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| Pix Credit HERE; video may be accessed HERE |
Now well over a generation ago, Michel Foucault famously noted that the regulation was about virtually anything but intimate relations. That is, that intimate relations were a gateway--the efforts to define, observe, control, interdict, and manage these interactions among humans (we do not even begin to think about the management of such relations beyond that of human to human interaction), has tended to serve as a powerful medium around which societal collectives could not just constitute themselves, but provide a mechanism for the internalization of that constitution at an intensely granular level. Speaking marriage he noted in ways that have application in the contemporary world with respect to intimate relations more generally, and assault in particular: "they show not only that this role was a governmental function of training, education, and guidance, but that it was involved in a complex interplay of affective reciprocity and reciprocal dependence." (Michel Foucault, The Care of the Self, 3 The History of Sexuality (NY Random House, 10988), p. 80).
I have been following one of the manifestations of this reality (that is of this activity meant to recognize and shape reality in this context), in the contemporary efforts of the American Law Institute to reshape the meaning of intimate human interactions through the construction of its criminal law (see here, here, here, here, here, here). Again the effort manifests in the criminal law but that is itself merely a means of declaring and vindicating a very specific view of the reality of human interaction--of the constitution of its participants--and of the societal expectations in that context. That effort focused on the construction of a meaning universe around the word-concept of consent.
Consent, then, was transformed from an action into the ultimate objective representation (the sign) of liberation and of autonomy. It expressed a philosophy of sex97that was manifested in an object (consent) that itself was manifested by an action (consent), the purity of which was the responsibility of the state to detect and protect—on the basis of its philosophy of sex. Consent, the ALI Reporters explained in 2012, must serve as the fundamental basis for ordering the law of sexual assault. It became both thing and the encapsulation of an ideal set of narratives of pure intimate relations among individuals;98not yet with non-humans for that appeared still a step too far.99 There is irony here, of course. In some respects one returns here to the ancient foundation of meaning making within which consent plays a subsidiary role—the social purpose of intimate contact. What separates the ALI Reporters from Aquinas,100or from Foucault,101 is merely a moral-political stance grounded in peculiar values and an ideological adherence to a view of the “natural.”102 And the natural in this case applies not merely to sex, but to the concept of consent as object (the assent), as a sign (the expression of the ideologies of autonomy, liberation and vulnerability manifested in the object), and as a communication of meaning (here the nexus between the communication of consent and its receipt by another party, and thereafter the meaning given to that ritual of the delivery and receipt of consent adjudged by the community of meaning makers through law or societal consequential systems). This can be expressed as morals, religion, science, or societal expectation (The Semiotics of Consent and the American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions).
These efforts to make sexual relations into the image of its creators continues at the ALI. As the Sexual Assault porton of the Model Penal Code projects lumbers toward its cntentious conclusion (no less contentious I suppose than the convolutions already evident in greater society (and its various fractured cultural sub-communities in the United States). For the 2021 ALI meeting the focus of contention revolve around quite specific (though highly significant) issues:
1. Section 213.3(1)(b)(1); contention around a motion that seeks to make clear that persons in an existing sexual relationship are not per se felons merely for initiating sexual activity before confirming that the sexual partner has fully wakened from the prior night.
2. Section 213.3(2)(b)(iv); contention around a motion that seeks to make clear that competent persons remain competent when undressed and should not lumped together with persons who are actually incompetent for the reasons set forth in the attached document. The Motion also seeks to prevent the re-introduction of Affirmative Consent which has been repeatedly rejected by the Membership ( affirmative consent is discussed in The Semiotics of Consent and the American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions.
3. Section 213.8; contention around a motion that seeks to reduce the situations under which minors are charged with sex offenses. The current draft only addresses age difference between offender and victim, not the age of the offender as a separate limit; it is now possible to read the provision in a way that makes it possible for pre-pubescent children to be charged with felonies against younger children.
4. Section 213.11; contention around a motion that seeks to clarify and tighten the section on collateral consequences to avoid certain specific injustices.
The text of the motions follow. They make for quite powerful reading. That power comes not only from the arguments over the text at issue but respecting the fundamental fracture points of contemporary US elite society over the framework that it will use to articulate and control the manifestation of relations among members of its collective. This is, in that sense, the semiotics of cultural management through meaning making within influential and authoritative institutions.
A postscript also follows in which the actions taken at the ALI meeting with respect to the motions are summarized. The Draft presented was ultimately approved by a majority of the membership at the 2021 meeting.
Model Penal Code: Sexual Assault and Related Offenses
Motion to Amend Section 213.3(1)(b)(i), Sexual Assault of an Incapacitated Person:
Motion by Ron Henry
As currently drafted, this section is over-broad and treats widely disparate actions as if they were identical. A lightly sleeping spouse is not similarly situated to a person who is “unconscious, or physically unable to communicate lack of consent.” As currently drafted, this section also creates a per se crime for which even explicit prior consent would be unavailing.
