Model Penal Code Sexual Assault Provision

You want to know the Model Penal Code provision on serious sexual assault and how many states have adopted it.

The Model Penal Code provisions on rape were first presented to the American Law Institute in 1955 and ultimately adopted in 1962. Since that time conventional thinking about sexual assault has changed dramatically, and compared to many states' sexual assault provisions, the Model Penal Code seems somewhat old fashion. We could not identify any state that has adopted the provisions entirely or verbatim. We found five states (Colorado, North Dakota, Pennsylvania, Texas, and Wyoming) that have adopted some portions of the provisions.

Every state's rape or sexual assault statute prohibits engaging in sexual intercourse by force or duress, but the exact language used differs significantly. The Model Penal Code provision contains some unique ways of describing the prohibited conduct, and we were able to look for state laws that used identical or similar phrases in their law. We chose the two most serious sexual assault crimes in the Model Penal Code: rape and related offenses (§ 213.1) and Deviate Sexual Intercourse by Force or Imposition (§ 213.2).

(a)he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or

(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or

(d) the female is less than 10 years old.

Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree.

(a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or

(b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or

(c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband.

1. By Force or its Equivalent. A person who engages in deviate sexual intercourse with another person, or who causes another to engage in deviate sexual intercourse, commits a felony of the second degree if:

(a) he compels the other person to participate by force or by treat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or

(b) he as substantially impaired the other person's power to appraise or control his conduct, by administering or employing without the knowledge of the other person drugs, intoxicants or other means for the purpose of preventing resistance; or

(d) the other person is less than 10 years old.

2. By Other Imposition. A person who engages in deviate sexual intercourse with another person, or who causes another to engage in deviate sexual intercourse, commits a felony of the third degree if:

(a) he compels the other person to participate by any threat that would prevent resistance by a person of ordinary resolution; or

(b) he knows that the other person suffers from a mental disease or defect which renders him incapable of appraising the nature of his conduct; or

In Colorado first degree sexual assault (Colo. Rev. Stat. § 18-3-402) includes, among other things, (1) causing submission of the victim by threat of imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone (including someone other than the victim to coerce her compliance) and (2) substantially impairing the victim's power to appraise or control her conduct by employing, without the victim's consent, any drug, intoxicant, or other means for the purpose of causing submission.

In North Dakota gross sexual imposition (N. D. Cent. Code § 12.1-20-03) includes (1) compelling the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being; (2) substantially impairing the victim's power to appraise or control her conduct by administering or employing without the victim's knowledge intoxicants, a controlled substance, or other means to prevent resistance; (3) knowing the victim is unaware the act is being committed upon her; and (4) believing the victim suffers from a mental disease or defect rendering her incapable of understanding the nature of her conduct.

In Pennsylvania rape (18 Pa.C.S.A. § 3121) includes (1) substantially impairing the complainant's power to appraise or control her conduct by administering or using, without her knowledge, drugs, intoxicants, or other means to prevent resistance and (2) assaulting a victim whose mental disability renders her incapable of consent. Involuntary deviate sexual intercourse (18 Pa.C.S.A. § 3123) includes (1) use of threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, (2) assaulting a person who is unconscious or when the person knows the victim is unaware that the sexual intercourse is occurring, (3) using drugs or other means of preventing resistance as described above, and (4) assaulting a person whose mental disability renders them incapable of consent.

In Texas, sexual assault (Tex. Penal Code Ann. § 22.011) includes assaults when the actor has intentionally impaired the victim's power to appraise or control her conduct by administering any substance without her knowledge or when the actor knows (1) she is unconscious or physically unable to resist, (2) because of mental disease or defect she is incapable of either appraising the nature of the act or resisting it, and (3) the victim has not consented and is unaware the sexual assault is occurring.

In Wyoming, first degree sexual assault (Wyo. Stat. § 6-2-302) includes assault (1) by threat of death, serious bodily injury, extreme physical pain, or kidnapping to be inflicted on anyone and (2) when the actor knows the victim, through a mental illness, mental deficiency, or developmental disability is incapable of appraising the nature of her conduct. Second degree sexual assault (Wyo. Stat. § 6-2-303) includes assault when (1) the actor administers, or knows that someone else has administered to the victim, without her knowledge or consent, any substance that substantially impairs her power to appraise or control her conduct and (2) the actor knows that the victim submits erroneously believing the actor is her spouse


December 18, 1998		98-R-1535
MODEL PENAL CODE SEXUAL ASSAULT PROVISION

By: Lawrence K. Furbish, Assistant Director

Section 213.1. Rape and Related Offenses