Monday, May 2, 2016
With the American Law Institute’s annual meeting scheduled to begin May 16, critics of the draft provisions on sexual assault are doubtless considering what amendments to offer. Without slighting the other possibilities, let me suggest one: reverting to the approach of previous drafts that separated the “no-means-no” provision from the provision forbidding penetration in the absence of “consent” without objection, with the latter crime punished at the misdemeanor level.
Passing this amendment would by no means cure the draft. The consent provision would still impose liability in a way inconsistent with the approach of the Model Penal Code generally, as explained more fully in my previous pieces here, here, and here. But if the membership is intent on recasting the “MPC” as the “Manual of Political Correctness,” better for that to occur at the misdemeanor than at the felony level.
The feasibility of separating these crimes is clear. Through many iterations, the draft separated the crime of sex without consent from sex over express objection, applying more serious penalties to violation of the no-means-no rule. The penalties for sex without consent started at 5 years in the October 2013 draft—a penalty remarkably characterized by the commentary to that draft as “low.” But through subsequent reconsideration, the penalty dropped, and by the April 2015 draft, the crime was a misdemeanor.
These crimes were merged, and the penalty for sex without consent increased to the fourth degree felony level, as part of the December 2015 draft that also rebranded the project’s “affirmative consent” standard as a “contextual consent” approach. I previously outlined here how little this rebranding changed substantively.
Why merge the absence of consent crime with the no-means-no crime? The current draft offers just the following misdirection: the previous structure, treating the crimes separately, “was thought to imply that the [absence of consent] offense would necessarily punish the mere absence of affirmative consent in situations where the conduct was not unambiguously ‘against the will.’” But nothing in the merged offense requires protest, verbal or otherwise, as a requisite for conviction. Verbal protest remains, as before, a sufficient-but-not-necessary condition of liability. That judgment is sound, as I’ve argued before. But it is also inconsistent with the draft’s “argument” in favor of merging the offenses.
So the draft’s argument for merging the offenses doesn’t work. Moreover, if the change from “affirmative consent” to “contextual consent” were really meaningful, increasing the maximum penalty for the offense from a misdemeanor to five years in prison would substantially undermine the significance. The “contextual consent” standard is still a vague one. How many defense attorneys will counsel their clients that they should take their chances on winning acquittal under this vague standard rather than accepting an offer to plead in return for a modest sentence—what would have been within the maximum if the no-consent crime remained at the misdemeanor level?
A cynic might say that the best case against moving to separate these crimes and adjust their penalties is that the draft’s critics would be doing exactly what the drafters want. We already know from past drafts that the drafters regard as acceptable a separate no-consent crime with misdemeanor penalties. Perhaps the drafters have made their latest move to give the critics a chance to “improve the draft” by returning it to its previous versions. The critics can then declare victory, while the drafters get what they want.
At most, though, this argument would only counsel that the separate-crimes motion should not be the first one. If more central efforts to fix the draft fail, however, it remains an important one.