A Reasoned Approach to the Reform of Sex Offense Legislation

Currently there is a widespread movement toward the revision of state criminal codes. The goals of such an undertaking are varied: (1) to reduce the size of the criminal law by eliminating inconsistent, overlapping, or obsolete provisions; (2) to phrase the prohibitions in clear and concise language; (3) to introduce more modern approaches to the definition and treatment of criminal offenses; and (4) to harmonize the penalty imposed for a particular act with the severity of the act and the penalty for other acts. This paper will concentrate on sex offenses in an attempt to understand the legislative process of reform, for this subject illustrates each of the enumerated goals and poses in acute form the evidentiary and enforcement considerations that must continually be borne in mind by the drafters of a new criminal code. Moreover, the topic raises the difficult but important question whether law can affect private moral decisions or, more specifically, whether it should regulate private sexual behavior. Much of the reform activity has been prompted and aided by the detailed research and final publication of the Model Penal Code in 1962. A fair amount has been written on various sections of the Code. However, very little has been written comparing the Model Code with newly enacted or proposed state codes. This paper will concentrate on the New York Code and the Proposed Michigan Code and, comparing their provisions with those of the Model Code, will seek to evaluate the differences and similarities in treatment and will present specific suggestions to improve the state revisions in the form of a Proposed Penal Code. The analysis will focus on three broad categories of sex offenses: statutory and forcible rape, private sexual behavior between consenting adults, and the miscellaneous offenses (nonconsensual sodomy, sexual misconduct, indecent exposure, and sexual assault).