Understanding the new ALI guidelines for managing sexual assault

By Sandy and Prof. Ira Ellman . . . After all the brouhaha, all of the protesting and dissemination of false and misleading information, it is over. May 17, 2022, the American Law Institute voted to accept the recommended changes to its Model Penal Code in regard to sexual crimes.

The session was not without dissenters, for, according to Professor Ira Ellman, several motions to modify the changes as presented were made and voted down.

He writes:

Last December, the Department of Justice, NCMEC, and 36 state Attorneys General sent letters to the ALI opposing various parts of the proposed revisions to the Sexual Assault article of the Model Penal Code. Among the portions of the Code they opposed were those that addressed the registry. Their opposition led the ALI Council to ask the members to make some revisions, but the revised draft continued to bar public disclosure of the registry and to limit the duration of the registration obligation to no more than ten years, with provisions for earlier termination.  In advance of the annual membership meeting last week, DOJ, NCMEC, and the state AG’s all sent letters making clear they regarded the revisions as inadequate, and all three urged the members to reject the revised draft. NCMEC asked to speak at the meeting to explain their opposition, and they were given three minutes to make their pitch. Their General Council appeared.  She was ineffective.  I think they’re not used to being challenged or having to argue for their position.

At the meeting, Nancy O’Malley, the District Attorney of Alameda County, California and former chair of the California Sex Offender Management Board, offered motions intended to respond to their concerns. Her motions would have, among other things, restored the public website and public notifications and given NCMEC access to the registry. Her motions were rejected.

I offered three motions that were approved.  One made clear that the bars on public access [to the registry] and the limits on the duration of the registration obligation apply to all registerable offenses, not just those addressed in the sexual assault portions of the MPC.  So, for example they would apply to possession of CP, which is not an offense addressed in the sexual assault article of the Model Penal Code. The second motion protects registrants from the reach of federal SORNA rules requiring registration for long periods etc., by barring the state from accepting registrations that state law does not require.  That creates an “impossibility defense” (recognized under SORNA), for anyone compliant with state registration laws, against any federal SORNA prosecution for failure to comply with SORNA’s harsher requirements.  The third motion eliminated a requirement that every registrant provide all internet identifiers, which the Second Circuit Court of Appeals had just found violative of the First Amendment.

 The complete draft, with my amendments (as well as some others focused on other portions of the MPC) was then given final approval—again. The project is officially done and the Council should give it final approval at its winter meeting.

Advocates for policy and laws based on empirical evidence owe Prof. Ellman as well as the full body of ALI a debt of gratitude.

Now it is time to assure that these efforts have not been in vain. These recommendations, not legally binding in and of themselves, will only become law when adopted by state legislatures. Depending on your state, your situation, and your legislature, do whatever work will be needed to bring these recommendations forward into codified law.

The recommendations themselves are a step forward. The end goal is the total removal of the registry. That will be a touchdown. Getting this important work into law will be a first down in our march toward victory.

Ira EllmanDr. Ellman is a Distinguished Affiliated Scholar with the Center for the Study of Law and Society at the University of California, Berkeley and a Charles J. Merriam Distinguished Professor of Law and Affiliate Professor of Psychology, Emeritus, at Arizona State University. He is the author of a recent paper “When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime.”

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26 Thoughts to “Understanding the new ALI guidelines for managing sexual assault”

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  1. Brian

    First post…one word…AMAZING

  2. David Kennerly

    This is really fantastic! And fantastic work, Ira. Thank you very much for this really remarkable work. I look forward to these guidelines being instantiated in law across the U.S.

    1. Jacob

      Some of us reading the first few lines or otherwise skimming the article will be tempted to trumpet, “ALI has approved…!”

      So, to clarify: we went from a draft that was approved by ALI Council but not by ALI membership, to one that has been approved by ALI membership but not by ALI Council.

      Is that correct?

      1. Eugene V. Debs

        “ The project is officially done and the Council should give it final approval at its winter meeting”. That is what I am guessing as well.

