Ohio State Journal of Criminal Law
By all accounts, the Model Penal Code is enormously respected and influential. Yet, relatively soon after the Code's 1962 publication, the Code's sexual offense provisions and even its 1980 revised Commentaries were already considered outdated. The rapid onslaught of the sexual and feminist revolutions of the 1960s and 1970s brought an intense momentum to change rape laws that the Code had, in part, either mirrored or inspired. Only because of the passage of time, the Code's sexual offense provisions and Commentaries now misrepresent the progressive thinking of the Code's reporters. For these reasons, I think the Model Penal Code's sexual offense provisions should be pulled, revised, and replaced. With such a recommendation in mind, this essay has two goals: it explains why a number of the Code's sexual offense provisions were so advanced when they were created, but also why their continuing, unaltered existence makes their original virtues too easy to forget. What started as a leading authority for the legal enhancement of women and homosexuals is now a relic that detracts from the credit and foresight that its creators deserve. Periodically, the Code's Commentaries acknowledged that the sexual offense provisions would at some point need redrafting to keep pace with the times. For these reasons, a primary source of support for my pull-and-replace recommendations are the contents of the Commentaries themselves.
Deborah W. Denno,
Why the Model Penal Code's Sexual Offense Provisions Should Be Pulled and Replaced, 1 Ohio St. J. Crim. L. 207
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/117