American Law Institute’s “Stunning Expansion of Criminalization”

The American Law Institute, once a prestigious body of scholars and thinkers who strived to craft laws that better served societal needs, has been taken over in a bloodless coup by ideologues bent on recreating the law to suit their ideology. It’s not like I didn’t tell you this was coming.

As you are aware, the American Law Institute (ALI) has undertaken a review of the sexual assault provisions of the Model Penal Code. The undersigned members of ALI are concerned about the direction the project has taken. Although the drafts have generated little attention outside of the project itself and although the project has been criticized for late distribution of drafts (see e.g., ALI Reporter, Summer 2014 at 23), we hope that you will consider our concerns both before and during the upcoming Annual Meeting session on Tuesday, May 19 at 9:00 a.m. when Discussion Draft No. 2 dated April 28, 2015 will be considered.

It goes before the annual meeting tomorrow, and it’s everything a feminist college sophomore coed could dream of.  The predominant position on the ALI task force is progressive academics who want to turn the criminal law into a reflection of that which has overtaken colleges across the nation.  A minority group has been left to join in a letter to ALI to protest the capture.

If there is political consensus on anything in the United States today, it is the consensus that our government has overcriminalized and overincarcerated the American public.

Hardly a controversial position, given its bi-partisan recognition that Prison Nation isn’t something to crow about.  And yet:

That brings to the surface the real issue: overcriminalization and excessive punishment in the U.S. Code…. §1519 is a bad law — too broad and undifferentiated, with too high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: in those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code. (Id. at 18-19, dissenting on other grounds).

Against this political consensus and judicial backdrop, the current ALI draft is an extreme deviation, focused on expanding criminal sanctions for sexual behavior and expanding the problems cataloged by Justice Kagan.

To appreciate what they’re getting at here, it’s that there is little dispute that overcriminalization and overincarceration is not merely a problem, but a problem demanding immediate redress.  Except when it comes to sex.

Sadly, the minority letter is a bit, ahem, long-winded, providing examples rather than a clear assertion, so bear with me as I offer one of the examples provided:

To understand the draft, please consider a most common behavior in the following hypothetical: Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of “Criminal Sexual Contact” under proposed Section 213.6(3)(a).

How can this be? The draft explains:

Section 213.0(5) defines “sexual contact” expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched…. (Discussion Draft No. 2, Substantive Material, at 31).

The offense arises because Person A failed to obtain the draft’s requisite prior “positive agreement” to the “sexual contact.” Section 213.0(3). The draft repeatedly “makes clear that when a complainant’s behavior has been passive—neither expressly inviting nor rebuking the defendant’s sexual advances, that behavior cannot be considered sufficient to show affirmative permission.” (Discussion Draft No. 2, Substantive Material, at 54) Person A’s guilt is absolute because, “feeling romantically and sexually attracted” and feeling “a thrill as their hands touch,” Person A has no defense against the accusation that the touch included the “purpose of sexual gratification… or sexual arousal.” Section 213.0(5).

And it goes on to discuss the weak sauce of mens rea, the absurdity of relying on prosecutorial discretion to weed out silly applications of law, etc.  Ideological proponents, who are otherwise very bright people but magically go dopey when it comes to their emotional blindness, devolve to the false analogy in the hope that others will either share their ideological myopia or be stupid enough not to realize why the analogy fails.

The argument has been made—and no doubt will be repeated—that equating silence with unwillingness, as Section 213.2(2) does, “patronizes” or “infantilizes” women, treating them as if they were incapable of expressing their own desires. (Id.).

The draft defends this rule by equating it to a doctor obtaining “informed consent” before performing surgery (Id.), but it does not acknowledge any of the differences between the risks of surgery and ordinary human contact. Most importantly, the claimed analogy fails to recognize that medical informed consent is a precaution chosen by the doctor as a safeguard against possible civil damages for malpractice, not as a required behavior to avoid criminal liability.

And ultimately, the draft of the new model laws concedes that its goal is to re-engineer the sexual relations between the genders to suit their ideals.