A person who is “unconscious, or physically unable to communicate lack of consent” is properly covered by 213.3(1)(b)(i). A sleeping spouse or paramour does not have the same incapacity and is fundamentally different from a person who is “unconscious, or physically unable to communicate lack of consent.” The sleeping spouse or paramour, if touched, will simply wake up and decide whether to continue whatever began in the moment before waking. This is not at all the same as sexual contact with a person who is “unconscious, or physically unable to communicate lack of consent” and there is no rational basis for conflating these radically different statuses. Consider first the following example.
Mr. and Mrs. A have slept through the night together. Mrs. A awakens first and, as she has done many times before during the years of marriage, begins to manipulate sleeping Mr. A’s genitals. All is as it has been on all the other occasions except Mrs. A is unaware that Mr. A decided yesterday to seek a divorce, child custody, and an aggressive financial position, giving him a motive to report Mrs. A to the police.
Mrs. A is guilty of “Sexual Assault of an Incapacitated Person” because 213.3(1)(b)(i) creates a per se crime at the instant of the first oral contact even though it is absurd to describe Mr. A as the identical equivalent of a person who is “unconscious, or physically unable to communicate lack of consent.” It is equally absurd to say that Mrs. A’s behavior merits punishment as a Third-Degree Felony. Note also that 213.3(1)(b) is radically more strict than the lesser offense in 213.3(2)(b). Under 213.3(2)(b), Mrs. A would only have liability if Mr. A was “substantially incapable of appraising the nature of the sexual activity involved” and, even then, would be only a Fourth- Degree Felon.
It is not sufficient to say that a statute is needed because some sleeping persons might be victimized. No one disputes that it is fair to have a statute for dealing with a sleeping person on a bus who is assaulted by a stranger. The criminal law, however, must not cast an unduly wide net that captures the innocent (like Mrs. A) along with the guilty. The remedy is simply a matter of
adding a little precision to avoid over-breadth. If a couple is already in a consensual sexual relationship, there is no reason to create a per se crime placing one of them at risk for initiating sex before the other has fully wakened. The current draft stating:
“(i) is sleeping, unconscious, or physically unable to communicate lack of consent” Should be clarified as follows:
“(i) is sleeping and not in an existing sexual relationship with the actor; or (ii) is unconscious, or physically unable to communicate lack of consent....”
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Model Penal Code: Sexual Assault and Related Offenses
Motion to Amend Section 213.3(2)(b)(iv), Sexual Assault of a Vulnerable Person:
Motion by: Ron Henry
This section is over-broad and creates improper per se crimes. 213.3(2)(b) addresses situations in which:
“(b) the act is without effective consent because, at the time of the act, the other person:
(i) has an intellectual, developmental, or mental disability, or a mental illness, that makes the person substantially incapable of appraising the nature of the sexual activity involved, or of understanding the right to give or withhold consent in sexual encounters, and the actor has no similarly serious disability; or
(ii) is passing in and out of consciousness; or
(iii) lacks substantial capacity to communicate lack of consent; or
213.3(2)(b)(i)-(3) properly address vulnerable persons who have “an intellectual, developmental, or mental disability, or a mental illness, that makes the person substantially incapable of appraising the nature of the sexual activity involved” and properly addresses persons who are “passing in and out of consciousness” and persons who lack a “substantial capacity to communicate a lack of consent.” The section goes too far, however, in 213.3(b)(iv) by also throwing in persons who are fully competent and treating them as incompetent merely because of their state of dress. These persons are not incompetent. They are perfectly capable of giving or denying consent yet we are told that their consent is ineffective (213.3(4)) unless they also give their consent by “explicit prior permission.”
To begin, there is no reason to treat competent persons as if they were incompetent and impose per se criminality through 213.3(4)(“consent is ineffective”). The reporters recognize this and create a backdoor allowing the person to reclaim competency if the person has given “explicit prior permission,” but this does not solve the problem, it only compounds the problem.
The phrase “explicit prior permission” is yet again the reintroduction of “Affirmative Consent” which has been repeatedly rejected by the Membership. “Consent” is the standard that has been adopted in this project. The reintroduction of “affirmative consent” has been a recurring problem throughout this project. As far back as 2016, critics have decried the “Whack-a-Mole” recurrence of “affirmative consent” in various guises. 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 . 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.
It is now 2021, yet here we are again with the wholly unneeded introduction of “explicit prior permission” as the newest formulation of “affirmative consent.” There is no basis for treating a competent person as incompetent based of the person’s state of dress and no need to create a back door for the person to reclaim competence through “explicit prior permission.”
A competent person is a competent person whether dressed or undressed. A competent person can give or deny consent, whether dressed or undressed. To the extent that being undressed is relevant in a particular case, it will be considered at the sentencing phase.