  3. Larry T

    This is a major step in the right direction and I personally want to thank Sandy for all her help, work and support.
    Thank you Professor Ellman.
    I know that I am one of the skeptics in the bunch. I am seventy and the better part of my life is behind me and there are doubts that I have that any of this will happen within a time frame that could positively effect my remaining life. But, as I said, most of my life is past, my hopes and prayers go with those that still have most of their’s in front of them. The young fathers and I am sure there are a few mothers out there that are dealing with the stigma that we live under.
    I pray for the families that these draconian laws have rendered asunder.
    I can speak of these as I have lost all of my family and had one son take his own life because of my conviction and imprisonment.
    I had always taught my family that the police only arrested truly bad people, that the courts are always just and seek only the truth, and that only guilty reality bad people end up in jail or prison. This is the lie that I now believe that most of the public believe, until they are personally confronted with the reality of the truth.
    I feel blessed that I am as old and decrepit as I am, for I won’t have to deal with this for the many years that you younger brothers and sisters will.
    But up to this point it seems to me that Sandy and a handful of others have been carrying the torch. It’s time now for those of us who can, to take the load upon ourselves. I know that there are many like me who are on supervised release and to take an active role would not be approved of by that PO.
    I also know that there are some out there that actually did nothing illegal or unlawful but were badgered and threatened into taking that one sided contract called a plea agreement. Your families were threatened and you were threatened with sentences extremely inflated. I was threatened with 145 years.
    The reality of my case is that the state couldn’t find anything to indict me with, so they turned it over to the federal government. Need I say more?
    Now with all that said, it’s time to educate those that you may have influence and get them to do the same. Get them involved and take this to the state law makers. Take these mid term elections seriously and hold these men and women accountable.
    This is supposed to be a representative government. Not not a monarchy divided into 50 fifedoms. Hold their feet to the fire and demand that they listen and represent their constituency.
    God love you all.

    1. CherokeeJack

      Larry I agree. My charges are from 1991 and was one of the first to be put on the registry when created. I am on for life even though no registry existed when my incident occurred, didn’t exist when I was charged, nor when I was sentenced. But I am on the registry for life with no chance of removal.
      They have added, strengthened, changed and upgraded the registry almost every year since 1997 making it harder and harder to not step in a pile of *hit and be sent back to prison for more time than I served for my offense.
      Now between the registry and their partners, Nextdoor, are making our lives a living Hell. It won’t be me but someone is going to eventually snap and all Hell is going to break lose when someone gets hurt. I am not talking about one of us, they want that. I am talking about when a registrant snaps when people are protesting outside their homes.
      We all (or dare I saw most of us) have families we live with, and it is Hell for them as well. Each one of them suffers when our tires are slit, rocks thrown through our windows, Bullets shot at our house(happened here twice with no concern at all from law enforcement) and more.
      And in Florida specifically, you are not removed from the registry even when you die, they just add a notation that you are deceased, but still pop up as a sexual offender at that address for the public to harass those who still live there. And the law makers think that is just “Fine and Dandy” as far as they are concerned.

  4. Joshua Garsteck

    Thank you so much. Please let us all know when and how to voice our support of these changes to our state representative.

  5. Ernie

    Beside my humble gratitude to all who have worked so hard on this, I salute and stand amazed at the membership of the American Law Institute. It is an antidote for these times to find there still exist so many persons of reason and justice.

  6. Tom

    Thank you for the new Ira much appreciated

  7. John Pineau

    Thank you.

  8. TS

    Well done! Congrats! May rational minds now take note and be not afraid to implement such measures legally in statutes and revised codes across the nation! And those who still scare others from their bully pulpit, may they take the time to read these and understand them.

  9. Bill

    Excellent! A step in the right direction.
    Many thanks to all involved.

  10. WeArethePeople

    Thank you Sandy you always write well. This is wonderful news, and I would like to thank Ira Ellman. I hope that someday before I die that this injustice that effects so many family members as well as the person themselves gets a complete overhaul. Larry T said it well and I am sorry about your family especially your son. Keep up the good work NARSOL you helped me alot during this monstrosity.

  11. Scott

    I hope it changes for everyone but especially in Oregon I’ve been on the registry for 35 years and would like to get off and have a life. Thank you very much for all the work you guys do even though it might not help me it might help someone thank you again.

  12. mut

    this is good news. seems the tide may be shifting. fingers crossed.

