Below is the Reporter’s Memorandum from Tentative Draft No. 6 of Model Penal Code: Sexual Assault and Related Offenses.

Model Penal Code: Sexual Assault and Related Offenses

Tentative Draft No. 6

Stephen J. Schulhofer, Reporter

April 15, 2022

REPORTER’S MEMORANDUM

At the Annual Meeting in June 2021, the membership discussed black letter and Commentary for the entirety of revised Article 213 of the Model Penal Code, as presented with Council approval in Tentative Draft No. 5. The membership approved that Draft, subject to a number of amendments. The Council had not yet reviewed those amendments, which therefore required Council approval.

Most of the amendments suggested a direction for revision rather than a definitive text; the task of translating each amendment into language that could be integrated into the final black letter was left to the Reporter._* Subsequently, the Reporter, together with ALI staff, especially Law Fellow Ben Brady, completed that process, consulting with sponsors of the amendments when necessary, drafting final language, and integrating it into the black letter in Council Draft No. 12. The draft also included Boskey-compliant editorial revisions. It was presented to the Council for review at its meeting in January 2022.

On the eve of the Council’s January meeting, it received comments on the Draft from Deputy Attorney General Lisa Monaco, as well as from the Department of Justice’s Office of Legal Policy, the National Association of Attorneys General (NAAG), and the National Center for Missing & Exploited Children (NCMEC), among other groups. The comments focused in particular on Section 213.0’s definition of consent, Section 213.9’s provisions relating to sex trafficking, and Section 213.11’s provisions relating to sex-offense registration and other collateral consequences. The Council deferred consideration of CD 12 until its meeting in March 2022, to permit the Reporter and ALI staff to meet with these groups and consider their concerns and to give Council members more time to consider the comments.

After extended conversations with these groups, the Reporter, working with ALI staff, especially Law Fellow Harry Larson, proposed a number of revisions to the original black letter of CD 12. The text of revised CD 12, was posted on the project’s website prior to the March meeting, where the Council approved it along with several additional (largely editorial) amendments.

As in other aspects of this project, the aim was not to win the support of any group for its own sake, but only to produce the substantively strongest possible product. With that in mind, it was valuable to sit down (remotely) with leaders of these groups to explore their concerns. In the end, however, it was not possible to accept the great majority of their priority objections, which proved incompatible with judgments to which the membership and the Institute are strongly committed—for example, the Institute’s rejection of: (i) mandatory minimum sentences; (ii) prevalent punishment levels for sexual offenses; (iii) broad, indiscriminate definitions of offenses like Sex Trafficking; (iv) registration for a broad range of nonviolent and less aggravated sexual offenses; and (v) registry obligations cast in burdensome, long-lasting terms that prevent the registrant’s reintegration into society for many years after the offense.

None of the objections raised with us was more forcefully pressed than these groups’ support for a public website listing persons who have been convicted of sexual offense and virtually unrestricted public access to much of the personal information maintained in local sex-offense registries. In each of our meetings, spokespersons for these groups stressed (as did some experts we had previously consulted) their strong belief in the importance of these measures. We are grateful for the time and attention generously given to us and our project by these leaders, including Assistant Attorney General Dellinger and many others. We should not and did not ignore the expertise of these professionals, who feel strongly about the need for maximum efforts to prevent such heartbreaking tragedies as, for example, the severe sexual abuse of a young child. And these discussions offered valuable insight into practical considerations worth taking into account. Yet in the end, the points raised with us in this regard did not persuade us to overturn the previous, considered judgment, based on extensive research and wide consultation with other experts by the Reporters, the Council, and the membership, which has led to our conclusion that these public-access policies are unjust and counterproductive, even in terms of the public-safety goals they purport to serve. We had hoped to find some common ground, but ultimately it was simply not justified to modify the central judgments to which these groups most strongly objected.

The remaining point to note in connection with this overview is that the discussions of the past four months, along with the further research and further reflection that they prompted, did produce a number of less central, but nonetheless significant substantive revisions. The remainder of this memo summarizes these modifications, which TD 6 presents for membership consideration.

