
take or withhold action as an official, or cause an official to take or
withhold action; or
(c) anything that would cause submission to or
engagement in such act by an individual of ordinary resolution in that person’s
situation under all the circumstances as that person believes them to be.
Sexual Assault by
Extortion is a felony of the third degree [10-year maximum].
(2) If the prosecution proves beyond a
reasonable doubt that the other person engaged in or submitted to the act
because the actor explicitly or implicitly threatened any of the actions
enumerated in subsection (1), then that proof establishes that the other person
did not validly consent to that act. Even apparent consent is invalid and
ineffective when elicited through extortion as described in that subsection. If
applicable, the actor may raise an affirmative defense of Permission to Use
Force according to the terms of Section 213.10.
Again, there is no
requirement that the defendant overcame a lack of consent by actual or
threatened extortion. There is no
requirement that extortion was the cause of the sex. The defendant is guilty if she was aware of a
“substantial risk” that extortion could be the cause of the sex. If she thought he might fear being turned in
for Criminal Non-Support after she complained about the late alimony check, she
is guilty even though their actual sex was merely an attempt to explore the
possibility of reconciliation. The
offense does not require the “extortion” to have been the cause of the
sex. It merely requires the defendant to
be aware that it might be risky to have sex with this person who could turn
against her.
Subsection (c) adds
delusion to the risks of sex. If the
defendant knows that her partner is sometimes “off his meds,” she is at risk of
an accusation of extortion from the other person who delusionally believes
extortion occurred “under all of the circumstances as that person believes them
to be.” Under this provision, the jury
can agree that the accusation was nuts but “extortion” occurred “under all of
the circumstances as that person believes them to be.”
And again, consent
is scrubbed out of the elements of the offense. If she believed in good faith that he
consented, she still remains guilty because, “Even apparent consent is invalid
and ineffective.”
Section 213.5 also overcriminalizes. Section 213.5 provides:
(1) An
actor is guilty of Sexual Assault by Exploitation if the actor causes another
person to engage in or submit to an act of sexual penetration or oral sex and
the actor:
(a) knowingly
misrepresented that the act has diagnostic, curative, or preventive medical
properties; or
(b) knowingly led the other person to believe
falsely that the actor is someone else who is personally known to that person;
or
(c) knows that the other person is wholly or partly
undressed, or in the process of undressing, for the purpose of receiving
nonsexual professional or commercial services from the actor and has not given
the actor explicit prior permission to engage in that act.
Sexual Assault by Exploitation
is a felony of the fourth degree [five-year maximum].
(2) If the prosecution proves beyond a
reasonable doubt that the actor engaged in any of the exploitative conduct in
subsection (1), then that proof establishes that the other person did not
validly consent to that act. Even apparent consent is invalid and ineffective
when elicited through exploitation as described in that subsection
As written, the
defendant is guilty under Section 213.5(1)(a) if she “causes” the other person
to have sex even if the knowing misrepresentation was not at all a part of the
cause of the sex. The section creates a
crime if the defendant lies and has sex even if the lie was just a joke between
the two people that did not cause the sex.
The same defect is in subsection (c) which does not require that the sex
be caused by the undressing. It just
says the defendant caused sex while the other person was undressed. Note also that “explicit prior permission,”
the rejected “prior affirmative consent” standard, is expressly imposed
here. And, again, ordinary consent is
prohibited from consideration in all of these per se crimes because, “Even apparent consent is invalid and
ineffective.”
Concerns about 213.6 and 213.7 have been
expressed elsewhere and will not be repeated here in the interest of brevity.
Section 213.9 is
also overbroad in many respects.
Consider just this portion by way of illustration:
(1) Sex
Trafficking. An actor is guilty of Sex Trafficking if the actor knowingly
recruits, entices, transports, transfers, harbors, provides, receives, obtains,
isolates, or maintains by any means a person knowing or recklessly disregarding
the risk:
(i) that
coercion will be used to cause the person to submit to or engage in a
commercial sex act; or
(ii) that the person is less than 18 years of age
and will be caused to submit to or engage in a commercial sex act.
Any person who takes
a runaway into her home or into a shelter in an attempt to assist that runaway
is guilty of “sex trafficking” by “maintaining” that runaway while aware of a
risk that some other person might try to traffic the runaway. The section does not require that the person
doing the “maintaining” have any relationship to the “coercion.”
Finally, Section
213.10, the “BDSM” defense, has been set up as a vehicle for reinstating
“affirmative consent.” As noted above,
section after section of the Black Letter offenses recites the position that
ordinary consent is “invalid and ineffective.” Since ordinary consent is invalid and
ineffective, the defendant is forced into an attempt to establish the
affirmative defense stated in 213.10.
The need to seek shelter in this affirmative defense means that “prior
affirmative consent” has been reinstated as the de facto standard for allegations of sex crimes.
We regret that time
limits prevent a more thorough review of PD9, but we hope these comments are
useful to the process and we reaffirm our appreciation for the decision to not
place this project on the agenda of the 2019 Annual Meeting.
Respectfully submitted
[1]
“Touching” expressly includes touching through clothing (“whether clothed or
unclothed”) in 213 (0)(6)(c). “Touching”
in 213 (0)(6)(b) (“oral sex”) is less clear about whether a kiss through
underwear differs from a kiss without underwear.
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