The draft also acknowledges that it is not reflecting any existing social norm or consensus about behavior that should be deemed so extreme as to warrant criminal sanction. Instead, it clearly states that its intention is to coerce conformity to its own choice of new norms for behavior:

On the one hand, it is customary—at least for serious felonies—to reserve the social opprobrium and strong penalties of the criminal law for conduct that is universally condemned as intolerable. By this measure it would be acceptable, perhaps even obligatory, to define the sexual offenses quite narrowly, restricting them to clearly aberrational behavior and declining to attach penal sanctions to conduct that significant segments of our society regard as predictable, harmless, or even valuable in some circumstances. On the other hand, a vitally important function of the criminal law is to identify and seek to deter behaviors that pose unjustifiable risks, even when those risks are not yet universally understood…. [The law] must often be called upon to help shape those norms by communicating effectively the conditions under which commonplace or seemingly innocuous behavior can be unacceptably abusive or dangerous. (Discussion Draft No. 2, General Commentary, at 11).

What’s clear is that ALI has been captured by the prevailing academic ideology, and they mean to change the model criminal laws to ram feminist dogma down society’s throat through the use of criminal law.

If you agree with this view, chances are you’re not going to see a problem here, and will applaud the creation of crimes out of gender politics to force your politics on society.  But never has it been clearer, at a time when overcriminalization and excessive punishment are at a tipping point, how cynical and disingenuous this ploy is, to use criminal law as a bludgeon to realign sexual relationships into crimes.

As for ALI, tomorrow will offer it a chance to show whether it is a captive of ideology or a reflection of the finest honest legal minds in America. Will gender politics compel the approval of this “stunning expansion of criminalization”?  We’ll find out.

22 thoughts on “American Law Institute’s “Stunning Expansion of Criminalization”

        1. Bartleby the Scrivener

          This got me to cackle rather loudly and several of my coworkers are staring at me wondering what on earth is so funny.

            1. Chris Deslone

              Surely, offering someone the opportunity to initiate oral contact constitutes sexual ssult under model legislation. Don’t you need permission for such a thing?

              “May I offer you my ass for biting?”

  1. Ross

    Wow, I never would have thought about writing a law that criminalizes innate human behavior. I am ashamed of my lack of creativity.

  2. Jyjon

    So now if I shake a woman’s hand and she decides that I held her hand too long, she can file a complaint that I did it for spurious erotic pleasure and I’d spend some time contemplating what a horrible rapist I am in federal prison?

  3. Edward Wiest

    If things haven’t changed since I was a law student some decades ago:

    1. The influence of ALI work product (e.g., the Restatements and Model Acts) is in inverse proportion (whether geometric or exponential I can’t say) to the number of years since the putative user’s _enrollment_ in law school (and, to a more limited extent, in direct proportion to what the law student sees as the academic standing of his or her law school). Does anyone representing clients (or even serving as legislative staff) without unlimited time to look at secondary sources ever refer to the Model Penal Code as authority for day-to-day problerms?

    2. Member of the ALI–no matter how learned–have never been above citing their own work product as a basis for the same Restatement drafts they have “influenced” (it has been argued, for example, that Cardozo, J, a leading light of the ALI, tailored some of his more famous New York contract and tort cases to dovetail with then current discussion drafts of the First Restatement).

    Net-net: For the reasons already stated in previous posts, the due process implications of the recent proposals of Gov. Cuomo and Sen. Gillibrand are of real concern. Somehow, I doubt many voters (at either the legislative or electoral level) will be looking to the Model Penal Code in the course of a debate which should be far more robust than it currently seems to be.

    1. SHG Post author

      As with the Restatements, the real utility of the Model Penal Code is the ability to point left and say, “see, see, that’s what they say” when arguing whether to change real law.

  4. Fubar

    [The law] must often be called upon to help shape those norms by communicating effectively the conditions under which commonplace or seemingly innocuous behavior can be unacceptably abusive or dangerous. (Discussion Draft No. 2, General Commentary, at 11)

    Leaked revision drafters’ rebuttal to minority’s letter:

    The minority’s views are endearing,
    But there’s nothing here they should be fearing.
    It’s really no trouble
    To live in a bubble,
    Without looking or touching or hearing!

  5. KP

    “absurdity of relying on prosecutorial discretion”

    Shown in so many different instances in so many different countries around the world… How could anyone still consider prosecutorial discretion as a good option?

    1. SHG Post author

      Kind of ironic, given the anti-revenge porn sentiment, and yet the obvious benefits of recording affirmative consent throughout.

    2. Dave

      That would present difficulties in that in many states the age of consent for sex is below the age where one is able to film sexual acts legally.

      There was a lovely comedy sketch ages back where two lawyers meet to negotiate the entire course of a dating relationship from first date to possible later moving in and marriage. It was all put into writing, including sex acts, when they could be first performed and how often. How romantic.

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