1. Definition of Consent (Section 213.0)

The Department of Justice, among others, criticized two features of the Draft’s definition of consent—the provisions stating that both a complainant’s “inaction” and a complainant’s failure to resist may be considered in determining whether consent is present. This language, the Department of Justice argued, “would effectively place the onus on the victim to manifest physical or verbal non-consent, rather than on the actor to secure the victim’s consent, creating the risk that factfinders will erroneously conclude that a victim who was frozen by fear was communicating consent.”

The judgment that inaction can sometimes, in the context of all the circumstances, be relevant evidence of consent was intensely debated by the Institute. It is central to the multifaceted definition of consent that a majority of the membership ultimately supported, and it cannot be reconsidered without reopening a contentious issue that has been considered on multiple occasions and then settled. However, the language stating that in addition, failure to resist can also be considered, seems either redundant or potentially—and unnecessarily— misleading. TD 6 therefore simplifies the wording of Section 213.0(2)(e). It removes the language drawing heightened attention to failure to resist but continues to make clear that inaction can be considered, and of course inaction includes a failure to resist.

2. Sex Trafficking (Section 213.9)

A. Fraud.

Many comments criticized the Draft’s rejection of the Federal Trafficking Victims Protection Act (TVPA) provision that treats every instance of fraud as a covered form of coercion. That approach is incompatible with MPC principles. The reach of fraud in a sexual context makes it unacceptably broad and vague as a basis for liability, as the Comments to Section 213.9 fully explained. TD 6 preserves the Draft’s more limited approach to liability in cases of fraud.

B. Persons who advertise the availability of commercial sex with a trafficking victim.

Many comments criticized the Draft’s failure to mention advertising as a basis for a Sex Trafficking conviction, and some comments incorrectly inferred that the Draft conferred immunity on advertisers. In fact, other provisions of the MPC do punish “Promoting Prostitution” (Section 251.2(2)). But since many readers will look upon Article 213 as a free-standing proposal, there is merit in making this theory of liability explicit within Section 213.9.

The critics insisted that Section 213.9 should, like the federal TVPA, treat the advertiser as guilty of the primary Sex Trafficking offense. But MPC principles of proportionality argue against equating the guilt of someone who advertises sexual services with the person who (for example) recruits or harbors the trafficking victim. The revised draft therefore imposes liability for advertising, but only when the advertiser knows the trafficked status of those being advertised, and only as a separate offense which, unlike Sex Trafficking itself, is not registrable.

C. Persons who patronize a trafficking victim.

Many comments criticized the Draft’s failure to include patronizing (as does the Federal TVPA) as sufficient to support a conviction for Sex Trafficking. The problem is somewhat similar to that presented by the advertiser. Other provisions of the MPC do punish (albeit in outdated, unacceptable language) the offense of “Patronizing Prostitutes” (Section 251.2(5)). But many readers will look upon Article 213 as a free-standing proposal. It is therefore worth making this theory of liability explicit within Section 213.9. But TD 6 rejects the critics’ proposal to follow the federal TVPA in placing within the same offense the “john” and those who, for example, directly engage in recruiting or harboring the trafficking victim. Instead, Section 213.9(4) makes patronizing a separate offense, graded at a lower level and not subject to registration. And of course the “john” could be punishable under other provisions of Article 213 if aware that the other person was coerced or underage.

D. Complicity.

The apparent absence of this basis for liability was another frequent criticism, prompted by unfamiliarity with the structure of the MPC, which provides for accomplice liability in connection with all substantive MPC offenses. Here too there is merit in making this theory of liability explicit, which TD 6 does in revised Section 213.9(5). That offense is graded at a lower level than the primary offense of Sex Trafficking and is not subject to registration.₁

