By Professor Ira Ellman
On May 18 the American Law Institute, at its annual meeting, had a four-hour session considering proposed revisions to the sexual assault provisions (Article 213) of the Model Penal Code. The membership had given what at the time was assumed to be final approval to an earlier version of these provisions at its meeting in May of 2021, pending the normally pro forma approval by the ALI Council, at its meeting in January 2022. But in a highly unusual departure from ALI process, the Council sent the draft back to the membership asking it to approve changes to May 2021 draft (“T.D. 5” in ALI parlance—Tentative Draft 5). It did this in response to last minute communications received from the Department of Justice, 36 state AG’s, and NCMEC.
Some of the Council proposed revisions affected substantive provisions of T.D. 5, including mainly provisions about the definition of consent, and about sex trafficking. But many of the DOJ and AG objections, and most of the NCMEC objections, focused on T.D. 5’s registry provisions. T.D. 5 had eliminated registration entirely for all but two Article 213 offenses (though preserving it for 3 additional offenses, but only upon reoffending), and for all sexual offenses not covered by Article 213. Article 213 deals with sexual assaults; most sexual offenses not addressed in Article 213 are non-contact offenses such as possession of CP, exhibitionism, voyeurism. But a few more serious offenses, such as production of CP, are also not part of 213 and would thus have also become non-registerable under T.D. 5’s language.
The new T.D.6 approved by the Council (after the Reporter met with all the objectors and crafted some revisions in response to their objections) pulled back some of the registry reforms. It made some additional Article 213 offenses registerable, but even more importantly, it altered the reach of Article 213 so that it simply did not speak to sexual offense registration triggered by non-213 offenses. That left them all registerable under whatever rules applied to them in existing law. This was done, the Reporter Steve Schulhofer explained to me at the time, because of the difficulty of defending T.D.5’s eliminating registration entirely for some serious non-213 offenses like production of CP, given that their substance was never reviewed or considered during the process of drafting Article 213. But the impact of this change was not only to leave the registration requirement intact for all non-213 offenses, but also to exclude these offenses from other critical reforms, such as the elimination of the public website, the bar on imposing registration obligations lasting more than ten years (with procedures for terminating registration sooner than ten years), and limitations on other collateral consequences that might be imposed.
The Council’s proposed revisions did not soften the opposition of DOJ, NCMEC, and the state AG’s, which all wrote letters reaffirming their continued opposition and urging the membership to reject T.D. 6. DOJ threatened to lobby state legislatures to urge them to not adopt these Model Penal Code revisions. Those interested can see here the letter to the ALI written by DOJ. The long-running debate over the definition of consent was an important motivator for the DOJ opposition, as was their concern about the sex trafficking provisions. They thought the ALI position made it too difficult to get convictions. But registry matters were clearly key in their opposition. The state AG’s letter, which focused its continued opposition on the revisions addressing sex trafficking and the sex offender registry, can be seen here.
Nancy O’Malley, the District Attorney of Alameda County, Calif, and the chair of the California Sex Offender Management Board when it urged the legislator to replace Calif’s life-for-all registration system with a tiered registry, was the primary spokesperson at the meeting on behalf of the DOJ position. She offered a couple of motions on the sex trafficking provisions, but most importantly she had three motions on the registry that would have revived the public website and public notification, given NCMEC special access to all registry information, and made special provision allowing victims access to registry information. The membership rejected all of her motions.
I offered three motions, all of which Wayne Logan seconded. One changed the statutory language to make clear that the Article 213 rules about the registry (as opposed to rules saying who must register) applied to all registerable offenses, not just those made registerable under Article 213. This motion thus restored, for all registerable offenses, the MPC’s bars on public disclosure of registry information and the public website, and its limits on the duration of the registration obligation, and would also bring the state’s entire registration system within the framework of the Article 213 system which, for example, requires less frequent updating, and less registration information, than do some existing laws.
My second amendment specified that the state’s registration authorities were not allowed to register people who were not required to register under state law, and were not allowed to accept information from them that state law did not require them to provide. The effect of this amendment was to create an automatic “impossibility defense” under federal SORNA that would protect those compliant with state laws from any federal prosecution for failure to register. They otherwise could be federally liable, e.g., for failing to register even though their shorter MPC registration obligation had expired, because SORNA imposes longer registration periods for almost all offenses. They could also be liable for not registering as often as federal law requires even though they complied with state law requirements. My final amendment eliminated from the MPC the requirement that registrants report all their internet and phone identifiers. The attached DOJ letter noted their opposition to all three of my motions. Fortunately, however, they were all adopted. The three motions can be accessed here.
The membership then went to approve T.D. 6, as amended, and to give the project (once again) final approval. All expect that this time the final approval really is final. The Council will sign off at a meeting in the fall or winter. Neither DOJ nor NCMEC can claim that their objections were not considered. Indeed, the Council had approved NCMEC’s request to speak at the meeting; their general counsel did so and was incredibly ineffective. Neither her presentation, nor the letters from DOJ and the state AG’s, made any serious effort to respond to the data and evidence marshalled in the drafts to explain the ALI’s rejection of the current registry regime.