Inverting Blackstone

It's called the "Blackstone Ratio" after William Blackstone who said it was

better that ten guilty persons escape, than that one innocent suffer.

It is a lovely idea.  One we pay homage to while patting ourselves on the back about the wonders of our Beyond a Reasonable Doubt standard of proof for a criminal conviction.  And one we don't mention as we issue a celebratory oopsie when we release a wrongfully convicted, innocent person and claim it shows how well the system works.

It's also a fantasy.  For all the noble assertions - reaching back into history centuries before Blackstone and up to the present in academic discourse and jurisprudential ideal* - we don't really believe it.  Ask your neighbors.  Ask your co-workers.  Unless they happen to be criminal defense lawyers, and maybe even then, they'll look at you as if you're a lunatic.

Still, we aspire.  At least, we did.

* * * * *

Enter the American Law Institute.** Institutionally respected (and influential, which is more important), the ALI consists of some 4,000 academics, lawyers, and judges (invitation only, please) who among other things drafts "Model" laws that tend to be adopted, with only slight variation, around the country.  In particular, ALI is responsible for the Model Penal Code.  Taught in law schools, what the Model Penal Code suggests as, er, model, states commonly adopt as law.  

Of course, ALI has to keep tweaking the MPC.  That's good, since it allows them to amend stuff that turns out to have deplorable consequences.  And it gives them a chance to add new crimes since, for instance, we didn't have cyberhacking in the old days.  (I don't actually know whether the MPC includes cyberhacking as a crime.  Nor, frankly, do I care enough to see if the answer is available somewhere that isn't behind their paywall.)  Of course, the tweaking also keeps them in business, and like every institution, ALI is deeply concerned with maintaining its relevance - and income.

But then . . . 

So for the past few years, ALI has been working on a new version (they call it an "updated" version of 

Article 213 of the Model Penal Code, which was ahead of its time when approved by ALI in 1962, but is now outdated and no longer a reliable guide for legislatures and courts.

But what is it, exactly, that made the old version unreliable? Probably bunches of stuff. It turns out that in the old version unless there was force or some form of coercion it was not a crime for sex "between professionals (mental health providers, lawyers, executives, etc.) and those under their supervision or in their care." You know for a doctor to have sex with a patient or a lawyer with a client or the CEO with the company's VP for handcuff design or whatever. Ooooh. Damn. Actually, in the regulated professions, that's pretty much a no no anyway. You could lose your license. Not enough punishment, though, since you couldn't also lose your freedom.

And of course the tweaking cranks up the sentences.  Because in 1962 we didn't think all sex offenses deserved LWOP followed by lifetime registration and matches on the front lawn to make it easier to burn down the registrant's home.

But I'm quibbling and ignoring the real news which is the criminal law adoption of Mattress Girl as a mascot for the new crime.  Elizabeth Nolan Brown at Hit and Run:

To this aim, ALI proposes establishing the new crime of sexual intercourse without consent, a misdemeanor, which takes place when a person "knowingly or recklessly has, or enables another person to have, sexual intercourse with a person who at the time of the act of sexual intercourse has not given consent to that act." (This is, of course, absent any sort of force, coercion, or indication the victim protested/resisted, which would remain felonies.) It would also expand the definition of criminal sexual contact to include any unconsented to contact with any body part if the perpetrator intended the touch amorously or lustfully.

How does that work, exactly?  Here's the explanation in a way-too-long excerpt from a memorandum opposing the draft recommendations by some 70 members of ALI (edited slightly for comprehensibility).  It begins with a hypothetical.

A and B are on a date and walking down the street. A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. B does nothing, but six months later files a criminal complaint. A is guilty of “Criminal Sexual Contact” under proposed Section 213.6(3)(a).
How can this be? The draft explains:

Section 213.0(5) defines “sexual contact” expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched…. 

The offense arises because A failed to obtain the draft’s requisite prior “positive agreement” to the “sexual contact.” Section 213.0(3). The draft repeatedly “makes clear that when a complainant’s behavior has been passive—neither expressly inviting nor rebuking the defendant’s sexual advances, that behavior cannot be considered sufficient to show affirmative permission.” A’s guilt is absolute because, “feeling romantically and sexually attracted” and feeling “a thrill as their hands touch,” A has no defense against the accusation that the touch included the “purpose of sexual gratification… or sexual arousal.” Section 213.0(5).
The draft purports to preserve mens rea as an element of the offense, but that is no comfort because it is proven with barely an effort from the prosecutor: “A, When walking down the street side by side with your date, you knew, or knew of the risk, that B had not expressed prior positive agreement that you could reach out and hold B’s hand, didn’t you? In fact, that’s exactly why you were “timid” about it, right?”
Of course, A does not have to testify but A will have great need to testify because of the shifting of the evidentiary burden that is caused by the “positive agreement” standard. Note that A is still guilty even if they were both wearing gloves. Section 213.0(5) (“clothed or unclothed”)
Consider the same couple, but now B responds to the criminal hand-holding by pausing to kiss A on the cheek. A remains guilty since there is no mechanism for retroactive consent, but now B is also guilty because A has not expressed prior positive agreement for this particular escalation. Under this scenario, the actions of both A and B would satisfy the elements of the offenses. Thus, they would be adjudicated as sex offenders, would be required in many states to register as such and would suffer the other collateral consequences of conviction for a sex offense.

Section 213.0(5) defines “sexual contact” expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched…. 

Ain't life grand.

OK, that's ridiculous. And fortunately there's no prosecutor who would proffer charges like that. Except that they would.  Plead to hand holding and we'll drop the more serious groping charges. Hey, it's just a little thing.  A kiss is just a kiss.

But here's the nub.  None of it is an accident.  The drafters understood, announced up front that they didn't care about snaring the innocent as long as they upped the odds of catching the guilty.

[T]he appropriate default position clearly is to err in the direction of protecting individuals against unwanted sexual imposition. (Discussion Draft No. 2, Substantive Material, at 53).

Of course, a legal standard requiring the affirmative expression of consent to sex will—inevitably—entail many false negatives, in the form of findings of unwillingness when in fact passionate desire was present. But the contrary standard now prevalent in American law will—just as inevitably—entail many false positives, assumptions of willingness and subsequent sexual intrusion when such intimacy was entirely unwanted. Section 213.2(2) reflects the judgment that the harms that arise under the latter standard present far greater reason for concern. (Id.).

Ah, yes.  Better that ten innocent persons suffer, than that one innocent escape.

Hear that creaking sound?  It's Blackstone turning over in his grave.








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*See Alexander Volokh's "n Guilty Men."
** The ALI's self definition:

The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law.