213.3(2)(b)(iv) should be deleted
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MOTION
MODEL PENAL CODE: SEXUAL ASSAULT AND RELATED OFFENSES
TENTATIVE DRAFT NO. 5
Motion to Amend § 213.8 Submitted by David Aronofsky, Member
SECTION 213.8. SEXUAL OFFENSES INVOLVING MINORS
(1) Sexual Assault of a Minor. An actor is guilty of Sexual Assault of a Minor when:
(a) the actor engages in an act of sexual penetration or oral sex with another person or causes another person to submit to or perform an act of sexual penetration or oral sex; and
(b) the act is without effective consent because at the time of the act:
(i) the other person is younger than 16; and
(ii) the actor is more than five years older than the other person; and
(c) the actor is aware of, yet recklessly disregards, the risk that the circumstances described in paragraphs (a) and (b) exist.
Sexual Assault of a Minor is a felony of the fifth degree [three-year maximum] except that it is a felony of the fourth degree [five-year maximum] when at the time of the act the actor is 21 or older, and it is a felony of the third degree [10-year maximum] and a registrable offense when at the time of the act the actor is 21 or older, the other person is younger than 12, and the actor is aware of, yet recklessly disregards, the risk that the other person is younger than 12.
(2) Incestuous Sexual Assault of a Minor. An actor is guilty of Incestuous Sexual Assault of a Minor when:
(a) the actor engages in an act of sexual penetration or oral sex with another person or causes another person to submit to or perform an act of sexual penetration or oral sex; and
(b) at the time of the act, the actor is 18 or older and the other person is younger than 18; and
(c) the act is without effective consent because at the time of the act the actor is:
(i) a parent or grandparent of the other person, including a biological, step, adoptive, or foster parent or grandparent; or
(ii) the legal spouse, domestic partner, or sexual partner of a person described by subparagraph (i); or
(iii) a legal guardian or de facto parent of the other person, who resides intermittently or permanently in the same dwelling as the other person; and
(d) the actor is aware of, yet recklessly disregards, the risk that the circumstances described in paragraphs (a) through (c) exist.
Incestuous Sexual Assault of a Minor is a felony of the third degree [10-year maximum]. It is a registrable offense when at the time of the act the other person is younger than 16.
(3) Exploitative Sexual Assault of a Minor. An actor is guilty of Exploitative Sexual Assault of a Minor when:
(a) the actor engages in an act of sexual penetration or oral sex with another person or causes another person to submit to or perform an act of sexual penetration or oral sex; and
(b) the act is without effective consent because at the time of the act:
(i) the other person is younger than 18; and
(ii) the actor is more than five years older than the other person; and(iii) the actor holds a formal position of authority over the other person, such as a teacher, employer, religious leader, treatment provider, administrator, or coach; and
(c) the actor is aware of, yet recklessly disregards, the risk that the circumstances described in paragraphs (a) and (b) exist.
Exploitative Sexual Assault of a Minor is a felony of the fifth degree [three-year maximum]. It is a defense to a prosecution under Section 213.8(3) for the actor to prove by a preponderance of the evidence that the actor’s position of authority over the other person did not impair the other person’s ability to form an independent judgment about whether to consent to the act of sexual penetration or oral sex.
(4) Fondling a Minor. An actor is guilty of Fondling a Minor when:
(a) the actor knowingly fondles another person, or knowingly causes another person to submit to or perform an act of fondling with anyone; and
(b) the act is without effective consent because at the time of the act:
(i) the other person is younger than 12 and the actor is more than five years older than the other person; or
(ii) the other person is younger than 16 and the actor is more than seven years older than the other person; and
(c) the actor is aware of, yet recklessly disregards, the risk that the circumstances described in paragraph (b)(i) or (ii) exist.
Grading. Fondling a Minor is a felony of the fifth degree [three-year maximum], except that it is a felony of the fourth degree [five-year maximum] when at the time of the act the actor is 21 or older, the other person is younger than 12, and the actor is aware of, yet recklessly disregards, the risk that the other person is younger than 12.
(5) Aggravated Offensive Sexual Contact with a Minor. An actor is guilty of Aggravated Offensive Sexual Contact with a Minor when:
(a) the actor knowingly engages in an act of sexual contact with another person or causes another person to submit to or perform an act of sexual contact; and
(b) the act is without effective consent because at the time of the act:
(i) the other person is younger than 18; and
(ii) the actor is more than five years older than the other person; and
(iii) the act, had it been an act of sexual penetration or oral sex, would be an offense as defined by Section 213.1, 213.2, 213.3, 213.4, 213.5, or 213.8(2) or (3); and
(c) the actor is aware of, yet recklessly disregards, the risk that the circumstances described in paragraph (b)(i) and (ii) exist.
Aggravated Offensive Sexual Contact with a Minor is a felony of the fourth degree [five-year maximum].
(6) Offensive Sexual Contact with a Minor. An actor is guilty of Offensive Sexual Contact with a Minor when:
(a) the actor knowingly engages in, or causes another person to submit to or perform:
(i) an act of sexual contact; or
(ii) an act involving the touching of the tongue of anyone to any body part or object, when that act is for the purpose of anyone’s sexual arousal, sexual gratification, sexual humiliation, or sexual degradation; and
(b) the act is without effective consent because at the time of the act:
(i) the other person is younger than 12, and the actor is more than five years older than the other person; or
(ii) the other person is younger than 16, and the actor is more than seven years older than the other person; and
(c) the actor is aware of, yet recklessly disregards, the risk that the circumstances described in paragraph (b)(i) or (ii) exist.
