This June, the American Law Institute (ALI) approved and released a near-final draft of the Article of its Model Penal Code on Sexual Assault and Related Offenses. The Model Penal Code is a project of the ALI, first published in 1962, that offers U.S. states a template upon which to base their criminal law codes. More than half of all states have enacted criminal codes based on this model, and even in states that have not done so, judges frequently use the Model Penal Code as a guide to interpretation.

Article 213 of the Model Penal Code on Sexual Assault and Related Offenses was, in the ALI’s own words, ahead of its time when it was first released in 1962. One way in which this was so was that it omitted the crimes of sodomy, adultery and fornication from the law. This omission led to a backlash in conservative states, such as in Idado where its law based on the Code was repealed only two months after it came into effect in 1972. Today, the ALI is pushing the envelope again with its thoughtful updates to Article 213, which rewrite provisions on consent, sex trafficking, and sex offense registries, among other hot-button topics. 

The provisions on consent (in Article 213.10 of the Code) were developed in consultation with the National Coalition for Sexual Freedom (of which Prostasia Foundation is an affiliate member), and for the first time, ensure that consenting adults are not criminalized for rough sex. It does this by allowing a person to give explicit prior permission for the use of force in sex, and allowing this to be raised as a defence to a charge of using or threatening to use aggravated physical force or restraint. The defence doesn’t apply if actual serious bodily injury was caused; it is not a license to be reckless.

The definition of sex trafficking is also tied to consent in the ALI's new formulation in Article 213.9 of the Code. In a nutshell, this crime is made out where the defendant engages in trafficking activity (such as recruiting, transporting, or harboring a victim) for the purpose of facilitating a commercial sex act, knowing that the victim's submission to that sex act "will be without effective consent." The lack of consent can be either because the trafficker knows that the victim is being coerced into the sex act, or because the victim is under 18 and the defendant is aware of that fact, or recklessly disregards it.

In several respects the ALI’s Model Code is narrower than existing federal law on sex trafficking (in the Trafficking Victims Protection Act), not least in that it differentiates more clearly between a trafficker and a customer of a sex worker. Since trafficking is a serious crime that carries a minimum 15 year term of imprisonment, treating sex worker buyers as traffickers is disproportionately heavy-handed in most cases. For example, the customer of a 16 or 17 year old who willingly offers sex for money, in a state where they are above the age of consent for sex, would not be guilty of trafficking under the ALI Model Code—unless they also performed acts of trafficking (recruiting, harboring, etc). They may, however, be guilty of some lesser offense under state law (such as “commercial sexual abuse of a minor”).

As important as the Model Penal Code’s changes to the law of consent and sex trafficking may be, the show-stopper in this revision of the Code are the significant changes that they recommend to sex offense registries. In introducing these changes, the Code acknowledges that America’s public sex offense registries have failed to fulfil their purpose, while imposing disproportionate costs, harms, and burdens on registrants, their families, and the public. The editors write:

The aim of these laws is to ease public fear, reduce recidivism, and enable concerned citizens to take steps for self-protection. Yet extensive research demonstrates that these gains have not materialized. To the contrary, there is clear evidence, widely acknowledged by professionals in the field, that these laws are seriously counterproductive. They are expensive for local police to administer, unduly hinder the rehabilitation of ex-offenders, and ultimately defeat their own central purposes by impeding law enforcement and increasing the incidence of sexual offenses.

In this context, the ALI’s recommends sweeping reforms. Access to registry information would be limited to law enforcement use only—and only the most serious sexual offenders would be included on it. Sexual assault of a minor is one of those serious cases, but only when minor is younger than 12 and the offender is 21 years old or older; ensuring that close-in-age relationships between teens don’t land the older partner on the registry (unless another aggravating factor such as physical violence applies). Incestuous sexual assault of a victim under 16 also remains a registrable offense. However juveniles themselves are largely exempted from being included in sex offense registries.

For those who do end up on the registry, the harshest and most counterproductive restrictions of the current regime are removed, or limited only to cases where an individual, case-by-case risk assessment strongly supports the need for a particular measure. These include GPS monitoring, residency restrictions, and limits on Internet access, which are applied as a matter of course under the current registry regime. The length of registration is also shortened; most registrants will be removed virtually automatically after ten years, if they have not committed a new sexual offense.

For some, these reforms are not enough, and the ALI should be recommending the complete abolition of sex offense registries. But the ALI anticipates and dismisses this option, recognizing that their public popularity of sex offense registries make it politically impossible to do away with them altogether. Mitigating the worst features of the current public registry system is the next best option to address its harms, while also allowing police to access information that can facilitate high-priority investigations of serious sexual offenses.

Reforming sex offense law and policy is difficult at the best of times. But where reform groups have failed to make as much headway as they would like, the ALI is a prestigious organization whose recommendations carry significant weight with lawmakers and courts alike. As such, its endorsement of these reforms improves reformers’ chance to win both legislative and judicial victories. The new draft Model Penal Code on Sexual Assault and Related Offenses provides hope that more rational state sex offense laws may be on the horizon.

