§ 33.09 MODEL PENAL CODE

• Jurisdiction: United States

§ 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 the 1962 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 is working to develop new sex offense provisions that they hope will assist state legislatures further reform their rape laws.

Article 213 of the Model Penal Code, as originally adopted, sets out the sexual offenses currently recognized under the Code: 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 constitute felony offenses. Unlike the law in some states in 1962, consensual sexual conduct between unmarried adults is not prohibited.

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

[B] Rape

[1] In General

Under the MPC, as adopted in 1962, a male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material elements of the offense, he has sexual intercourse with a female under any of the following circumstances: (1) the female is less than 10 years of age;¹⁷⁷ (2) the female is unconscious; (3) he compels 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 administers or employs drugs or intoxicants in a manner that substantially impairs the female's ability to appraise or control her conduct.¹⁷⁸ The Code recognizes a partial marital exemption: The preceding conduct does not constitute rape if the female is his spouse, unless the parties are living apart under a formal decree of separation. Moreover, the immunity extends to persons "living as man and wife," although they are not formally married.¹⁷⁹

Rape is 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 is a felony of the second degree.

[2] Comparison to Common Law

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

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

Second, rape is 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 Code does not require proof of resistance...