Legal Group Weighs Radical Expansion of Sex Crimes

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Imagine the following case: Two recent college grads meet in a bar, talk, begin kissing, and go to her apartment. After a little more talking, they resume kissing there. He undresses her and initiates sexual intercourse. She neither objects nor resists. He leaves, and they have no further contact. A month later, she files a criminal complaint with police, complaining that this was rape because she never expressed verbal consent and was physically passive.

Under the law as it has been from time immemorial, the woman's complaint would be rejected because her failure to say no or resist would be considered consent.

But under proposals that will be put to a vote on May 17 at the annual meeting of the American Law Institute, the nation's most prestigious drafter of model laws, the man could be charged with of a felony punishable by up to five years in prison. Under the letter of the proposed new law, his defense -- "she never said no, or stop, or I don't want this, and she never tried to push me away" -- would not save him from being convicted and imprisoned even if the jury and judge believed him.

These proposals, by a powerful faction of the American Law Institute, are deeply offensive to prominent civil libertarians, feminists, scholars and practicing lawyers, and have provoked a controversy that has deeply divided the ALI.

The proposals have also alarmed the National Association of Criminal Defense Lawyers (NACDL), which assailed them in a March 2016 statement as "an unconstitutional shifting of the burden of proof requiring the accused to prove that consent was affirmatively given."

The battle within the ALI matters because the radical new proposals would be a giant step toward states prosecuting and imprisoning people for sexual activities that they had reason to believe were consensual.

This comes after more than five years of the Obama administration effectively ordering U.S. colleges and universities to use guilt-presuming procedures to expel scores of young men for similar conduct and a wide range of other sexual activities.

The ALI proposals will, if adopted by its voting members, become part of its influential "Model Penal Code," which dates to 1962. Although such ALI proposals do not themselves have force of law, more than two-thirds of the states have in the past incorporated much or even most of the model code into their criminal laws.

And a vote by ALI members to adopt the current proposals might spur states to adopt them because the proposals would be widely spun as representing the enlightened consensus of legal profession leaders.

That spin would be misleading, because the radical ideologues pushing the current proposals are almost certainly a minority of the ALI's more than 4,500 no-doubt-distinguished members. But the outcome of the May 17 vote is in doubt because only members who take the trouble to travel to Washington, D.C., for the annual meeting can vote.

More than 100 ALI members have mobilized to oppose the proposals of the radical faction's leader, Professor Stephen Schulhofer of NYU Law School, the sex-crime project's powerful chief "reporter." The genteel but fierce debate has raged since 2013.

Schulhofer and "associate reporter" Erin Murphy explained in an “introductory note” to an earlier draft that they wanted to criminalize “commonplace or seemingly innocuous” behavior in order to change “existing social expectations” and reshape social norms.

This reflects their view that many millions of women are routinely pressured to have sex in ways that are not now—but in their view should be—illegal. The current Schulhofer draft would also impose unprecedented limits on defendants’ ability to introduce evidence suggesting innocence. The May 17 ALI votes will be on two key sections of the massive "Tentative Draft No. 2": the definitions of "consent" and of "Sexual Penetration Without Consent," a felony punishable by up to five years in prison.

Taken together, these and other provisions of the proposed draft that will be voted on in the future would impose something very like the "affirmative consent" standard that Schulhofer has championed for decades.

States including California, New York, and Connecticut have recently required universities to expel or discipline students for sexual misconduct if they are found to have had sex without obtaining affirmative consent. Many universities in other states have adopted similar rules.

The Schulhofer proposals would, as NACDL pointed out, effectively shift the burden of proof to the defendant by making him guilty of a sex crime -- even if the accuser neither resisted nor protested -- unless the he can prove that the accuser "communicated willingness" to engage in a specific sexual penetration or touching. The only other defense would be to prove that consent was implied by a prior sexual relationship or other special circumstances.

The proposed definition of "consent" specifies that “[n]either verbal nor physical resistance is required to establish the absence of consent.” It also implies that passivity does not show consent, and it is dangerously unclear as to when silent, mutual foreplay does and does not “communicate willingness.” Another section 213.0(d) adds that “[c]onsent may be revoked at any time…by behavior communicating that the person is no longer willing."

These and other proposals advanced by Schulhofer and his allies would give prosecutors who cannot prove that an actual assault took place an easy way to coerce guilty pleas. The many other proposed expansions of sex crime liability that are to be voted on at a future meeting or meetings include a proposal to make it a 10-year felony to have sex with a partner who is "in a state of mental torpor as a result of intoxication."

