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CommentaryResearch

American Law Institute Adopts Revisions to Model Penal Code That Include Major Changes to Sex Offense Registries

[Ira Ellman of ACSOL – 6/9/21, UPDATED 6/11/21]

On June 8, 2021 the membership of the American Law Institute gave its final approval to a revision of the Model Penal Code’s chapter on Sexual Assault and Related Offenses. This project was initially authorized by the ALI Council in 2012.  The appointed Reporters, Professors Stephen Schulhofer and Erin Murphy of the New York University School of Law, began work immediately, preparing drafts for discussion with the appointed project Advisors and the Members’ Consultative Group. As is normal with ALI projects, these groups included practicing attorneys, judges, and scholars who are experts in the subject. Portions of the project were presented to the full membership at the annual meetings in 2014, 2015, 2016, and 2017. The ALI Council agreed on January 22 to recommend the membership’s final approval of the completed project. Tentative Draft Number 5 was then considered and approved by the Membership at the 2021 annual meeting held on June 8. The Reporters will now prepare the final published version reflecting the discussion at the Annual Meeting as well as editorial improvements.

The complete Tentative Draft, 600 pages long, addresses the substance of the full range of sexual assault crimes. It contains the Blackletter provisions setting forth the code’s statutory language for each section, official Comments interpreting and explaining each section, and Reporter’s Notes providing background and citations to sources relied upon by the Reporters in the draft. The original version of the Model Penal Code was published by the ALI in 1962. It was and remains highly influential. According to Wikipedia more than half the states enacted criminal codes that borrowed heavily from the MPC, and even courts in non-adopting states have been influenced by its provisions. It was a forward looking document. One important and influential contribution of the 1962 MPC was the removal of noncommercial sexual acts between consenting adults, such as sodomy, adultery and fornication, from the criminal law. In 2001, however, the Institute concluded that revision of some portions of the 50-year-old MPC had become necessary. This project, revising the portions of the MPC addressing sexual assault, is one of three separate revision projects on different portions of the code. The original MPC contained no provisions on a sexual offense registry; the inclusion of that topic in the MPC is among the most significant revisions to it now approved by the Institute.

The MPC’s registry provisions are contained in 11 sections. Including an official comment providing an Executive Summary, they are set forth in the final 120 pages of Tentative Draft No. 5. While the MPC adopts something called a registry, its substance departs significantly from existing registry laws, federal and state, as the Comments acknowledge. Key differences are:

  1.  Many sexual offenses that are registrable in the federal and most state laws are not registerable under the MPC provisions, which provide that no offense is subject to registration other than those it specifies as registerable. Only these five offenses (as defined by other sections of the MPC) trigger a registration obligation:
    1. Sexual Assault by Aggravated Physical Force or Restraint.
    2. Sexual Assault by Physical Force, but only when committed after the offender had previously been convicted of a felony sex offense.
    3. Sexual Assault of an Incapacitated Person, but only when committed after the offender had previously been convicted of a felony sex offense.
    4. Sexual Assault of a Minor, but only when the minor is younger than 12 and the actor is 21 years old or older.
    5. Incestuous Sexual Assault of a Minor, but only when the minor is younger than 16.
  2. There is no public notification that individuals are on the registry, whether through a public website or any other means. Access to the registry is limited to law enforcement personnel. The knowing or reckless disclosure of registry information to others is a felony. .
  3. The maximum registration period for the small group who remain on the registry is 15 years, but those who do not re-offend, and comply with parole, probation, or supervised release conditions, are removed after ten years. Failure to register cannot be the basis of parole or probation revocation; it is punishable only as a misdemeanor offense.
  4. General rules that required location monitoring of persons convicted of a sexual offense are barred, as are most restrictions on residency, access to schools or the internet. Judges could impose such restrictions in particular cases, but only on persons currently required to register, and only upon an evidentiary showing that there are special circumstances in that particular case that justify it, and only for a limited period of time. In no case may a judge require public notification. Mandatory restrictions on employment applicable primarily to persons convicted of a sexual offense that are created by other state laws are not repealed by the MPC, but anyone subject to them may petition a court for relief from the employment bar.

