Although the 2020 Annual Meeting was cancelled this year, the Reporters produced the fourth Tentative Draft (TD4) of Model Penal Code: Sexual Assault and Related Offenses (MPC:SA) and they are looking forward to receiving written comments.  The Draft includes most Sections of the project, for example, Sections 213.8 (Sexual Offenses Involving Minors) and 213.11 (Collateral Consequences of Conviction) are not included. This article summarizes certain portions of the 1962 Model Penal Code (1962 Code) that are integral to understanding Sections of MPC:SA.

The MPC:SA will replace Article 213 of the 1962 Code. Except where expressly stated, MPC:SA should be read and understood to follow the provisions and definitions found within the 1962 Code.

Where does the MPC:SA diverge from the 1962 Code?

At the 2016 Annual Meeting, ALI members approved a definition of “consent” as that term is used in what will be the new Article 213.  This new definition differs from “Section 2.11 – Consent” of the 1962 Code. Learn more about the evolution of the “consent” definition in MPC:SA.

Revisions to the General Provisions of the 1962 Code

“In the process of revising Article 213, some members of the Institute advocated for re-examination of the existing provisions of general applicability. However, the Institute decided against reopening longstanding and serviceable definitions in favor of marginal improvements. Rather, revisions or adjustments pertaining to the general provisions of the 1962 Code were made only where important substantive reasons demanded.” (TD No. 4, p. 16)

 
Additionally, for the new Article 213, the 1962 Code Subsection (2) of Section 2.08 (Intoxication) is not presumed to apply. Instead, the revised Article expressly encourages the application of the general provisions of the criminal law and rules of evidence of the jurisdiction in resolving questions about the relevance and admissibility of evidence of intoxication.

TD4 grades each offense according to the template adopted in the Model Penal Code: Sentencing project, and thus attaches associated punishments for each of the offenses. The grading scheme of TD4 thus departs from the 1962 Code, but aligns with the recommendations in the new Model Penal Code: Sentencing, specifically Section 1.02(2) and Articles 6 and 7. As the Commentary to TD4 explains, the 1962 Code’s approach to sentencing was a product of its time, and views about punishment have since shifted in important ways.

MPC:SA is conceived as a part of the comprehensive Model Penal Code, which also includes the MPC Sentencing project.

Overview of Select 1962 Code Provisions

The foundational concepts that were first expressed in the 1962 Code have found widespread support in state criminal law. But those who have not studied every section and definition of the MPC may benefit from a review of several concepts integral to understanding TD4. The following is a brief overview of several pertinent provisions of the 1962 Code (see pp. 16-28 of TD No. 4 for a more in-depth discussion).

Gender-neutral Language in MPC:SA

“The parts of the 1962 Code that are essential interpretive principles in understanding and applying revised Article 213 are reproduced before the provisions of the revised Article. In restating those principles, the revised Code reprints verbatim the language adopted by the Institute in 1962, with one exception. The 1962 Code used gendered language and defaulted to the male pronoun as a shorthand for all persons. The version reprinted with revised Article 213 replaces this language with gender-neutral language.” (TD No. 4, p. 16)

 
Actus Reus (Model Penal Code Section 1.13)

1962 Code Subsection 1.13(9) identifies the three kinds of actus reus elements found in criminal statutes:

(9) “element of-an offense” means (i) such conduct or (ii) such attendant circumstances or (iii) such a result of conduct

(a) is included in the description of the forbidden conduct in the definition of the offense; or
(b) establishes the required kind of culpability; or
(c) negatives an excuse or justification for such conduct; or
(d) negatives a defense under the statute of limitations; or
(e) establishes jurisdiction or venue;

Conduct is further defined in subsection 1.13(5) as “an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions”; the 1962 Code has no separate definitions of “attendant circumstances” or “results.” Typically, an attendant-circumstance element refers to a surrounding condition or fact that is essential to liability. A result element is an element that refers to proof of a consequence or outcome caused by an actor’s conduct.

Statutory provisions with result elements inherently also require proof of causation, or the legal and factual link between the actor’s conduct and the alleged result. (Tentative Draft No. 4)

Mens Rea (Model Penal Code Section 2.02)

The 1962 Code provides clear rules about mental states or mens rea – the intention or knowledge of wrongdoing that constitutes part of a crime:

Model Penal Code § 2.02. General Requirements of Culpability. See all of Section 2.02 in PDF version at www.ali.org/mpcsection202

 (1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2) Kinds of Culpability Defined.

