In June, the American Law Institute (ALI) voted to approve Tentative Draft No. 5 of the Model Penal Code: Sexual Assault and Related Offenses, much to the dismay of child-saving organizations in the U.S.
In a blog published Tuesday, the National Center for Missing and Exploited Children (NCMEC) called on the public to let their voices be heard before the next legislative session that could potentially approve the proposed penal code.
ALI is a private, non-profit organization comprised of judges, attorneys and law professors. It publishes restatements of the law, model codes, and principles to provide clarity and consistency. While influential with courts and state legislatures, ALI’s publications are not law and do not replace existing laws and statutes. Nine years ago, they undertook the task of revising penal code Section 213, which covers sexual assault laws, to “incorporate a more modern standard of sexual behavior and consent that looks beyond the previous focus on physical force, without making the model code excessively punitive.”
What they published and are seeking to have approved in Tentative Draft No. 5, however, does the opposite of that for children sexual assault victims, say multiple organizations, including NCMEC, RAINN, Rights4Girls, National District Attorneys Association, National Children’s Alliance and the National Center on Sexual Exploitation.
In letters written from these child-saving organizations to ALI, executives and members express concerns with proposed changes to who is required to register as a sex offender and who has access to that information, as well as weakened sex trafficking and reduced maximum sentences for offenders.
Sex Offender Registry: Who Does and Who Doesn’t
ALI’s revised code removes the following crimes against children from being registrable offenses: kidnapping/attempted kidnapping, online enticement, sex trafficking, and child sexual abuse material.
In 2020 alone, NCMEC says it received almost 80 reports relating to nonfamilial kidnapping, 37,872 reports relating to online enticement of a child for sexual abuse, 15,879 reports relating to child sex trafficking, and 21,669,264 reports relating to online distribution of child sexual abuse material.
The revised code also says first-time offenders of sexual assault by physical force are not required to registered.
“There is no rationale to deprive the first child victim of a sexual assault by physical force of full remedies under the law or to deprive society from the protective benefits of registration and notification of an initial crime of this type,” writes John Clark, NCMEC President and CEO, in a letter to ALI. “Offenders who commit sex crimes often are repeat offenders, and this is commonly accepted even though sex crimes are woefully underreported.”
Furthermore, the model penal code would prohibit members of the public from accessing sex offender registries, including child-serving businesses—like daycares—and other young-serving non-profit organizations, like the YMCA.
“Without this access, organizations will have no feasible ability to conduct basic background checks on volunteer applicants who will interact with children,” writes Clark. “As a result, children could be at tremendous risk, and youth-serving organizations may close down programs rather than provide unsafe environments for children.”
Lastly, the proposed code would no longer require the offenders who must register for the registry to provide key identifiers, including date of birth, internet identifiers, fingerprints, DNA samples, and driver’s license information. NCMEC argues these identifiers are necessary to avoid mistaken identity and to help keep children safe from registered offenders who are re-offending online.
Age Parameters
The revised code sets unprecedented age parameters regarding who is required to be added to the sex offender registry. The draft would only require registration where the victim is under 12 years old, the offender is over 21, and the offender is aware of the risk that the victim is younger than 21. Additionally, an offender who commits incestuous sexual assault of a child must register as a sex offender only if the child is under the age of 16.
In practice, this would mean a 50-year-old who rapes a 12-year-old would not be required to register as a sex offender, nor would a 20-year-old who rapes a toddler, nor would a 70-year-old grandfather who rapes a 16-year-old grandchild.
Weakened Sex Trafficking Definitions
The proposed model penal code concludes that the motivation for sex trafficking is primarily economic. Thus, it seeks to change the definition in the revised code to remove “advertising” from the list of conduct constituting sex trafficking, while entirely excluding sex “buyers.”
“Given the extensive use of the internet to facilitate sex trafficking, excluding advertising from the definition will essentially legalize the primary way traffickers solicit clients to abuse women and girls,” writes Scott Berkowitz, President of RAINN, and directors/CEOs of a handful of other organizations in a letter to ALI. “This also removes a significant avenue of prosecution that will often, if not always, have digital evidence to corroborate victim testimony.”
Berkowitz also argues that excluding criminal liability for buyers of sex with children absolves them from responsibility, when in fact buyers create the very demand that encourages—and finances—trafficking.
Lastly, the new language of the penal code requires that prosecutors now prove a defendant knew, and recklessly disregarded, the risk that the victim is younger than 18.
Reduced Sentencing Minimums
The draft recommends a maximum sentence of three years for rape of a minor where the offender is under 21, regardless of the victim’s age. This maximum increases to five years if the offender is 21 or over and the victim is 12 or older.
The draft also recommends an “affirmative defense of marriage to charges of sexual assault of a minor and related offenses.”
“This perpetuates the notion that child marriages are acceptable in today’s society,” writes Berkowitz. “While some states do still allow minors to marry, the American Legal Institute should take this opportunity, at a minimum, to establish an age floor for marriage, regardless of parental consent.”
‘Emotion’ Clouds Advocate Viewpoints
The Tentative Draft No. 5 of the Model Penal Code: Sexual Assault and Related Offenses document is the product of a 9-year collaboration between Stephen Schulhofer, a professor of law at NYU, and Erin Murphy, a professor of civil liberties at NYU.
But, as NCMEC points out, they did not consult with any advocates—no child victims, no trafficking survivors, no families or expert organizations. Instead, advocates’ views about sex offender registries were dismissed as based on “emotions or intuitions.”
“About that emotion and intuition—we need it now more than ever,” said NCMEC.