The American Law Institute, established in 1923, is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. The current Council of the ALI includes 7 members of the United States Courts of Appeal as well as Justices on the highest courts of California, Arizona, Texas, and New Jersey. The recommendations of the ALI Council become the official position of the Institute when (as with these revisions to the MPC contained in T.D. 5) they are adopted by the members, which consists of leading attorneys, law professors, and judges who have been nominated and elected to membership.

 

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By adopting these significant revisions to the Model Penal Code, the ALI has planted an acorn that will one day grow into a mighty oak. We must be patient as that occurs. We must also ready ourselves for persuading Congress and our state legislatures to agree to these changes.

Thanks for the work you do, Janice!

After reading professor Ellman’s analysis, I am flabbergasted. This represents essentially a complete repudiation of the registry. The MPC contemplates a registry that pales in comparison to the existing monstrosity. Even if a state, or the feds, were to only partially adopt one of the four provisions, lives would change dramatically. Number three, which doesn’t affect registrants on a daily basis, lifts the onus of FTR. The other three provisions return the registry to something like it was originally intended.

I think the initial benefit from the changes will be at the federal level. It will now be much harder for the Justice Department to justify the new provisions we have been dreading. This will also provide political cover to polichickens who would never normally support loosening restrictions, no matter how rational. My feeling is that initial efforts should be directed at the feds, who are driving the train. Eliminating funding for states is now politically feasible. IML can be seen to serve no purpose, etc., etc. This is HUGE.

Veritas.

I may not live to see the downstream effects of ALI’s MPC revisions improve material conditions for California registrants. But I’m so glad history is moving in the right direction.

This is huge if it’s ever adopted (I doubt it due to America’s, historically vindictive nature). It makes totally sense, and it encourages good behavior since it allows ALL to see an end to years on the registry. Even they see this notion of it being “a right” to know of only where registrants live and only them is nonsense. The current registry is nothing more than sanctioned political persecution.

I’m not a lawyer but I think this is historical.

This is HUGE!!! I shall move to the first state that adopts the standards!!!

This. Is. Amazing. Thank you all for doing this!

This is all well and good, but it basically proposes to put registries back the way they were when they were first created. If that ever happens, it will only be a matter of time before legislatures start screwing around with them again and adding more crap to them, just like they did 10, 15, 20 years ago.

It’s remarkable that this proposed legislation, that is so far from what any states have and seems like a pipe dream to ever see enshrined in law, is actually close to what the original intent of registries was, decades ago, which itself was controversial, and is itself rarely seen in Western law. It’s amazing what a race to the bottom we’ve seen in American law since the barn door to registries was opened.

@literally nobody:
To be clear this is not legislation. It is, however, an agreement among legal professionals across the spectrum and nation, as well as up and down the “chain of command,” taking a position that things must change. SCOTUS has been known to quote from the MPC/ALI, so it does carry weight.

This is truly excellent! We must all be ready and willing to push legislatures to adopt these ALI proposals. They are a shining example of truth and justice successfully brought together for a better world.

A course correction to get the country back on the initial footing it was founded on and away from the direction is has been going. Thank you ALI!

This makes me happy. I might actually get to attend my daughter’s graduation one day.

Ok. I see that everyone is saying this great news and I believe that it is. Buttttt …. Now what? How do we see changes happening from this point forward? Do states still get to make harsh laws? Do I still have to stay registered in states that are lifetime even though my state is 15 years? Does every single law now have to be challenged? Does the federal government pass new amended laws and force states to cooperate? Is that even a possibility? How does one with knowledge in this chaos see the positive or optimistic changes for the future for us forced to register?

