ALI Model Penal Code: Sexual Assault and Related Offenses
Download original document:
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
June 4, 2021 Re: ALI Model Penal Code: Sexual Assault and Related Offenses, Tentative Draft No. 5, May 4, 2021 Dear American Law Institute Member: The undersigned are attorneys, academics, and other stakeholders writing to express our grave concerns with the proposed ALI Model Penal Code: Sexual Assault and Related Offenses, Tentative Draft No. 5, May 4, 2021 (“the Draft”) We recognize that the Reporters, Advisers and Members Consultative Group have invested significant time in development of the Draft. We also acknowledge that the Draft might mitigate some aspects and consequences of sex offense registration statutes and related laws. However, despite our respect for that work, we believe that on balance ALI’s approval of this Draft will do far more harm than good. For that reason, we ask that the Draft be withdrawn and reconsidered. ALI’s suggestion in this Draft that it is possible to construct a legally and ethically defensible registry will only serve to put a current-day seal of approval on a system that, as the overwhelming evidence shows, destroys families and individuals without measurably advancing public safety. For that reason, and for the very serious problems with the statutory schemes that the Draft itself acknowledges, we urge you to reject and vote against Section 213.11. Sex offense registries (hereafter “the registry”) are in the news every day, but rarely is there much discussion of how they operate and whether they are wise policy. Scholarly studies have found no rigorous evidence that the registry reduces recidivism or improves public safety. Registries cost a lot of taxpayer money to operate and maintain while causing profound damage to the lives and future prospects of individuals required to register. This is no small matter; registries in 50 states and Washington, DC have more than 900,000 listings. Counting registrants’ families, several million Americans are personally affected. The Draft’s proposal for a registry accessible only to law enforcement with the stated purpose to ”facilitate high-priority investigations of serious sexual offenses” in fact would serve as a police “blacklist,” a surveillance scheme of dubious constitutionality. Those listed would become perennial instant suspects, much as other non-public registries functioned in the past. California’s registry, for example, which began in the 1940s, was used to track gay men. And 15 years — the Draft’s proposed length of registration — amounts to mandatory law enforcement supervision, and the threat of arrest and prosecution, for a significant part of a person’s life. It is time for thoughtful, courageous resistance to a profoundly harmful and ineffective response to sexual violence that reflects political and reactionary rationales rather than science, public safety and reason. Grassroots opposition to registries is building, and voices calling for an end to the registry are getting louder. This is not the time for the ALI to undermine this advocacy for substantive change by approving the current Draft. Like ALI’s Draft, legislative commissions and other parties have advanced “reform” proposals — to very little effect. By endorsing the registry, ALI will further entrench the status quo and short circuit nascent and developing discussions about whether the registry can and should be ended. As an alternative to advancing this Draft, ALI can replicate the good it has done in the past by tabling the Draft pending a broader consideration of the registry’s costs and collateral consequences, including the economic and psychological impact on the partners and children of registrants. In 2009 ALI removed from the Model Penal Code protocols for state-sanctioned executions, giving a boost to the long-running campaign to end a serious violation of human rights, capital punishment. Decades earlier, an ALI criminal law restatement was deliberately silent on an important matter of sexual freedom. Following ALI’s lead, Illinois became the first state to decriminalize sodomy in 1962. Like the death penalty, experience shows that the registry — whose enforcement hinges on subjective assessments of “dangerousness” — will land most heavily on those who already are regular targets of bias, Black and gay men. As you prepare for the June 7-8 membership meeting we ask you to take into account the following points: 1. The registry has no rehabilitative purpose. It makes reentry and reintegration an obstacle course. 2 2. “Paying a price” for wrongdoing and then being able to move on with one’s life provides an incentive for change and reformation. This is an important principle of law and policy. The registry is a prime example of endless punishment. 3. The registry is a post-conviction measure. If the registry were to vanish, there is a raft of criminal statutes in every jurisdiction for sexual offenses, all with substantial penalties for those convicted, and extra penalties for subsequent offenses. 4. Beware of emotion. In fashioning accountability for sex crimes, it is especially important to beware of the role that emotion and political expedience play in the process. 5. At issue here is more than just a database, community notification mechanisms, and various other collateral consequences. Some among us have been turned into the “other” by the use of indelible labels and other techniques. “Sex offender” is one of the most powerful and destructive phrases in the English language. A ruling by the US Court of Appeals for the Sixth Circuit declared that Michigan’s Sex Offender Registration Act “brands registrants as moral lepers solely on the basis of a prior conviction.” Once their humanity is gone, it becomes much easier to strip away their rights. 