Proposed Revisions to Model Penal Code: Unfair to Survivors of Sexual Assault and Human Trafficking

By Greg Rowe, PDAA Executive Director

The American Law Institute (ALI) is poised to approve significant revisions to the sexual offense provisions of the Model Penal Code. Unfortunately, the revisions would be beneficial to sexual predators and would be detrimental to survivors of sexual assault.

Consider, for example, that one proposed revision regarding the definition of consent “suggests that a person’s inaction may in fact be interpreted by another as permission to engage in sex.” Specifically, the proposed revision would allow a complainant’s “inaction” to be considered in determining whether consent is present. Such a view of victimization is incredibly dangerous and short-sighted. Victims may remain passive because of power differentials or prior childhood sexual trauma. Victims also may freeze reflexively.

We worry that under this proposal, victims would have to affirmatively demonstrate nonconsent, rather than the perpetrator having to demonstrate actual consent.

There is more to dislike with these revisions.  In a May 13, 2022 letter to the ALI, the U.S. The Department of Justice (DOJ) highlighted several other concerns with the proposals and urged significant changes. The DOJ said the proposed revisions would reduce penalties for crimes involving sexual violence or coercion, would exclude buyers of children for sex from liability under state trafficking charges, and would significantly reduce the scope of sexual registration laws. 

It is life shattering to become a victim of sexual assault or human trafficking. Why the ALI would, in the words of the National Association of Attorneys General, “weaken the ability of states to prosecute sexual assault, abuse, exploitation, and trafficking crimes; jeopardize the safety of victims of these crimes; and restrict the ability of law enforcement to protect the general public from recidivist behavior” is beyond comprehension.

Should the revisions be approved, it will be incumbent upon all of us to fight against their enactment on the state level and reveal just how unfair they are to survivors who have suffered from the trauma of sexual assault.

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Greg Rowe, Esq., has extensive criminal justice and public safety experience on the local, state and federal level.  Prior to becoming Executive Director, Greg was the legislative liaison for PDAA, having served as its Director of Legislation and Policy and before that as the Chief of the Legislation and Policy Unit in the Philadelphia District Attorney’s Office.