@?
That sounds like an old Batman tv show! I guess you have to stay tuned ! Same time, same channel!
Lol

Not to be a Debbie Downer, but congress can’t even agree on:
1.a voting rights bill
2.equal privileges and rights for LGTBQ
3.gays in the military
4.a woman’s right to her own body
5.if 1/6 actually happened

See where I’m going with this?

It’s awesome that scholars agree that the registry is a farce in its current form, but scholars are not the people that write these laws. Look at the way Politicians treat Dr. Fauci, and he is considered by the entire world to be THE authority on infectious diseases. You can’t convince someone that “The Iliad” is a work of literary masterpiece if they can’t even read. That to me is what this is. The ALI is telling arrogant, self serving people that they have it all wrong, and they aren’t listening.

I do see California legislature as well as other progressive states giving this more weight than dare I say, Florida?

Completely agree. Anyone with a brain who knows anything about the Hit Lists has known for a very, very long time that they are completely idiotic. Counterproductive stupidity. But facts and reality don’t matter. Most politicians are garbage.

It is insane just how dumb most people living in America are. They truly lost whatever minds they may have ever had. It’s like the whole world has been gassed with some kind of “stupid gas” or something.

The Hit Lists are nothing but a scheme being used by a bunch of sheeple, opportunists, and fleecers all lying together to try to feed off of millions of Americans. They are true enemies of moral people. But guess what? Those scumbags are not going to lower the quality of my family’s life. I’m feeding off of them.

I would keep the following in mind. Oregon, New York, and New Jersey adopt the entire MPC. They should be the first three states to adopt these changes. You could expect other progressive states to follow such as Colorado, and possibly some red states who like the idea of saving a ton of money. The rest should fall like dominos. I believe we are suddenly in a new phase of politics that is the “criminal justice reform” mindset. I believe there is s good chance we will see reform and quickly! In addition most states don’t follow federal SORNA laws because the the money the federal government withholds for non compliance is far less than the cost of a states full compliance. So Federal law doesn’t have much to do with this. Your state makes you a non registered offender, then your no longer an RSO. Your state is not taking action, move to another state. Cheers!

Oregon, New York, and New Jersey adopt the entire MPC.

New York charged and convicted me of sodomy because the victim was over 17. In order to get a conviction, they went with sodomy for me and incest for my co-defendant. Ironically she had the more serious charge and got Level 1 and I got Level 2, even our presentencing worksheets had her at a higher risk and me at Level 1, the judge decided against the worksheet and made me Level 2. Of course NY continues to raise the time for Level 2, I should have been off the list years ago.

If one state conforms to the ALI model, especially if it is California, then that starts the ball rolling. There’s a saying, “As California goes so does the country.”

Marijuana for recreational use is slowly becoming legal in many states. Eventually, the country will adopt it. Thus, I can see this happen with the ALI model. And with ACSOL fighting and winning at chipping away at the CA registry, it’s possible the ALI model will be accepted sooner. The fact that CA finally moved from all lifetime appointments to a tiered model is already a significant step. With the ALI model research, CASOMB, and the Ellman Doctors legal work of “Frightening and High” identifying SCOTUS used false information will make it easier for California to adhere to the science.

Also, FTR is only a misdemeanor aligns that the registry is civil scheme because sending one to prison for a civil scheme runs contrary to the civil aspect. There is a clear distinction between what is a civil penalty and a criminal penalty.

Some state is going to have to be the guinea pig, heavily lobbied to get there, and willing to open the potential flood gates of registrants wanting to move there. A small liberal state like mine (N.M) would be perfect, but how do you overcome the potential mass influx conundrum. Also, lobbying will have to include real world numbers regarding the benefits for changing the system. It would help if someone could put together a plan including the real world numbers and benefits for a particular state like mine so that legislators are able to see the benefits, and include how resources could be redirected. And there must be a clear and simple explanation to legislators and the public on why the changes will not weaken public safety, but will in fact enhance public safety by redirecting resources to prevention, and other needed areas. Legislators will need big time cover or they will never go for it!