This provision would, as Professor Laird Kirkpatrick of the George Washington University Law School wrote, “criminalize a significant percentage of cases where parties who have been drinking subsequently have sexual relations.” Various dictionaries define “torpor” as including “listlessness,” “apathy,” “lethargy” and “having very little energy,” he pointed out.

Most states now treat sex with a person under the influence of alcohol as rape only when the accuser is passed out, or too incapacitated to be able to express refusal.

There is little dispute that the 1962 Model Penal Code's sex crimes provisions are outdated. A large majority of ALI members appears to support, for example, repeal of the 1962 code’s recommendations that no man should be convicted of a sex offense “upon the uncorroborated testimony of the alleged victim."

The Schulhofer faction’s power reflects the fact that the legal academy, from which comes a large and influential bloc of ALI members, is now ideologically to the left of the vast majority of the nation’s population on a host of contentious social issues. The brilliant—but ideologically extreme—Schulhofer was made the chief reporter of the sex-crime project in 2012, after he had circulated a “Prospectus for a Project of Revision.” Critics charge that it provided very little notice that he would use as a blueprint the same wish list of radical changes he had called for in a 1998 book, “Unwanted Sex: The Culture of Intimidation and of Law,” which very few ALI members seem to have read.

The reporters' more than three dozen official advisers include many academics, one trial judge with experience trying rape cases, and very few criminal defense lawyers with such experience.

Schulhofer has expressed indifference to the likelihood that his proposals would ruin the lives of large numbers of innocent people. It is better, he has said, to risk that “many” men be convicted of rape for initiating sex without first obtaining “positive agreement" from their partners—even if the evidence shows that the partners in fact wanted sex—than to allow men accused of rape to escape conviction if their accusers never said no.

He has also suggested that coercing guilty pleas by essentially shifting the burden to rape defendants to prove their innocence is part of his strategy.

More than 100 ALI members said in a January 19, 2016 letter to ALI leaders that the Schulhofer proposals would make felons of people who had no reason to doubt that their sex partners had consented, and would create “whole new categories of ‘statutory rape’ under which consenting, competent adults are prohibited from consenting and are statutorily deemed incompetent to consent.”

NACDL added, in its March 2016 statement: “Rather than requiring the prosecution to prove that consent was not given, by definition, the offense would be proved merely upon the proof of a sex act with nothing more. …  Sexual communication is often stilted by common emotions including shyness, embarrassment, shame, self-consciousness, and anxiety. Sexual encounters are often fueled by or accompanied by alcohol or other intoxicants.

“While increased communication about sexual behavior is a generally beneficial aspiration it cannot and should not be accomplished through the use of criminal laws,” it continued, adding that rape convictions carry “grave and life-altering penalties.”

Other provisions of the ALI’s March 2016 preliminary draft, to be voted on at future meetings, would:

--Make it a crime even for a spouse or “intimate partner” to initiate sex unless he could prove that he “reasonably believed that the complainant would welcome the act.” This standard could, critics say, invite further proliferation of the strategic accusations of sexual and child abuse that already plague divorce and child custody matters.

--Make a felon of anyone providing professional treatment for any mental or emotional health problem, no matter how slight, to a mature adult if the two develop a mutual romantic attachment that leads to sexual penetration.

Perhaps the most concise indictment of the Schulhofer-Murphy project came from Professor Charles Fried of Harvard Law School, a former solicitor general of the United States, in a non-public mid-2015 letter to ALI Director Richard Revesz:

“Instead of clarity and reasonableness,” Fried wrote, “ALI [is] proposing a codified standard that will surely be ignored by most, will be subject to general ridicule, celebrated only by a small cadre of ideologues in the grip of a theory, and if enacted would be an invitation to the kind of extortionate, discretionary, discriminatory enforcement that it is a principal aim of a Model Code to prevent.”

 “My preference would be to see the whole project put on a lengthy pause rather than inundating us with drafts at an unusually fast pace,” he added later. “I have little confidence in these Reporters to produce a useful work by continual tinkering.”

Meanwhile, another ALI initiative—the “Project on Sexual and Gender-Based Misconduct on Campus”—is in the works. It is not yet clear how far-reaching it might be.

Stuart Taylor Jr. is a Washington writer, lawyer and nonresident senior fellow at the Brookings Institution.

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