When “Intent” Was Written Out Of The Model Penal Code

It’s not that there is some nefarious conspiracy by a social justice brain trust to undermine the basic concepts of law in order to achieve ends that could never otherwise be achieved, but little by little, it’s happening anyway. Indeed, most of its supporters likely have no clue that they’re complicit in this endeavor, seeing only the shining bright light of Utopia off in the distance. But damn, we’re going to be really unhappy when they get their way.

May 17th will be a big day. It’s when the American Law Institute, the once respected group of scholars and practitioners who produced the model penal code, the template upon which state legislators relied in fashioning state criminal law, will hold a vote on the proposed new rape and sexual assault laws.

[NYU Law School Professor Stephen] 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.

It’s not that using criminal laws to impose their sexual politics on society lacks disapproval within the ALI. It gave rise to a letter by 100 ALI members criticizing the radical expansion of sex crimes wholly disconnected from wrongdoing in order to manufacture a new sexual order. Edit: Just in, via E. Everett Bartlett of the Center For Prosecutorial Integrity, is the May 12, 2016 memo of objections from more than 150 ALI members. The National Association of Criminal Defense Lawyers similarly ripped the new proposal.  But arguments about why this is wrong only matter if there is any interest in discussion, or an open mind about the harm this would do. There isn’t.

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.

There was a goal, to change the nature of sex crimes to match the current outcome oriented view that rape is no longer tied to objective criteria, but to how a person feels about sex after the fact. It will include what we historically understand to be rape, but will also include affirmative consent and intoxication, two disastrously vague notions that rely on how women feel about their choices afterward, absolving them from involvement and responsibility and turning men into rapists based on their post hoc feelings.

There are two things that won’t be present on May 17th. There will be no mens rea requirement, no “intent,” in the law, and there will be no vote by anyone not present on the changes to the model penal code.

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.

The vote will be taken among those present on May 17th, meaning that lawyers, judges, pretty much anyone outside of academia who has to work for a living, will be missing and will have no say. And this is just the start of Schulhofer and the Pedagogues’ plans to change the world.

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.

There is a massive shift in the works to recreate social norms as to the nature of sexual relations. It’s happening in the context of other similar shifts, from the belief that “hate speech” is unprotected by the First Amendment to the Transgender Letter from the executive branch, the anti-revenge porn, anti-bullying, anti-harassment laws, and the vilification of the effort to include a mens rea requirement for all federal crimes that otherwise lack an intent requirement as a corporate conspiracy.

Is there a countervailing appreciation that this massive shift is happening? Not really. Despite these data points, and more, that reflect the prevailing wind of change, most people see only a tree at a time, and no forest. Don’t care about transgenders using bathrooms? Fair enough. But when the inevitable next step happens, and your child is expelled from Antioch for refusing to have sex with a trans female because of prohibited sex discrimination, don’t be surprised. And when that happens in a secret meeting, where your child won’t be allowed to deny guilt because it’s hate speech, don’t be surprised.

When convictions are predicated not on intentional culpability but post hoc rationalizations, don’t be surprised. When you are precluded from complaining about the irrationality and impropriety of it all, don’t be surprised. Chances are pretty good that you are complicit in the creation of this new vision of society, whether because you agreed with the outcome and shrugged off the process, or just didn’t care enough to say no.

It’s been coming for quite a while. It’s received widespread support because of the effectiveness of sad anecdotes and the expectation that government involvement can wipe all those sad tears away. The academics have been hard at work teaching our children to believe, and we’ve allowed, if not supported, them to do so.  And by the time anyone figures it out, and decides to stand up and say enough, it will be a fait accompli. Like the vote on May 17th. It’s a done deal.



17 thoughts on “When “Intent” Was Written Out Of The Model Penal Code

  1. wilbur

    “… most people see only a tree at a time, and no forest”

    That is the takeaway. I get the sense that the majority of people are unaware of this rot seeping into our culture. Very dangerous stuff.

    1. SHG Post author

      This problem is brutally clear in the commentary surrounding the North Carolina “bathroom law,” and the government’s Transgender Letter. Few reasonable people would argue in favor of discrimination against transgenders, but that’s just the tip of a huge iceberg that nobody sees right in front of us that’s about to sink the ship.

      Truthfully, I’m getting tired of pointing out the obvious to people on all sides of the issue. It’s too much effort trying to get people to think a little harder when they lack the desire and capacity to do so.

    1. SHG Post author

      Extremely good. You have to be present to vote, and the ALI members willing to show up at the meetings are the most zealous proponents, since the others tend to work for a living.

          1. Misha

            That’s discouraging.

            So, I’m assuming all the people in ALI you know who aren’t going are against the changes.

            1. SHG Post author

              You ask these questions as if I’m in charge of herding feral cats. This is what I hear from the people involved. Want to know what they’re doing? Ask them. I’m not in charge of every person in the ALI.

  2. Wrongway

    “Shifting the burden of proof to the defendant”,.. Surely this will get overturned as any judge worth his salt will immediately declare.. ahh fuck we’re screwed..

    1. SHG Post author

      I never found the shifting burden argument to be the most persuasive. Assuming complaining witness testifies truthfully, it’s the adequacy of the allegation in the first place to sustain a crime based on allegations of fact that fail to establish intent or notice that concerns me most.

  3. Ross

    Scenario: Mary and Bob have been dating for a month or so, and enjoyed a number of “encounters” that Bob thinks were entirely consensual. Bob starts seeing Sally, and Mary gets outraged, and goes to police claiming that some of the “encounters” with Bob weren’t consensual.

    Unless I’ve misread the post, this could result in Bob being prosecuted, simply because Mary was pissed off about being dumped. What could possibly go wrong?

    1. SHG Post author

      Mary honestly testifies that during final encounter, Bob failed to obtain consent, as Mary passively engaged in sex, as she did during all prior consensual encounters. While she may have, in her mind, consented, absence of affirmative consent constituted rape. Mary’s miffed at Bob, accuses Bob, Bob is prosecuted and convicted of rape. That’s what this change in law would provide.

  4. Misha

    I’d like to think the states would have better sense than to pass the changes into their own codes, but CA, NY, and CT have already mandated these rules for colleges with huge, bipartisan, virtually unanimous, majorities. The Nay votes for in the single digits for each state, I believe.

  5. Aaron

    It’s the ALI. Who cares? Their opinions carry no weight last I heard. The only thing I see coming out of this are procedural changes at the ALI to prevent this sort of thing from happening again after they’re forced to backtrack.

    1. SHG Post author

      This will bring little comfort when progressive legislators rely on the “gold standarnd,” the MPC, as the basis for changes in state law.

  6. ShelbyC

    Some of the things that you could be prosecuted for seem innocuous enough that, if any state adopts this law, perhaps women should be advised to avoid reporting rape to the police if there was any consensual component, for fear that they might admit an inadvertent violation of this law.

  7. Pingback: ALI turns down proposal to redefine criminal sexual assault - Overlawyered

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