§ 33.09 Model Penal Code

§ 33.09 Model Penal Code

[A] The Original Sex Offense Provisions: In General

The Model Penal Code was adopted in 1962 after a decade of work. The 1962 sexual offense provisions were considered well ahead of their time. It is a sign of how much attitudes about sexual offenses and gender roles have changed in the intervening years that this version of Article 213 ("Sexual Offenses") now appears antiquated. It does not constitute a model that any twenty-first-century state legislature would emulate. Indeed, as discussed in subsection [E], the American Law Institute adopted new sexual offense provisions in 2021 in the hope that the new provisions will assist state legislatures in further reforming their rape laws.

Article 213 of the Model Penal Code, as originally adopted, set out various sexual offenses: rape; gross sexual imposition; deviate sexual intercourse; corruption of minors; sexual assault; and indecent exposure. Only rape, deviate sexual intercourse, and some forms of corruption of minors constituted felony offenses. Unlike the law in some states in 1962, consensual sexual conduct between unmarried adults was not prohibited.

The original offenses of rape and gross sexual imposition are summarized here.

[B] Rape

[1] In General

Under the original provisions adopted in 1962, a male was guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material elements of the offense, he had sexual intercourse with a female under any of the following circumstances: (1) the female was less than 10 years of age;¹⁷⁷ (2) the female was unconscious; (3) he compelled the female to submit by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain or kidnapping; or (4) he administered or employed drugs or intoxicants in a manner that substantially impaired the female's ability to appraise or control her conduct.¹⁷⁸ The Code recognized a partial marital exemption: The preceding conduct did not constitute rape if the female was his spouse, unless the parties were living apart under a formal decree of separation. Moreover, the immunity extended to persons "living as man and wife," although they were not formally married.¹⁷⁹

Rape was characterized as a felony of the first degree (and, thus, graded as seriously as murder) in either of two circumstances: (1) the defendant inflicted serious bodily injury upon the female or another in the course of the rape; or (2) the female was not a "voluntary social companion" who had "previously permitted him sexual liberties." In all other circumstances, the offense was a felony of the second degree.

[2] Comparison to Common Law

The 1962 Code's treatment of rape was quite traditional in various regards. First, it was gender-specific, i.e., legally only males could commit the offense, and only females were victims. Second, the Code affirmed the general principle that nonconsensual intercourse with a spouse is not rape.

The Code, however, differed from the common law in various respects. First, the term "sexual intercourse" was defined broadly to include genital, oral, and anal sexual penetration by the male of the female.¹⁸⁰

Second, rape was defined in terms of the male's acts of aggression or overreaching, rather than in the negative terms of the female's lack of consent. The drafters favored this approach because "[t]he deceptively simple notion of consent may obscure a tangled mesh of psychological complexity, ambiguous communication, and unconscious restructuring of the event by the participants."¹⁸¹ By shifting the focus to the male's conduct, the drafters of the Code sought to avoid the common law's emphasis on objective proof of the victim's lack of consent. In particular, the 1962 Code did...