What should be done about the distribution of child sexual abuse material (CSAM) online? Attempts to answer this question often begin and end with looking to Internet platforms to address the problem. But there are limits to what Internet platforms can do, and pressuring them to “do more” translates into increased censorship and surveillance of their users. This disproportionately harms marginalized populations, while also hindering CSA prevention initiatives such as sex education, support communities, and research.

To bring focus to these neglected prevention interventions, Prostasia Foundation brought together CSA prevention experts and human rights activists to dialogue with the global RightsCon community at a community lab session titled “A public health approach to the CSAM problem: looking beyond Internet platform regulation,” held on June 9.

Prostasia’s Executive Director Jeremy Malcolm opened the session with a poll of the participants. This affirmed that most of them saw a public health approach to the CSAM problem—emphasizing the prevention of offending, by addressing the risk factors that cause it—as the most neglected approach, in comparison to Internet regulation and criminal justice approaches. Nevertheless, at the outset of the session only 21% of respondents were comfortable stating that prevention of CSA is possible.

The next of six co-facilitators of the session, Gilian Tenbergen, challenged this perception in her remarks. She introduced her research lab at SUNY Oswego, the Sexual Neuroendocrinology Lab, which studies the science of prevention of CSAM and related behaviors. We know that these are behaviors that can be prevented and concepts that can be understood, if we are willing to talk about these topics. The lab has projects that target the primary prevention by working with Minor-Attracted Persons (MAPs) and will be collaborating with Prostasia on an assessment of fictional outlets as a form of prevention. Dr. Tenbergen’s work is inspired by Germany’s more facilitative approach in this field (in comparison to the US).

Diego Naranjo from EDRi spoke next, drawing attention to the European Commission’s strategy against CSAM, which unfortunately includes problematic proposals regarding the surveillance of adults and children online. Institutions like European Data Protection Supervisor and the European Parliamentary Research Service criticized this strategy, which is not in line with UNICEF research and guidance on this issue. 

Mariel García-Montes from the Berkman Klein Center then spoke about how legislative attempts to augment governmental surveillance capabilities leveraged support from child trafficking organizations to gain traction in the Mexican Congress. To seek alternatives to the punitive approaches used in CSAM advocacy and youth, her research project surveyed youth organizations in the Americas working on questions of privacy from standpoints that put agency and collective responsibility at the center.

Rohin Garg from the Internet Freedom Foundation stated that CSAM is a widespread problem in India, and unfortunately the government’s approach has relied primarily on surveillance. He specifically mentioned a program from the police of Uttar Pradesh, who knew about sites that were hosting CSAM content, but instead of taking the content down they left the videos up, so that they could surveil those who viewed such content. In contrast, he said that sex education is much neglected in India.

Jenny Coleman from Stop It Now was unable to join the session in person, but her remarks were read by Prostasia Program Officer Xaverine Ndikumagenge. By offering support and resources to hold people responsible and accountable, Stop It Now helps to ensure that there is no sexual harm done to children, and that action is taken when there is risk of a child being abused. Jenny also said that we must understand the barriers to access to justice that exist, so that we can address what kids really need. 

During the discussion period, participants addressed the barriers that prevent policymakers from adopting an approach to CSAM that is based on public health principles. Gilian remarked that in legislation, unless you adopt a criminal justice approach, it can be very hard to propose any changes. Rohin agreed, stating that there is a justified sense of outrage from public on the streets and online, which is hard for legislators to ignore.

A participant from the floor noted that there are regional differences in ways countries look at regulation itself, and that in a lot of Asian countries a paternalistic approach is taken. Another participant stated that stigma is a barrier to sound policymaking, and that it creates other harms such as allowing abusers to train their victims not to talk. 

Gilian agreed, explaining how stigma dissuades people from seeking help, for fear of being reported. Additionally, researchers and treatment providers who work with stigmatized populations face secondary stigma by virtue of what we do. She reported being confronted with a sense of outrage: “how dare you? How can you do this?”

A participant from the floor questioned how much of this outrage was genuine, and how much was a pretext used by lawmakers to increase their surveillance powers. Diego also offered another explanation for the surveillance push, that he described as more banal, and at the same time more pernicious: that tech companies such as Microsoft are trying to "sell" their technology for any social problem they can imagine.

As the session closed, the poll that had been taken earlier was taken again, revealing significant development in the view of the participants over the course of the session. More than half of participants now considered CSA prevention to be possible, and twice as many as before viewed stigma reduction as an important intervention towards this end.

By consensus, participants adopted a strong declaration that reflected the themes of the session: "We encourage policymakers to adopt a comprehensive approach to combating CSA that is guided by public health principles and human rights standards."

Thanks to Mariel García-Montes for taking the notes on which this report is based.

July 29, 2021 at 2pm PT, 5pm ET, 10pm CET

When the most powerful lobbyist in Florida discovers that the nanny has sexually abused his daughter, he harnesses his extraordinary political power to pass the toughest sex offender laws in the nation. UNTOUCHABLE chronicles his crusade, and its impact on the lives of several of the 800,000 people forced to live under the kinds of laws he has championed. The film interweaves intimate portraits of men and women who have been branded sex offenders with the heartbreaking stories of those who have suffered sexual abuse. It is a film that pushes viewers toward an uncomfortable place, requiring them to walk in the shoes of those who have survived sexual abuse, but to still bear witness to the experiences of those we revile.