Offensive Sexual Contact with a Minor is a misdemeanor [one-year maximum], except that it is a felony of the fifth degree [three-year maximum] when at the time of the act the actor is 21 or older, the other person is younger than 12, and the actor is aware of, yet recklessly disregards, the risk that the other person is younger than 12.
(7) Effective consent. Consent is ineffective under Section 213.0(2)(e)(iv) when the circumstances described in any of the subsections (1) through (6) exist at the time of the act. Submission, acquiescence, or words or conduct that would otherwise indicate consent do not constitute effective consent when occurring under the circumstances described in any of those subsections.
(8) Calculation of ages. The age of any person described in this Section is calculated according to the “days-and-month” approach, which determines age by the day, month, and year of that person’s birth, measured in whole numbers.
(9) Affirmative defense of marriage. It is an affirmative defense to a charge under subsections (1), (3), (4), and (6) of this Section, and to a charge under subsection (5)(d) based on an act that would be a violation of subsection (8)(3) had it been an act of sexual penetration or oral sex, that the actor was the legal spouse of the other person at the time of the act of sexual penetration, oral sex, fondling, or sexual contact.
(10) Bar against certain juvenile sexual offense felony charges, delinquency adjudications or convictions. Notwithstanding any other provision of law in this Section:
(a) no actor whose alleged offense subject to this Section occurred when the actor was less than 16 years old may be charged or convicted as an adult;
(b) no actor whose alleged offense subject to this Section occurred when the actor was less than 16 years old may be charged with or adjudicated delinquent for a juvenile felony, except when state law requires a juvenile felony charge and delinquency adjudication for an actor whose alleged offense occurred when the actor was 14 or 15 years old for the purpose of complying with the federal Sex Offender Registration and Notification Act (SORNA); and
(c) No actor less than 14 years of age at the time an alleged offense subject to this Section occurred may be charged with a juvenile felony.
Explanation of proposed change
This Motion adds a new subsection (10) to Section 213.8 to bar (i) charging or convicting as an adult anyone whose alleged sexual offense occurred when the accused was less than 16 years old; ii) charging or adjudicating delinquent anyone whose alleged sexual offense occurred when the accused was less than 16 years old for a juvenile felony, except when state law requires felony charging for, or adjudicating delinquent, anyone 14 or 15 years old when the alleged offense occurred to meet SORNA requirements; and (iii) juvenile felony charges against or delinquency adjudications of anyone younger than 14 years old when the alleged sexual offense occurred. Subsections 213.8 (1), (4), (5) and (6) as currently drafted permit felony charges, delinquency adjudications and/or convictions based solely on age differences between the accused and the victim regardless of the accused’s age, subjecting an accused even 10 or younger in certain cases to felony charges. The subsection (4) fondling prohibition, albeit well-intended, ignores both typical child behaviors and common sense when applied without regard to actual alleged victim and accused ages.
Juvenile felony prosecutions, adjudications and convictions in and of themselves are troubling because a number of states subject juveniles with subsequent felony adjudications to serious legal consequences even if an initial felony occurred at a very young age; and even when the juvenile is not tried as an adult for a subsequent offense. Nationally, felony charges against juvenile racial minorities exceed those against non-minorities by as much as 4-1. Expunging juvenile felonies poses much more serious challenges than expunging misdemeanors. Juvenile felony sexual offenses pose unusually difficult problems because they can subject those convicted or adjudicated to extreme registration requirements
lasting up to 25 years after a juvenile reaches adulthood. The Juvenile Law Center notes that at least 200,000 persons in the U.S remain currently registered for sexual offenses committed by minors as young as 8 years old. Federal SORNA registration requirements account for a number of these registrations involving the most serious sexual offenses committed by persons when they were 14-17 years old, but many registrations appear to result from state laws only tangentially linked to SORNA. The Juvenile Law Center has prepared a comprehensive state-by-state registration report showing wide, and in certain situations, seemingly arbitrary or irrational registration requirement disparities. https://jlc.org/resources/labeled-life-review-youth-sex-offender-registration-laws
The American Bar Association and the Juvenile Law Center have noted that juvenile sexual assault offenders have very low (3- 5%) recidivism rates, which drop even further after a few years following an initial offense. Mandating juvenile sexual offense adult and delinquency felony prosecutions jams our already overloaded courts, which all too often welcome pleas with far-reaching consequences; chills achieving the primary rehabilitation mission of the juvenile justice system; and ultimately reflects a sense of futility and surrender regarding efforts to divert minors from the U.S. criminal population.
In his December 8, 2017 Director’s Letter, Ricky Revesz does a terrific job tracing the original Model Penal Code history and purpose within the framework of explaining the ALI views about model laws. The MPC Reporters and the ALI leadership rejected the notion that criminal laws at the time the initial MPC Project began were okay and needed no significant changes. Instead, as Ricky notes, the MPC then and model laws now, including the current MPC Sexual Assault project, seek to:
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Rethink and reformulate toward a more just and more effective criminal law.
