ALI’s Sexual Assault project will update the Sexual Offenses provisions in Article 213 of the 1962 Model Penal Code. The project will define and grade offenses based on the act—what a person does—and the person’s culpability or mental state. In order to understand the grading of offenses in the project, one must look at the 1962 Model Penal Code, Section 2.02: General Requirements of Culpability.

Model Penal Code Section 2.02. General Requirements of Culpability.
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2) Kinds of Culpability Defined.

(a) Purposely.
A person acts purposely with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(b) Knowingly.
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.

(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

(d) Negligently.
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

(4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

(5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.

The Model Penal Code of 1962 clarified and simplified criminal law in many ways, including by clearly defining four mental states relevant to determining culpability. The majority of states use the Model Penal Code’s mental-state classification, and most jurisdictions have adopted criminal codes that substantially incorporate the Code’s formulation of “recklessness.”

The U.S. Supreme Court recently discussed the Code’s mental-state construct in Voisine v. United States:

To commit an assault recklessly is to take that action with a certain state of mind (or mens rea)—in the dominant formulation, to “consciously disregard[ ]” a substantial risk that the conduct will cause harm to another. ALI, Model Penal Code § 2.02(2)(c) (1962)…. For purposes of comparison, to commit an assault knowingly or intentionally (the latter, to add yet another adverb, sometimes called “purposefully”) is to act with another state of mind respecting that act’s consequences—in the first case, to be “aware that [harm] is practically certain” and, in the second, to have that result as a “conscious object.” Model Penal Code §§ 2.02(2)(a)-(b); Me. Rev. Stat. Ann., Tit. 17–A, §§ 35(1)-(2).

136 S.Ct. 2272, 2278 (2016).

The Voisine Court, in discussing the intent of the federal gun control statute at issue in the case, explained:

Several decades earlier, the Model Penal Code had taken the position that a mens rea of recklessness should generally suffice to establish criminal liability, including for assault. See § 2.02(3), Comments 4–5, at 243–244 (“purpose, knowledge, and recklessness are properly the basis for” such liability); § 211.1 (defining assault to include “purposely, knowingly, or recklessly caus[ing] bodily injury”). States quickly incorporated that view into their misdemeanor assault and battery statutes. So in linking § 922(g)(9) to those laws, Congress must have known it was sweeping in some persons who had engaged in reckless conduct. See, e.g., United States v. Bailey, 9 Pet. 238, 256, 9 L.Ed. 113 (1835) (Story, J.) (“Congress must be presumed to have legislated under this known state of the laws”).

Id. at 2280.

The American Law Institute undertakes a project or portions of previous projects when there is evidence that there is need for clarification or revision. Article 213: Sexual Offenses, though forward looking in 1962, is outdated by both legal and societal standards. The Sentencing provisions from the 1962 Code recently were updated by ALI for similar reasons, and are being prepared as an official text now.

There is little evidence that Section 2.02. General Requirements of Culpability, is in need of revision. The project drafts should be read in conjunction with Section 2.02 and the other provisions of Article 2 of the 1962 Code (“General Principles of Liability”), which also defines other basic concepts and general rules of interpretation that govern the Model Penal Code as a whole. When using or analyzing any portion of the Code, it should be considered in the context of the whole Code, rather than as a discrete separate part.