6. Those required to register routinely experience harassment and discrimination. These are not “bugs” of the registration system; these are features. Physical attacks are not unknown. An alleged vigilante killing last year of a registrant in Nebraska drew public support and an alarming nationally syndicated column, “Murder as a Public Service?” 7. Sex offense registries have a corrosive effect on legal norms; they are causing a proliferation of other conviction registries in the US. Past offenses — criminal records — cast long shadows on the future; in the internet age, the past can wreck the future. There’s increasing momentum among scholars and activists to make sealing and expungement available to those with past offenses. Sex offense registration should be included in those efforts. We ask that you follow the logic of your own best work and hold back a recommendation that will perpetuate irrational harm to individuals and families. Instead, we ask that you re-examine approaches for dismantling these expensive and ineffective practices. We stand ready to assist with such an effort in any way possible. Respectfully, Catherine Hanssens, Founding Executive Director, The Center for HIV Law and Policy Bill Dobbs, Publisher, The Dobbs Wire — Sex offense law and policy news Cecilia Chung, Senior Director of Strategic Initiatives and Evaluation, Transgender Law Center Abre’ Conner, Directing Attorney, Law Foundation of Silicon Valley 3 Alice Fontier, Managing Director, Neighborhood Defender Service of Harlem Tristan Gorman, Policy Director, Colorado Criminal Defense Bar Shannon Minter, Legal Director, National Center for Lesbian Rights Karen Murtagh, Executive Director and James Bogin, Senior Supervising Attorney, Prisoners’ Legal Services of New York Paul Wright, Executive Director, Human Rights Defense Center; Editor, Prison Legal News Scott D. Bertani, Director of Advocacy, Health HIV Reginald Thomas Brown, M. Ed., Board Co-chair, VOCAL-NY; Ambassador, Unity Fellowship of Christ Church - NYC Logan Casey, Senior Policy Researcher & Advisor, Movement Advancement Project (MAP) Mark Harrington, Executive Director, Treatment Action Group Fran Hutchins, Executive Director, Equality Federation Charles King, President/CEO, Housing Works Zack Lyons, Policy Director, National Equality Action Team (NEAT) Krista Martel, Executive Director, The Well Project James H. Maynard, Esq, Managing Member, Maynard Law Office, LLC Mark Misrok, Executive Director, National Working Positive Coalition Tami Haught, Managing Director, Sero Project Penelope Saunders, Coordinator, Best Practices Policy Project (BPPP) Vanessa Tate Finney, Director of Policy and Advocacy, AIDS Alabama Carole Treston, Executive Director, Association of Nurses in AIDS Care 4 For the following individuals, affiliations are listed for identification purposes only. Stephanie Bazell, Esq., Director of Policy and Advocacy, College and Community Fellowship--New York and Federal William C. Buhl, Chairman, Professional Advisory Board to the Coalition for a Useful Registry; Judge (retired), Michigan Circuit Court Elsie Chandler, Senior Trial Attorney, Director of Youth Law Practice, Neighborhood Defender Service of Harlem Heather Ellis Cucolo, Trustee, International Society for Therapeutic Jurisprudence Hannah Demeritt, Clinical Professor of Law/Supervising Attorney, Health Justice Clinic, Duke Law School David Feige, Attorney; Author, Director of the documentary Untouchable; former Trial Chief of The Bronx Defenders Simon Greenberg, Staff Attorney, Criminal Appeals Bureau, The Legal Aid Society Samuel R. Gross, Thomas and Mabel Long Professor of Law Emeritus, University of Michigan Law School; Senior editor and co-founder, National Registry of Exonerations Jullian Harris-Calvin, Program Director, Greater Justice New York, Vera Institute of Justice Olga Irwin, Policy Fellowship Spokesperson, Positive Women’s Network-USA Laurie Rose Kepros, Attorney, Director of Sexual Litigation, Colorado Office of the State Public Defender; Member, Association for the Treatment of Sexual Abusers (ATSA) Roger Lancaster, Professor of Anthropology and Cultural Studies, George Mason University; author of Sex Panic and the Punitive State Arthur S. Leonard, Robert F. Wagner Professor of Labor and Employment Law, New York Law School Ken Levy, Holt B. Harrison Professor of Law, Paul M. Hebert Law Center, Louisiana State University James H. Maynard, Esq., Maynard Law Office, LLC William McColl, Esq., McColl Strategies, LLC 5 Ilan H. Meyer, Ph.D., Williams Distinguished Senior Scholar of Public Policy, Williams Institute, UCLA School of Law Michael L. Perlin, Esq., Professor Emeritus of Law, Founding Director, International Mental Disability Law Reform Project, Co-founder, Mental Disability Law and Policy Associates Nancy D. Polikoff, Professor Emerita of Law, American University Washington College of Law William P. Quigley, Professor of Law Emeritus, Loyola University New Orleans Allison Rice, Clinical Professor of Law (Teaching), Duke Law School Rebecca Richman Cohen, Filmmaker, Racing Horse Productions, Lecturer on Law, Harvard Law School Alan Rosenthal, Law Office of Alan Rosenthal, Syracuse, New York Stephen R. Scarborough, Appellate Attorney, Office of the Public Defender, Atlanta Judicial Circuit Norman Siegel, Civil rights attorney, New York, New York Martin R. Stolar, Civil rights and criminal defense attorney, New York, New York Pauline Syrnik, Staff Attorney, Legal Aid Society Leonore Tiefer, Ph.D., New York State Licensed Clinical Psychologist Judith Whiting, Attorney and policy counsel, New York, New York 6