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Make criminal law as rational and just as law can be.
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Systematically re-examine the content, methods and objectives of the penal law.
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Stimulate legislatures to revise their penal laws with contemporary reasoned judgment.
•Discard outmoded approaches and adopt rules that better comport with modern understandings of justice and fairness, and that reflects contemporary social sciences work.
The American Law Institute can and should take our Director’s above message to heart by approving this Motion as a modest step towards helping reshape our juvenile penal laws to attain their purpose.
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ALL MOTIONS RELATE TO SEXUAL ASSAULT AND RELATED OFFENSES TENTATIVE DRAFT NO. 5
MOTION OF ALAN MORRISON
TO AMEND SECTION 213.11A (pp 539-40)
Amend section 213.11A by adding a new subsection (4).
“(4) Retroactive Effect
As of the effective date of this section, all prior registration requirements applicable topersons in this jurisdiction, whether imposed by this or any other state, are subject to the requirements and limits of this Article.”
Comment: The registration requirements and limits of this Article are intended to be exclusive so that prior registration requirements may continue only if they meet the substantive and procedural requirements under this Article. This rule applies to requirements imposed by the laws of this or any other state, but not to any requirements imposed by federal law. For the effect of this provision on partially expired time limits, see Section 213.11F.
MOTION OF ALAN MORRISON
TO AMEND SECTION 213.11E (pp. 562-64)
1. Amend Section 213.11E(1) by adding the following at the end thereof: “The entity responsible for registration under this Article must provide notice of the requirements of this Section, sent at least 30 days before the person’s annual registration date to the person’s last known address.”
Comment: The goal of the annual registration requirement is to maintain updated information on persons required to register. This modest notification requirement will help achieve that goal and will minimize the number of cases in which a registrant forgets about this obligation.
2. Amend Section 213.11E(2)(d), by adding the following at the end thereof: “other than for the annual in person meeting requirement of Subsection (1).”
Comment: This addition is made to be certain that the alternative means of providing information do not apply to the annual in person appearance required by Subsection (1).
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MOTION OF ALAN MORRISON
TO AMEND SECTION 213.11F (pp. 567-68)
Explanation: This Article makes the judgment that the duration of registration requirements should not exceed 15 years. For requirements imposed under the laws of this or any other state prior to the effective date of this Article (which are still valid under this Article), the question is whether time under a prior registration should “count” toward that fifteen years, or whether the 15 years should start again as of the effective date. This amendment takes the position that the total registration time in this jurisdiction, under the prior and current laws, should not exceed 15 years.
Amend Section 213.11F by adding a new subsection (7):
“(7) Calculating Required Years. In determining whether the 15 years in subsections (1) & (2) have been completed, any time in which the person was registered under prior registration requirements shall be included in that determination.”
Comment: Although the prior time under which a person has been registered before the effective date of this Article should be subtracted from the total of 15 years required registration under Subsections (1) & (2), this provision does not apply to the separate reduction in registration for good behavior after 10 years under Subsection (3), which is tailored to the requirements of this Article.
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MOTION OF ALAN MORRISON TO AMEND SECTION 213.11G (p. 371)
Amend Section 213.11G by adding the following subsection (3):
“(3) No Collateral Consequences. The failure to register may not be the basis of a revocation of bail, probation, parole, or other similar conditions of release from confinement, unless the person who failed to register has been convicted under this Section.”
Comment: This section recognizes that there is a significant likelihood that registrants will fail to meet all the requirements of the law and/or fail to do so in a timely fashion. This section sets forth the requirements before someone can be convicted for such a failure, and this Subsection (3) assures that the collateral consequences of such failure – which are often more serious than a misdemeanor conviction – are not imposed against the registrant. The history of individuals on parole or probation being sent to prison because of violations such as this has led to massive prison overcrowding, as well disrupted the lives of individuals who are making honest, if not always entirely successful, efforts to comply with the terms of their release and become productive members of society.
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MOTION OF ALAN MORRISON
TO AMEND SECTION 213.11I (pp. 581-83)
Amend section 213.11I by adding the following new subsection (7):
“(7) Judicial Review. A person on whom additional collateral consequences have been imposed under this Section is entitled to judicial review in an appropriate court, within the time provided by law for review of other decisions of administrative agencies in this jurisdiction.”
Comment: It is a generally accepted principle of administrative law that persons adversely affected by agency decisions are entitled to judicial review of them. It is also the case that in many jurisdictions there is appellate review of sentences in criminal cases. Those principles apply to cases in which the designated official has imposed additional adverse consequences on a person convicted under this Article. The forum in which judicial review will take place, the time within which review may be sought, and the standards to be applied in that proceeding are governed by state law applicable to comparable decisions.