Time to hold these politicians accountable for the harm they have caused to individuals, families, communities and the country. The chickens are coming home to roost and now is the time to Stand up, Speak up, and Show up!! Time to put politicians in the pressure cooker of truth, Justice and accountability of their lies!!

One can only hope.

Is 1(d) above a typo?

I remember there being 6 registerable situations, one where is the victim was under 16 (not under 12) and the person was over 21.

Or was this changed between December 2020 and final approval?

I verified this change is correct. This means that most “statutory” offenses are no longer registerable under the M.P.C. They now call “statutory” crimes sexual assault of a minor. Felony 5 (3 years minimum) is the victim is under 16, Felony 4 (5 years minimum) if the perp is over 21, and Felony 3 (10 years minimum) and registerable if the victim is under 12 and the perp is over 21.

Janice, are you able to comment how “assault” is defined in the above? Is the intent for it to be physical in all cases?

SR, below is a link to a 2019 draft copy of the new Model Penal Code. Part II describes variations of “sexual assault.” I believe the answer to your question is yes, and that all the sexual assault variants are physical.

https://www.aclumich.org/sites/default/files/field_documents/ali_model_policy.pdf

Veritas.

P.S. Try JohnDoeUtah’s link instead.

sounds like where I started 30 years ago in Cali , except this don’t offer life time registration , makes me feel hopeful , good feeling that

A bunch of people feel ALI is making a mistake on this change–and not for the reason one would reflexively think!

https://www.hivlawandpolicy.org/sites/default/files/ALI%20Letter%20on%20MPC%2C%20CHLP%202021.pdf

Thanks for the link, AJ. I agree with the assertion in the letter that registries should be entirely eliminated. However that goal is simply not feasible in any reasonable amount of time. The ALI is a very influential and respected group of legal scholars, judges and lawyers, which makes the modified MPC a powerful tool in the fight to change federal and state laws and policies.

I see it as an opening to introduce legislation, rather than simply fighting against that of others attempting to create ever more arbitrary punitive law. The battle can become offensive rather than defensive. Of course finding a sponsor for such bills is a different problem. lol

Veritas.

@Ed C:
I completely agree with you. I see the MPC change more as a weapon to use in lawsuits than with legislation. IMO, legislators for the most part won’t start carving up ML laws without a reason–especially since getting kicked out of office for being “soft on pedophiles” (they all like to be “hard”, don’t you know!) has a high chance of being the most immediate outcome.

I was shocked when I read the letter, as I expected it to be a bunch of people clamoring for ALI to make no changes for the better. (Well, when I saw Dobbs on the list, I knew it wasn’t going to be that.) I posted it more as a statement that, although a great step ahead, this ALI MPC change still has some nasty warts.

Good letter with great points, especially this one:

“The Draft’s proposal for a registry accessible only to law enforcement with the stated purpose to”facilitate high-priority investigations of serious sexual offenses” in fact would serve as a police“blacklist,” a surveillance scheme of dubious constitutionality. Those listed would become perennial instant suspects, much as other non-public registries functioned in the past.”

They should have just inserted the scene from Casablanca where the usual suspects is requested to be rounded up because LE will need scapegoats to start the investigation with before actually trying to do the real investigation to find the real perps.

Thanks for sharing this @AJ

I just wonder how long it will take the states to adopt the new law. And if they will adopt the new law?

It hasn’t been signed into a law yet.

And it won’t be signed into law as ALI is not a law proposing entity. These are guidelines for laws to be made from, not laws proposed to be discussed and signed into applicability. States can chose to use them verbatim or the principles of them in creating proposed laws for discussion and signature if voted as such.

Sent this over to both Utah House and Senate Committees and the DOC over a week ago, no response. Crickets.

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