Model Penal Code:

Sexual Assault and Related Offenses

This project is re-examining Article 213 of the Model Penal Code, which was ahead of its time when approved by ALI in 1962, but is now outdated and no longer a reliable guide for legislatures and courts.
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The Reporter has revised the black letter of Tentative Draft No. 6 as a result of discussion and motions at the 2022 Annual Meeting, and the Council has approved the revisions. A document showing the changes is posted on the Drafts tab. The Reporter will make conforming changes to the Comments, consistent with the revisions to the black letter, and will prepare the official text of the project. An official text is expected to be published in 2024.

At the 2022 Annual Meeting, the following actions were taken on Tentative Draft No. 6:

  • A motion to amend the definition of “consent” passed.
  • A motion to remove entirely a definition of “consent” failed.
  • A motion to amend a portion of § 213.9(2)(a)(ii) failed.
  • A motion to amend § 213.9(5) failed.
  • A submitted motion to amend the definition of “coercion” to include “psychological threat of legal pressure” was agreed to by the Reporter and received no opposition from ALI members.
  • A motion to amend §§ 213.9(3) and (4) was split to consider separate motions:
  • The first part of the motion to make §§ 213.9(3) and (4) registrable failed.
  • The second part of the motion to change the grading of § 213.9(4) to a felony of the third degree with a ten-year maximum sentence failed.
     
  • A motion to amend § 213.11A. Registration for Law-Enforcement Purposes to add a new subsection (e) passed.
  • A motion to amend § 213.11H. Access to Registry Information was split to consider separate motions:
  • The first part of the motion to edit (a)(ii) failed.
  • The second part of the motion to add a new subsection (a)(iv) and renumber existing (a)(iv) to (a)(v) failed.
  • The third part of the motion to add a new subsection (a)(vi) failed.
  • The fourth part of the motion to add a new subsection (b) and (b)(i) failed.
     
  • An additional series of motions on § 213.11 was agreed to by the Reporter and received no opposition from ALI members, and subsequently passed: 
  • 213.11 to add a new subsection (5);
  • 213.11A to add a new subsection (4);
  • 213.11D to add a new subsection (5); and
  • 213.11D to delete subsection (1)(g).
     
  • A motion to withdraw in its entirely the revised Article 213 of the Model Penal Code from publication was discussed; members were instructed that in order to support the motion they should reject the motion to approve the draft.

The membership voted to approve Tentative Draft No. 6, subject to the amendments that were approved at the Meeting. 

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At its meeting on March 2, 2022, the Council approved the following material in Council Draft No. 12 and the revisions to that draft: Sections 213.0, 213.9, and 213.11-213.11J, and the grading changes in subsection (3) of Section 213.3 and subsections (1) and (4) of Section 213.8. The other material in Council Draft No. 12 requiring approval was approved at the January Council meeting.

At its meeting on January 20 and 21, 2022, the Council reserved consideration of the following sections and topics in Council Draft No. 12: Sections 213.9 and 213.11-213.11J, and grading and registration in Section 213.8. The Council approved all other Sections in the draft with provisions marked by an asterisk. The Council will continue its discussion of the reserved sections and topics at its March meeting.

At the 2021 Annual Meeting, 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. The following are details of the actions taken at the 2021 Annual Meeting:

  • 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.

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At the 2017 Annual Meeting, the definitions of “Sexual Penetration” and “Oral Sex” were discussed and approved as presented in the draft after a motion on each definition was presented from the floor and did not pass. There was discussion on 213.1, but there was not enough time for all motions on this section to be considered. The following are details of the actions taken at the 2017 Annual Meeting:

  • A motion to add “purposeful” to Section 213.0(1) failed.
  • A motion to replace “touching” in Section 213.0(2) failed.
  • A motion to move the mens rea from the end to the beginning of Section 213.1(1) was accepted by the Reporters as a friendly amendment.
  • A written motion regarding Section 213.1 was made into two motions from the floor: (i) a motion to remove “recklessly” from Section 213.1(1) passed; and (ii) a motion to add the phrase “without the consent of the other person” to Section 213.1(1) was not reached due to lack of time.
  • As previously announced, the meeting had to stop at 5:15 p.m. for Annual Dinner set-up, before discussion of the second motion regarding Section 213.1, or discussion of Section 213.1 generally, was complete.
  • A Boskey motion to approve Sections 213.0(1) and 213.0(2) passed. 
  • Section 213.1 will be reviewed at future meetings.  

Note: The summary above, which was initially posted immediately following the Annual Meeting, was corrected after staff received and reviewed the transcript of the proceedings. 

At the 2016 Annual Meeting, the definition of "Consent" was approved as amended. The Council approved this definition at its October 2016 meeting.

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All draft approvals are subject to the discussion at the meeting and usual editorial prerogative.

For an in-depth description of this project, please visit the Model Penal Code: Sexual Assault page of the The ALI Adviser.

Project Video

Project Reporter Stephen Schulhofer and Associate Reporter Erin Murphy discuss the project in this short video:

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