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Attachment: Redline showing proposed changes in black letter text
SECTION 213.11A. REGISTRATION FOR LAW-ENFORCEMENT PURPOSES
(1) Offenses Committed in This Jurisdiction
(a) Except as provided in subsection (3), every person convicted of an offense
that is designated a registrable offense in this Article must, in addition to any other sanction imposed upon conviction, appear personally and register, at the time specified in Section 213.11C, with the law-enforcement authority designated by law in the [county] where the person resides. If the person who is required to register under this subsection does not reside in this jurisdiction, but works in this jurisdiction, registration must be accomplished in the [county] where the person works; if the person does not reside or work in this jurisdiction but is enrolled in a program of study in this jurisdiction, registration must be accomplished in the [county] where the person studies.
(b) Notwithstanding any other provision of law, no conviction for an offense
under this Article, or for any other criminal offense in this jurisdiction, will require
the person convicted to register with law enforcement or other governmental
authority in a registry regime applicable primarily to persons convicted of a sexual
offense, unless this Article designates that offense as a registrable offense.
(2) Offenses Committed in Other Jurisdictions
(a) Duty to register and related duties. Every person currently obliged to register with law enforcement or other pubic authority in another jurisdiction, because of a sexual offense committed in that jurisdiction, who subsequently resides, works, or enrolls in a program of study in this jurisdiction, must register with the law-enforcement authority designated by law and comply with the requirements of Sections 213.11A-213.11G, provided that the offense committed in the other jurisdiction is comparable to an offense that would be registrable under this Article if committed in this jurisdiction.
(b) Place of registration. If the person who is obliged to register under paragraph (a) resides in this jurisdiction, registration must be accomplished in the [county] where the person resides. If the person who is obliged to register under paragraph (a) does not reside in this jurisdiction, but works in this jurisdiction, registration must be accomplished in the [county] where the person works; if the person does not reside or work in this jurisdiction but is enrolled in a program of
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study this jurisdiction, registration must be accomplished in the [county] where the person studies.
(c) Determining the comparability of in-state and out-of-state offenses
(i) Standard. An offense committed in another jurisdiction is
comparable to a registrable offense under this Article if and only if the
elements of the out-of-state offense are no broader than the elements of that
registrable offense. When, regardless of the conduct underlying the out-of-
state conviction, the out-of-state offense can be committed by conduct that is
not sufficient to establish a registrable offense under this Article, the two
offenses are not comparable.
(ii) Procedure. Before determining that an offense committed in another
jurisdiction is comparable to a registrable offense under this Article, the authority designated to make that determination must give the person concerned notice and an opportunity to be heard on that question, either orally or in writing.
(d) Notwithstanding any other provision of law, no conviction for a sexual
offense in another jurisdiction will require the offender to register with law
enforcement or other governmental authority in this jurisdiction, unless that
conviction currently requires the offender to register with law enforcement or other
governmental authority in the jurisdiction where the offense was committed and the
conviction is for an offense comparable to an offense that would be registrable under
this Article if committed in this jurisdiction.
(3) Persons under the age of 18. No person may be subject to the obligation to register
under subsection (1) of this Section, to other obligations or restrictions under this Section, or to additional collateral consequences under Section 213.11I, on the basis of a criminal conviction for an offense committed when the person was under the age of 18, or on the basis of an adjudication of delinquency based on conduct when the person was under the age of 18; provided, however, that this subsection (3) does not apply to a person convicted of a criminal offense of Sexual Assault by Aggravated Physical Force or Restraint if the person was at least 16 years old at the time of that offense.
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(4) Retroactive Effect. As of the effective date of this section, all prior registration requirements applicable to persons in this jurisdiction, whether imposed by this or any other state, are subject to the requirements and limits of this Article.
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SECTION 213.11E. DUTY TO KEEP REGISTRATION CURRENT
(1) Periodic Updates. A person who is required to register under Section 213.11A must, not less frequently than once every year, appear in person in at least one jurisdiction where the person is required to register, verify the current accuracy of the information provided in compliance with Section 213.11D(1), allow the jurisdiction to take a current photograph, and report any change in the identity of other jurisdictions in which the person is required to register or in which the person works or is enrolled in a program of study. The entity responsible for registration under this Article must provide notice of the requirements of this Section, sent at least 30 days before the person’s annual registration date to the person’s last known address.
(2) Change of Circumstances
(a) Except as provided in paragraph (b) of this subsection, a person subject to
registration under Section 213.11A must, not later than five business days after each change of name and each change in the location where the person resides, works, or is enrolled in a program of study, notify at least one local jurisdiction specified in Section 213.11A of:
(i) all changes in the information that the person is required to provide under Section 213.11D, and
(ii) the identity of all other jurisdictions in which the person resides, works, or is enrolled in a program of study.
(b) Registrants who lack a stable residential address, and therefore report instead the principal place or places where they sleep, as provided in Section 213.11D(3), must confirm or update those locations once every 90 days but need not do so more often.
