ALI actions on sexual assault draft

The American Law Institute has listed on its website actions proposed and taken at its recent annual meeting related to the draft revisions of the Model Penal Code related to sexual assault. The definitions of "sexual penetration" and "oral sex" were approved as proposed. The most significant amendment from the floor was deletion of "recklessly" from proposed section 213.1, the "forcible rape" provision that includes sex caused by making an express or implied threat and carries enhanced penalties when the actor "causes serious bodily injury."

While "recklessness" is the Model Penal Code's default mental state and should usually suffice for criminal liability, the membership's action might be defended on grading grounds--a person who is reckless regarding whether conduct will be perceived as a threat, for example, might not be thought an apt candidate for conviction of a second-degree felony, even if someone who knows they are making a threat is.

Moreover, eliminating "recklessness" from 213.1 also cabins the effect of the drafters' apparent change of position regarding how the MPC's normal intoxication rules should apply to the new sexual assault provisions. I posted about that issue here. The MPC's imputation-of-recklessness-via-intoxication approach will not impact prosecutions under 213.1 after the membership's amendment. 

Other provisions still to be discussed do allow conviction for recklessness, however, and effectively expand the MPC's imputation rule, since the MPC did not allow, for example, convictions for sexual assault based on simple recklessness regarding consent. Given the prevalence of alcohol in sexual assault cases, the role of the intoxication rule remains important as the ALI project moves forward.