3. Grading

The discussions described above, together with further reflection and study, identified four instances (three of them involving offenses against minors) in which the grading classifications in TD 5 understated the appropriate grading of the offense:

a. Sexual Assault of a Legally Restricted Person (Section 213.3(3)): TD 5 classified this offense as a felony of the fifth degree (benchmark three-year maximum), a judgment that can be legitimately criticized as deprecating the seriousness of this offense. Accordingly, TD 6 raises the grade of the offense to that of a fourth-degree felony (five-year maximum).

b. Sexual Assault of a Minor (Section 213.8(1)): TD 5 classified this offense, which involves sexual penetration or oral sex, as a fifth-degree felony (three-year maximum) in the case of actors younger than 21. This understates the gravity of the offense when the actor is mature and the minor victim is a very young child. TD 6 therefore raises the grade to that of a fourth-degree felony (five-year maximum) when the actor is more than 10 years older than the child (for example, when the child is 6 and the actor is 17), and it raises the grade to that of a third-degree felony (10-year maximum) when the child is 11 or younger and the actor is 18, 19, or 20 (not just when the actor is 21 or older, as TD 5 required for grading at the third-degree felony level).

c. Fondling a Minor (Section 213.8(4)): Fondling is an exceptionally serious form of sexual contact, involving prolonged contact with or manipulation of the genitals of a child under 16. TD 5 classified this offense as a fifth-degree felony (three-year maximum) for all instances involving an actor younger than 21. This understates the gravity of the offense when the actor is mature and the minor victim is a very young child. TD 6 therefore raises the grade to that of a fourth-degree felony (five-year maximum) when the actor is more than 10 years older than the child (for example, when the child is 6 and the actor is 17), and when the child is 11 or younger and the actor is 18, 19, or 20 (not just when the actor is 21 or older, as TD 5 required for grading at the fourth-degree felony level).

d. Offensive Sexual Contact with a Minor (Section 213.8(6): TD 5 treated this offense as a misdemeanor (one-year maximum) when the actor is younger than 21. Again, this classification understates the gravity of the offense when the actor is mature and the minor victim is a very young child. TD 6 therefore raises the grade to that of a fifth-degree felony (three-year maximum) when the child is 11 or younger and the actor is 18, 19, or 20 (not just when the actor is 21 or older, as TD 5 required for grading at the felony level).

4. Collateral Consequences – Obligation to Register (Sections 213.11 & 213.11A)

As discussed above, the revised Draft rejects the strongly pressed argument that the Draft should endorse a public website listing persons convicted of sexual offenses and unrestricted public access to much of the personal information held in sex-offense registries. Instead, the Draft preserves TD 5’s commitment to eliminating community notification and unrestricted public access, so that the function of the largely confidential registry would be limited almost entirely to aiding law enforcement investigation of sexual crimes. To the extent that this approach can win acceptance, registration by itself will impose far fewer burdens on registrants, and the obligation to register, though by no means inconsequential, will be a far less momentous consequence of conviction. But it could jeopardize that acceptance to preclude, as did TD 5, registration of persons who commit certain very serious sexual offenses. Therefore, although TD 6 continues to preclude across-the-board registration of all Article 213 offenses, as federal law and the law of most states do, it extends the obligation to register to persons convicted of the following serious sexual offenses that were not classified as registrable in TD 5:

a. Sexual Assault by Physical Force or Restraint (Section 213.2): This offense previously was registrable only after a prior felony sex-offense conviction. Yet this violent offense always involves proof of an actor’s conscious awareness of using a threat of physical force or restraint to pursue a sexual objective not welcomed by the other person. Accordingly, registration—but solely for the use of law enforcement— is appropriate, even upon the first conviction for this offense.
b. Sexual Assault of an Incapacitated or Vulnerable Person (Section 213.3(1) & (2)): In TD 5, Sexual Assault of an Incapacitated Person was classified as registrable only after a prior felony sex-offense conviction, and Sexual Assault of a Vulnerable Person was never registrable. Yet both offenses demonstrate a callous willingness to exploit the incapacity or vulnerability of another person, and therefore registration— but solely for the use of law enforcement—is appropriate for both offenses.
c. Aggravated Offensive Sexual Contact (Section 213.7): Under TD 5, this offense was never registrable, even when the sexual contact was perpetrated through use of aggravated physical force, such as force that is capable of inflicting death or serious bodily injury. This is a legitimately criticized judgment, given the seriousness of the underlying offense conduct. Although that conduct involves only sexual contact short of penetration or oral sex, the behavior targeted is just as violent or abusive as that covered by Sections 213.1, 213.2, 213.3(1), and 213.3(2), all of which are registrable. TD 6 therefore classifies this offense as registrable when it involves physical force, physical restraint, an incapacitated person, or a vulnerable person under circumstances that would violate Sections 213.1, 213.2, 213.3(1), or 213.3(2) in a case of sexual penetration or oral sex.
d. Sexual Assault of a Minor (Section 213.8(1)): Under TD 5, this offense was registrable only when at the time of the offense the actor was 21 or older and the minor victim was under 12. This restrictive approach to registration is subject to legitimate criticism as applied to cases not meeting these requirements when the actor nonetheless is much older than the minor victim, and when, for example, the victim is only 11 years old. Therefore, TD 6 classifies this offense as registrable when, in addition to the circumstances covered in TD 5, it involves an actor who is more than 10 years older than the minor, or at least 18 when the victim is a child younger than 12.
e. Exploitative Sexual Assault of a Minor (Section 213.8(3)): Under TD 5, this offense was never registrable. Yet it involves seriously concerning behavior—sexual penetration or oral sex when the minor victim is under 18, the actor is more than five years older, and the actor holds a formal position of authority that impairs the minor’s ability to form an independent judgment whether to consent. The highly publicized incidence of this kind of conduct among, for example, coaches responsible for training young athletes illustrates the legitimacy of treating this offense as registrable, as TD 6 now does.
f. Fondling a Minor (Section 213.8(4)): Fondling is an exceptionally serious form of sexual contact, involving prolonged contact with or manipulation of the genitals of a child under 16. Under TD 5, it was never registrable. This is a legitimately criticized oversight as applied to cases in which the actor is considerably older than a young child. The seriousness of the offense justifies making it registrable, as TD 6 now does, in cases where the actor was at least 10 years older than the child, or was at least 18 when the child was 11 or younger.
g. Aggravated Offensive Sexual Contact with a Minor (Section 213.8(5)). This offense involves sexual contact short of penetration or oral sex, when the minor is under 18, the actor is at least five years older, and the conduct would have violated Sections 213.1, 213.2, 213.3, 213.4, 213.5, 213.8((2), or 213.8(3) if it had involved sexual penetration or oral sex. Under TD 5 it was never registrable. Yet by definition it includes only conduct that involves physical violence or exploitation of an especially vulnerable minor. As such, it is appropriately classified as a registrable offense.
h. Sex Trafficking (Section 213.9(2)): Registration is typically viewed as a measure to permit heightened surveillance of persons who have been convicted of sexually motivated offenses. Under TD 5, Sex Trafficking was not classified as a registrable offense, primarily because the perpetrator’s motivation usually is more financial than directly and personally sexual. However, the covered behavior is always callously coercive or exploitative. Moreover, a common practice among persons convicted of this offense is to troll for potential victims at locations frequented by people who are underage or otherwise vulnerable to exploitation. There is therefore a legitimate justification for requiring registration, as TD 6 now does, in order to facilitate heightened law enforcement attention to persons who may return to this behavior when they reenter society after serving a sentence for this offense.

5. Collateral Consequences – Confidentiality (Section 213.11H)

Section 213.11H of TD 5 permitted disclosure of registry information only to law enforcement agencies that request the information in connection with the investigation of a specific criminal offense. The discussions described above focused intensively on critics’ view that confidentiality was appropriate only for small categories of unusually sensitive information (e.g., the registrant’s social security number and the names of victims); critics sought to replace the Draft’s presumption of confidentiality with a general preference for unimpeded public access to extensive amounts of registry information. As explained above, that approach is incompatible with policy judgments central to the Draft and its underlying research and analysis. Nonetheless, the discussions drew attention to three discrete situations in which limited exceptions to confidentiality are justified and can be permitted without threatening the Draft’s overall objective of eliminating the unjust and counterproductive effects of registration as currently administered in the United States. Accordingly Section 213.11H, as revised in TD 6, now permits narrow exceptions to confidentiality in these three limited situations:

a. To Victims (Section 213.11H(1)(a)(ii)). If the registrant, for residence, work, or study, moves into a locality where the victim of the registrant’s offense (or the parent or guardian of a minor victim of the offense) also resides, works, or studies, this new provision requires the law enforcement authority responsible for the registry in that locality to notify the victim (or the victim’s parent or guardian in the case of a minor victim) of the fact that the registrant who committed the offense resides, works, or studies in that locality.

This exception to confidentiality responds to the legitimate concern on the part of victim advocates that unawareness of this information, and the surprise that can result from unexpectedly encountering the perpetrator in the area, poses a threat to the victim’s sense of security and psychological well-being. Authorities may routinely provide this kind of information to victims in other ways (for example, at the time of release on parole), but that solution would not cover cases when (for example) the perpetrator of the offense initially settles in an area far from the victim and later moves into the area where the victim lives. The exception is a narrow one: The disclosure must extend no further than to the limited fact that the perpetrator of the offense is present in the locality; it must not include other details, such as the address where the registrant resides, works, or studies.

This limited disclosure authority permits the Draft to meet an objection that has wide appeal, without compromising its commitment to confidentiality generally.

b. To the United States Marshal’s Service (Section 213.11H(1)(a)(iii)). TD 6 now permits sharing with the United States Marshal’s Service the international travel plans of any registrant convicted of a sexual offense involving a minor, in order not to impede the Service’s responsibilities under International Megan’s Law. Even though the Marshal’s Service is a law enforcement agency, such disclosure would fall outside the scope of the limited law-enforcement disclosures permitted by TD 5, where Section 213.11H permitted disclosure only “to aid in the investigation of a specific criminal offense.” This new exception to confidentiality is nonetheless consistent with the original intent of Section 213.11H and the balance it strikes, because it permits this law-enforcement-related function, to which the U.S. government and many other nations are committed, without creating the unduly wide disclosure loophole that would arise if Section 213.11H’s confidentiality principle were made inapplicable to sharing of registry information with law enforcement agencies generally for any purpose.

c. To State Entities to Facilitate Criminal-History Background Checks (213.11H(1)(a)(iv)). Private-sector organizations and individuals that serve vulnerable populations have a justifiable need (and often a legal duty) to obtain criminal-history background information on potential employees and volunteers. TD 5 aroused passionate opposition from many who held the erroneous (but hard to dislodge) perception that the Draft would pose an insurmountable obstacle to meeting this legitimate need. There is little public appreciation of the fact that sex-offense registries are ill-suited to serving as a background-check mechanism and that other, more effective regimes are generally available.

Nonetheless, public concern about this perceived need is strong, and if the Draft were silent on the subject, it could leave an impression of a major weakness in Article 213’s confidential registry system. Moreover, for a state where existing background-check procedures have significant gaps, Article 213 would be incomplete if it simply told the state to fill those gaps without showing specifically how this should be done.

For that reason, subparagraph (1)(a)(iv) creates a narrow background-check exception to confidentiality. It does not permit disclosure of registry information directly to private-sector organizations and individuals, even those who have a legitimate need to know. Instead, it provides that registry information can be conveyed to an appropriate state background-check agency. That agency in turn will perform the necessary background-check investigation in accordance with specific protocols for which subparagraph (1)(a)(iv), together with its Annex, offers a comprehensive template. The state agency is then charged with passing on the background-check results to prospective employers and/or those who apply for relevant positions as employees or volunteers. The Annex shows, and the accompanying Reporters’ Notes explain, how this system would provide thorough and complete background-check information, extending to all offenses of potential concern, while preserving the maximum feasible degree of privacy for affected registrants.

To request copies of Tentative Drafts approved by ALI membership, please email communications@ali.org.