(c) Each jurisdiction that maintains a registry of persons who have been convicted of a sexual offense must permit registrants to notify the jurisdiction, by one or more reliable, readily accessible methods of communication of the jurisdiction’s choosing, such as U.S. mail, submission of an appropriate form online, or otherwise, of any change of name, residence, employment, student status, or vehicle regularly used, and any change in the identity of all other jurisdictions in which the person
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resides, works, or is enrolled in a program of study.
(d) Each jurisdiction where a person registers pursuant to Section 213.11A must advise the registrant, at the time of registration, of the registrant’s option to use the means of communication established under subsection (2)(c), rather than appearing personally for that purpose, if the registrant so chooses other than for the annual in person meeting requirement of Subsection (1).
(3) The local jurisdiction notified of any changes pursuant to subsections (1) and (2) must promptly provide the registrant a written receipt confirming that the updated information has been provided, and must provide that information to all other jurisdictions in which the person resides, works, or is enrolled in a program of study.
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SECTION 213.11F. DURATION OF REGISTRATION REQUIREMENT
(1) Subject to the provisions of subsection (3) of this Section and Section 213.11J, a person required to register must keep the registration current for a period of 15 years, beginning on the date when the registrant is released from custody after conviction for the offense giving rise to the registration requirement; or if the registrant is not sentenced to a term of incarceration, beginning on the date when the registrant was sentenced for that offense.
(2) At the expiration of that 15-year period, the duty to keep that registration current will terminate; the person who had been registered will not be subject to any further duties associated with that registration requirement; and no public or private agency other than a government law-enforcement agency shall thereafter be permitted access to the person’s registry information.
(3) Early termination. If, during the first 10 years of the period during which a person is required to keep registration information current, the person:
(a) successfully completes any period of supervised release, probation, or parole, and satisfies any financial obligation such as a fine or restitution, other than a financial obligation that the person, despite good-faith effort, has been unable to pay; and
(b) successfully completes any required sex-offense treatment program; and
(c) is not convicted of, or facing pending charges for, any subsequent offense
under this Article, or any subsequent sexual offense in another jurisdiction that would
be an offense under this Article if committed in this jurisdiction; then:
the duty to keep that registry information current will terminate; the person who had
been registered will not be subject to any further duties associated with that registration requirement; and subsequent access to registry information will be governed by subsection (4).
(4) Access to Registry Information after Termination. When the person’s obligation to register and to keep registry information current terminates under subsection (2) or (3), subsequent access to registry information is limited as follows:
(a) Registry information recorded as of the date when termination takes effect may remain available to any government law-enforcement agency seeking disclosure of that information in compliance with Section 213.11H(1)(a).
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(b) Except as provided in paragraph (a), no public or private agency may thereafter be permitted access to registry information concerning the person whose obligation to register and keep registry information public has terminated.
(5) Notice of Termination. When a person’s duty to register terminates under subsection (2) or (3), the law-enforcement agency in the local jurisdiction where the person resides must:
(a) include in its registry a notice that the person’s duty to register and all duties associated with that registration requirement have terminated; and
(b) upon the person’s request, notify all other jurisdictions where the person is registered and where information about the registrant has been provided pursuant to Section 213.11D(4) that the person’s duty to register and all duties associated with that registration requirement have terminated and that no public or private agency other than a government law-enforcement agency shall thereafter be permitted to have access to that registry information.
(6) Certification. When a person’s duty to register terminates under subsection (2) or (3), the law-enforcement agency in the local jurisdiction where the person resides must, upon request, provide that person a certificate attesting that person’s duty to register and all duties associated with that registration requirement have terminated.
(7) Calculating Required Years. In determining whether the 15 years in subsections (1) & (2) have been completed, any time in which the person was registered under prior registration requirements shall be included in that determination.
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SECTION 213.11G. FAILURE TO REGISTER
(1) Offense of Failure to Register. A person required to register under Section 213.11A is guilty of Failure to Register, a misdemeanor, if that person knowingly fails to register as required by Sections 213.11A, 213.11C, 213.11D, and 213.11E(1), or knowingly fails to update a registration as required by Section 213.11E(2).
(2) Affirmative Defense. In a prosecution for Failure to Register under subsection (1) of this Section, it is an affirmative defense that:
(a) circumstances beyond the control of the accused prevented the accused from complying;
(b) the accused did not voluntarily contribute to the creation of those circumstances in reckless disregard of the requirement to comply; and
(c) after those circumstances ceased to exist, the accused complied as soon as reasonably feasible.
(3) No Collateral Consequences. The failure to register may not be the basis of a revocation of bail, probation, parole, or other similar conditions of release from confinement, unless the person who failed to register has been convicted under this Section.