  13. WC_TN

    I’m thinking, in view of the Ketanji Brown Jackson confirmation, that it will be a cold day in hell before these measures are adopted by the states. State AGs will throw a fit as will the public at large, I’m afraid. While I agree this is an important….even monumental step in the right direction, all the misinformation presented shows there’s no political will to adopt these recommendations. I hope one day that will change, but for right now I am not going to hold my breath.

    We need to stay vigilant, because I guarantee you Josh Hawley is NOT finished with his bill by a long shot. Mandatory Minimums for CP non-production charges will be an issue again.

    1. anonymous

      It does mean alot. All of the Attorney Generals and pro registration accomplices know this as well. That is why they put up such a fight against this. It adds very needed clout and a strong voice of reason in applying sex offender laws. This is a great building block from voices that matter much more than ours.

  14. Jim

    Still a long way to go in this backwards country. A country that seeks a lighter sentence to parents who torture and burn their Infant child, than a sentence to someone who looked at pictures. But Thank You for all of everyones hard work for all of us!

    1. ALLIE

      I totally agree with you. It’s awful the way people are killing their children all the time and getting a slap on the wrist for doing it but look at a picture and you get to spend time in jail plus put it out there for the whole world to see and call it sexual abuse of a child that you never even met and probably never will.

      1. Jim

        An employee of ours, who is an excellent employee received 16 years in federal prison for looking at pictures. He was released on parole and did very well for more than a year then got sucked back into federal prison for failing a polygraph. The only crime that a polygraph can prosecute. They cant use a polygraph for a conviction for murder but the can for sex offences.

  15. A Mistake They Made

    Thank you!

  16. Tim in WI

    When one lives in a world ruled by fiat and without due processes, guidelines and outcomes are never etched in stone. The author offers hope for a defense from federal surveillance saints in bed with big tech corporations. All because registration itself opened the door. The tighter they squeeze the more violent things will get. We are already experiencing this trend. Why wouldn’t the people act like criminals when each party insists the other is? I think they are both correct.

  17. Kerry mockerman

    Ok this is a start thank you for hard work ..heres somthing that feel is also against or constitution and was part of michigan new law passed at the same time these registry laws were passed..it had to do with lifetime tethers..it was made retroactive along with the registry. This was found to be unconstitutional. If 1 is considered unconstitutional anybody with comon sense would know that so is the lifetime teather.they put these two with different doc numbers so they both couldn’t be taken to Cort and shot down together . And I was under a plea deal there was no lifetime teather..this is illegal by law.why arnt both of these laws dismissed..

  18. Brian Wittman

    Like others, I believe this is a step in the right direction on paper but the major part of me says that states will NEVER adopt them because the legislators don’t ever want to be seen as being soft on crime especially we the lepers of society. I am so skeptical that any of these recommendations will ever be adopted. After all, what power does this council have on the states? NONE. The states know they can do as they wish without impunity. They already violate Constitutional Rights and get a we ay with it by stating we fall under the Commerce Clause of the Constitution. Anything they can do to justify their actions so as to garner votes.

  19. Raw

    A huge THANK YOU, to Professor Ellman for his motions and including “all of us” not only those
    for sexual assult revisions. THANK YOU members of the ALI for giving most of us our lives back, at least we’re seeing work in the right direction to ending the BS registration. These clowns that sent in letters to the ALI to reject the new MPC revisions need to pound salt. The top of the elite law scholars, judges and the like makes up the ALI’s membership that actually do real studies and research to make these changes to laws, now add their rational thinking to all of this and this is what you get. If I’m not mistaken it took them nearly 10 years of serious hard work to agree and vote in the final draft. These legislators, AG’s, governor’s, that don’t want to get these new laws passed need to be replaced. We’re all not the monsters they want people to believe we are. MISTAKES, MESS UPS that’s what we did thats not who all of us are. Elijah Cummings RIP once said ” every person deserves a second chance no matter the circumstances.” He! was including us!!

  20. Mike

    You know, it’s the right direction, as long as it passes into law just as it is right now. As my mom would say ” don’t count your chickens before they’re hatched “. I want to know is why did they enact the registry, the government did a study on recidivism in 1994, the results was 9%, they enacted it anyways and it’s on the Doj’s website.2. What it is the reason and evidence for the 10yr, 25yr & Life. The police have the exact same information. I hope this happens.
    Mike