This project is one that has very strongly felt, deeply held beliefs on both sides. It is an issue that has passionate defenders, advocates on behalf of victims, many of whom have gone a long time without the justice system treating their claims as legitimate or hearing them in court. Then, on the other side, there are many voices that are strongly defending what I would call sexual freedom-the ability to make mistakes, to have bad sex, to have regrettable sex, but maybe not criminal sex. Trying to strike the right balance to make sure the code is progressive, that it’s forward-looking, that it’s something that in 50 years people will look back on and think, “That’s a viable code today. We still can work from this code,” is a real priority of ours. At the same time, we don’t want to get too ahead of ourselves. – Erin Murphy, Associate Reporter
This project is re-examining Article 213 (Sexual Offenses) of the 1962 Model Penal Code. Currently, the project can be divided into three parts: main substantive code that would apply to adult and child victims; contact offenses; and evidentiary and procedural recommendations, including on sentencing and collateral consequences.
The project has been presented to membership at the Annual Meeting four times. In previous drafts, several sections of the project were presented for discussion and debate. At the 2016 Annual Meeting, two sections were submitted for approval. Both deal with consent in the context of sexual penetration: Section 213.0(3) defines “consent” and Section 213.2 defines the offense of Sexual Penetration Without Consent.
An amended version of Subsection 213.0(3) was presented in a motion that passed by a voice vote and the membership approved the amended language. The amended version will be presented to the ALI Council at its next meeting in October 2016.
Stephen J. Schulhofer
Reporter, Model Penal Code: Sexual Assault
Stephen J. Schulhofer is the Robert B. McKay Professor of Law at NYU Law. He is one of the nation’s most distinguished scholars of criminal justice and is the author of Unwanted Sex: The Culture of Intimidation and the Failure of Law (Harvard University Press).
Erin E. Murphy
Associate Reporter, Model Penal Code: Sexual Assault
Erin E. Murphy is a Professor of Law at NYU Law. Her research focuses on technology and forensic evidence in the criminal justice system. She is a nationally recognized expert in forensic DNA typing, and her work has been cited multiple times by the Supreme Court.