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SECTION 213.11I. ADDITIONAL COLLATERAL CONSEQUENCES OF CONVICTION
(1) Definition. For purposes of this Section, the term “additional collateral consequence” means any collateral consequence, as defined in Section 213.11(1)(b), that is applicable primarily to persons convicted of a sexual offense, other than the obligation to register with law enforcement specified in Section 213.11A, the associated duties and restrictions specified in Sections 213.11C-213.11G, and any restriction on occupation or employment required by state law. These additional collateral consequences include any government-imposed program or restriction applicable primarily to persons convicted of a sexual offense that restricts the convicted person’s occupation or employment except as required by state law; limits the convicted person’s education, Internet access, or place of residence; uses methods such as GPS monitoring to track the person’s movements; notifies a community organization or entity or a private party that the person resides, works, or studies in the locality; or permits a public or private agency, organization, or person to access registry information, except as authorized by Section 213.11H. An “additional collateral consequence” under this Section does not include a collateral consequence that applies to persons convicted of many different offenses, such as government-imposed limits on voting, jury service, access to public benefits, and other government-imposed penalties, disabilities, and disadvantages that result from conviction of a wide variety of offenses, including but not limited to sexual offenses.
(2) Additional Collateral Consequences Precluded for Persons Not Required to Register. Notwithstanding any other provision of law, no person shall be subject to an additional collateral consequence, as defined in subsection (1), unless that person has been convicted of a registrable offense and is required to register with law enforcement under Section 213.11A.
(3) Additional Collateral Consequences Precluded for Persons Required to Register. Notwithstanding any other provision of law, a person required to register with law enforcement under Section 213.11A must not be subject to any government action notifying a community organization or entity or a private party that the person resides, works, or studies in the locality; and must not be subject to any government action permitting a public or private agency, organization, or person to access registry information, except as authorized by Section 213.11H.
(4) Additional Collateral Consequences Available for Persons Required to Register. Notwithstanding any other provision of law, a person required to register with law
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enforcement under Section 213.11A may be subject to an additional collateral consequence not specified in subsection (3), but only if an official designated by law, after affording the person notice and an opportunity to respond concerning the proposed additional collateral consequence, determines that the additional collateral consequence is manifestly required in the interest of public safety, after due consideration of:
(a) the nature of the offense;
(b) all other circumstances of the case;
(c) the person’s prior record; and
(d) the potential negative impacts of the burden, restriction, requirement, or
government action on the person, on the person’s family, and on the person’s
prospects for rehabilitation and reintegration into society.
(5) Limitations. The designated official who approves any additional collateral
consequence pursuant to subsection (4) of this Section must determine that the additional collateral consequence:
(a) satisfies all applicable notification requirements set forth in Section 213.11B;
(b) is authorized by law;
(c) is drawn as narrowly as possible to achieve the goal of public safety;
(d) is accompanied by a written statement of the official approving the
additional collateral consequence, explaining the need for it, the evidentiary basis for the finding of need, and the reasons why a more narrowly drawn restriction, disability, or government action would not adequately meet that need; and
(e) is imposed only for a period not to exceed that permitted under Section 213.11F for the duties to register and keep the registration current.
(6) Confidentiality. In any proceeding under subsection (4) to consider whether to impose an additional collateral consequence, the official responsible for making the determination must insure that the identity of the registrant concerned remains confidential.
(7) Judicial Review. A person on whom additional collateral consequences have been imposed under this Section is entitled to judicial review in an appropriate court, within the time provided by law for review of other decisions of administrative agencies in this jurisdiction.
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POSTSCRIPT:
As Reported by the ALI
Model Penal Code: Sexual Assault and Related Offenses
The session on the Model Penal Code: Sexual Assault and Related Offenses spanned both days of the Annual Meeting (June 7 and 8). Reporter Stephen J. Schulhofer and Associate Reporter Erin E. Murphy were joined by ALI Council member Lee H. Rosenthal, who chaired the session. A complete draft of the project was presented to the membership.
Actions Taken
Two motions to amend the “recklessly” formulation in Article 213 failed.
A motion presented by Kimberly Kessler Ferzan to amend the “recklessly” mens rea formulations in Article 213 and structure in certain offenses passed.
Three motions to modify Section 213.3 failed.
After the Reporters agreed in substance to a motion to add a new subsection (10) to Section 213.8, an amended motion to add the following language as a new subsection (10) was passed by the membership: “For an offense charged under Section 213.8, an actor younger than 14 may be adjudicated delinquent only as a misdemeanant, regardless of the penalty authorized by the statute for the offense.”
A motion to delete Section 213.10 failed.
Six motions to amend Sections 213.11A, 213.11E, 213.11F, 213.11G, and 213.11I were accepted by the Reporters and passed by the membership.
A motion to remove subsection (1)(b) of Section 213.0 failed.
The membership voted to approve Tentative Draft No. 5. Approval of this draft marks the completion of the project, subject to the Council’s approval of the amendments approved at this Annual Meeting.
Monday, June 7
The afternoon began with Principles of the Law, Government Ethics. Reporter Richard Briffault and Associate Reporter Richard W. Painter were joined by ALI Council member Troy A. McKenzie, who served as Chair. Tentative Draft No. 3 includes a portion of Chapter 5, Restrictions on Leaving or Entering Public Service (§§ 5.01(d), 514, 515); Chapter 6, Disclosure; and Chapter 7, Administration and Enforcement of Ethics Provisions.
Actions Taken
The membership voted to approve the Tentative Draft.
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