(a) Purposely.

A person acts purposely with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(b) Knowingly.

A person acts knowingly with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly.

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

(d) Negligently.

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

1962 Code Section 2.12: De Minimis Infractions

Section 2.12 De Minimis Infractions of the 1962 Code “affords a basis for judicial dismissal of prosecutions deemed too trivial or inconsistent with the purpose of the law infringed to justify criminal sanctions. As the Reporters’ Note explains, provisions of this kind have particular application to trivial violations of sex-offense laws. Although de minimis dismissals are uncommon in current law, a court’s power to dismiss a prosecution for a technical but insignificant infringement of the law remains an important safeguard against prosecutorial overreach and thus merits inclusion in the revised Article 213.” (Tentative Draft No. 4, p. 26)

 
The 1962 Code then explains in Subsection (3) how to interpret the code if no mental state is specified, and in particular requires proof of at least a reckless mental state (explicitly rejecting the floor of negligence) when a statute does not explicitly contain a contrary mens rea.

(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

Subsection (4) provides that a mental state expressly stated for one element is presumed to apply to all the other elements, absent a plain contrary legislative purpose:

(4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

1962 Code Section 2.02(1): Minimum Requirements of Culpability

1962 Code Section 2.02(1) states that culpability requires proof of every material element along with an accompanying culpable mental state:

Section 2.02. General Requirements of Culpability.

(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

 
Subsection (5) makes it unnecessary to expressly include the lesser mens rea when a greater mens rea is required:

(5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.

Relationship between Causation (MPC Section 2.03) and Mens Rea (From Tentative Draft No. 4, pp. 23-25)

Causation serves a core role in determining the scope of liability for a number of offenses defined in Article 213, including the most serious offenses of Sexual Assault by Aggravated Physical Force or Restraint. Doctrines of causation have longstanding pedigree in American law, and the concepts of “but for” and “proximate” or “legal” causation are familiar to every first-year law student.

Section 2.03 is the 1962 Code provision governing causation. Section 2.03(1)(a) embodies the familiar requirement that a result be the “but for” cause of the actor’s conduct, and Section 2.03(2) and (3) states the Model Penal Code’s preferred formulation for foreseeability, which includes that the result not be “too remote or accidental in its occurrence” to have a “just bearing” on liability or the gravity of the offense. Section 2.03 further provides additional guiding parameters. It states the basic principle that a result is not “too remote or accidental” if it is substantially the same as that designed, contemplated, or within the range of risk apprehended. Within established principles of causal culpability, an actor may be liable not only when the result is precisely that contemplated but also when it is substantially similar in the ways specified. Section 2.03 provides that the causal chain is not broken when: (i) only a different person or property within the range of risk is harmed; and (ii) the harm that results is less serious than that contemplated. The 1962 Code sets out separate Sections for these principles depending on whether the result was designed or contemplated (for situations in which an actor is purposeful or knowing as to a result), or within the zone of risk apprehended (for situations in which an actor is reckless as to a result).

Causation and mens rea often go hand in hand, although they serve different purposes and invoke different inquiries. Causation focuses on the chain linking the actions of the actor with a result required to be proven for liability under a statute. It effectively asks two questions: did the actor in fact cause the result (“but for” or “actual” causation); and is the connection between the actor’s conduct and the result sufficiently close that it is just to hold the actor responsible for that result (“proximate” or “legal” causation). This latter question is particularly important in cases in which the connection between the actor’s conduct and the result is attenuated, or in which intervening actors or causes contributed to the result, or in which a result is unexpected or unforeseeable. An enormous body of case law exists to guide these difficult but familiar questions of legal cause in criminal cases.

Mens rea, in contrast, focuses on the defendant’s expectations or intentions. For a result element, the mens rea element requires asking what the defendant’s mental state was with respect to producing the result that occurred. In theory, an actor may be purposeful about a result, knowledgeable, reckless, negligent, or held responsible even for results the actor had no reason to expect or took due care to avoid (strict liability). Causal inquiries intersect with mens rea inquiries in that our understanding of a person’s intentions often hinges in part on the probability that a result follows from conduct.

 
If you would like more information on any of the Drafts or projects, please contact us at communications@ali.org.

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Jennifer Morinigo

The American Law Institute

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