Taking the Law of Rape and Sexual Assault Backward
Yesterday, the American Law Institute (ALI), which lauds itself as the country’s “[l]eading independent organization in the United States to clarify, modernize and otherwise improve the law,” adopted an update of its 1962 Model Penal Code: Sexual Assault and Related Offenses, which, if states adopt it, will undo the progress made by states across the country in bringing the law of rape and sexual assault into the 21st century. ALI’s Model Penal Code is intended to guide state legislatures in drafting their own criminal laws and create uniformity.
ALI initiated this project ten years ago, at which time Legal Momentum’s Senior Vice President and Director of our National Judicial Education Program, Lynn Hecht Schafran, who is a member of ALI, was an enthusiastic supporter of this much-needed update. Unfortunately it has deviated widely from its original purpose.
In drafting its just-adopted definition of consent, ALI has actually moved rape and sexual assault law backward. First, ALI deleted from the consent definition it adopted in 2016 an explicit statement that “Neither verbal nor physical resistance is required to establish that consent is lacking.” Then ALI put front and center this language, “Consent may be express or it may be inferred from behavior—both action and inaction—in the context of all the circumstances.” Thus, a victim’s “inaction” – silence, passivity, “failure” to scream -- may be interpreted as consent.
For several years now Legal Momentum, as well as numerous other organizations ranging from the Department of Justice to the National Task Force to End Sexual and Domestic Violence, urged ALI not to adopt a definition of consent so deeply flawed that the Department of Justice wrote to ALI:
“Running against the historical progress in removing victim-resistance requirements from the definition of sex offenses, the Revised Code stipulates that consent may be inferred from a victim’s “inaction” …The Revised Code’s definition would effectively place the onus on the victim to manifest physical or verbal non-consent, rather than on the actor to secure the victim’s consent, creating the risk that factfinders will erroneously conclude that a victim who was frozen by fear was communicating consent.”
The National Association of Women Judges wrote to ALI:
“As drafted, these [Consent] provisions of the Revised Model Penal Code: Sexual Assault and Related Offenses, …will seriously harm victims, especially the most vulnerable, and are out of step with the law of sexual assault as it has evolved in states across the country.”
There are many reasons why sexual assault victims may not scream or run or manifest any of the behaviors stereotypically expected of them. More than twenty years ago, our National Judicial Education Program (NJEP) introduced a unit on the neurobiology of trauma into its Understanding Sexual Violence judicial education curriculum so that judges would understand what victims meant when they said they were frozen, or felt as if they were watching the assault from the ceiling. We hoped that ALI’s revised code would reflect an understanding of how victims of any kind of extreme stressor, from a shoot out to a sexual assault, respond, and help end the widely mistaken stereotypical beliefs about how rape victims “should” behave.
Legal Momentum will now work with the many organizations that expressed concern about ALI’s consent definition during the years of its formulation to ensure that state legislatures do not adopt this new, even more wrongly misconceived version.