Erin Gould sits down to talk with Micah Waxman of Stop It Now -- an organization dedicated to helping stop the sexual abuse of children, while also trying to gain a better understanding and providing safe outlets for those with sexual thoughts about children. Stop It Now partners with Prostasia Foundation to provide professional support services for MAP Support Club.

Have you ever truly judged a book by it’s cover? I mean, looked at the cover, read the title, and then passed up any other information about or within the book before forming an opinion. In my experience, since first learning of this book and subsequently giving it a read, most of the people who hear the title have something to say about the book without bothering to read it.

The Trauma Myth: The Truth About the Sexual Abuse of Children--and Its Aftermath is a surprisingly accessible text on a tough subject. Author Susan A Clancy, is a cognitive psychologist and Associate professor in Consumer behaviour at INCAE as well as a Post-Doctoral Fellow at Harvard University. Clancy’s work is regarded as controversial in that she explores territory that is already thought to have been largely cemented in the psychology field for the sake of a fuller picture that takes more factors into account.

This is a fascinating read. Parts are tough to get through if you do not have a science/psych/clinical background. But for the most part, the book is really approachable. Case studies shed a lot of light in the victim's own words. The author’s own journey as she goes through the research process is really interesting to follow because in a lot of ways, you’ll probably find yourself on a similar journey. As to judging this book by it’s cover, I think anyone who does this and claims to be interested in supporting survivors is somewhat at odds with themselves. Far from suggesting that CSA does not cause trauma, the book takes a really good look at trauma science and real life survivors to gauge what trauma looks for them and why.

In The Trauma Myth, Clancy suggests that what we know about CSA and the trauma it causes are not as well understood as we think. She takes aim at everything from repressed memories to assigning PTSD to survivors who do not show signs of PTSD. The book also questions how abuse is viewed in the moment it occurs. Clancy posits that because of sexual immaturity and ignorance, the average CSA survivor does not report much distress when asked about how they felt when the abuse occurred. It appears that the bulk of the trauma comes later when survivors become aware enough to understand the nature of their abuse. 

Why does this matter? Why not treat all abuse like it fits the established trauma model? Clancy’s work shows that survivors are often saddled with guilt in the aftermath. Many are left feeling “dirty” or “wrong” later on because they feel they participated in their abuse. In situations where the abuse itself is not violent or scary in the moment, survivors are more likely to feel complicit. Recognizing this gives us a better idea of how to treat subsequent trauma and, more importantly, how to prevent feelings of guilt and shame from forming.

To me, this all leads to a really obvious tool we are not applying evenly. Comprehensive sex education including education on consent and bodily autonomy gives kids the tools to know what is inappropriate and when to tell someone. Kids who are more informed are more likely to report and/or stop their abuse as well as less likely to feel complicit, because they already know they should never have been asked to consent. Many survivors of less violent and longer lasting CSA often report that if their abuse had been more obvious and more acute they may have known for sure it was wrong and would have told someone.

In Clancy’s conlcusion she states “This book started with a simple question: Why is the experience of the sexual abuse, as described by victims, so different from how professionals portray and communicate it to the larger population?” Not much was known about CSA and it was largely not recognized until around the late 30’s. However, it didn’t get real attention until the 60’s when new science emerged and radical feminists chose to champion the cause of fighting CSA as a larger campaign to protect women and girls from male oppression and violence. This laid the groundwork for less honest and accurate data around CSA and trauma. Unfortunately, the louder voices of this movement colored CSA prevention and survivor support in ways that are still prevalent today.

It can be very hard for adults, especially adults who are not CSA survivors to conceptualize abuse that is not violently traumatic because adults view these events through their own eyes and lived experience instead of through the eyes of a confused child who, in some situations, enjoys the attention that can come with CSA. The Trauma Myth puts forth the idea that the trauma model we currently employ simply doesn’t fit all survivors. When we assign abuse narratives that don’t fit and then try to force them when a survivor says otherwise, we completely erase the experience of, frankly, what seems to be most survivors. One of the reasons survivors end up feeling so much guilt is because they believe they are at fault and should have stopped their own abuse.

Clancy herself talks a lot about thinking she was barking up the wrong tree with her research. She was fairly cemented in the model of what a survivor should be and should report and had to completely reorient her view of things in order to take in what the respondents to her studies had to say without adding her own narrative to their stories. She also talks about fighting her own sadness and revulsion at having to hear what she considered horrific events through adult ears. This is not, in any way, to downplay abuse or the effects it has on children, but rather to better understand what children may need to avoid abuse and heal afterwards.

If there is one thing I am walking away with from this book, it is that reconceptualizing how we study, treat, and support survivors only stands to improve the help and support offered. Many survivors spend huge parts of their lives blaming themselves and also unsure if their abuse was, in fact, abuse because it did not meet the idea of violence they had been implanted with. As a child abuse survivor myself, I can relate to this in a big way because I too, questioned whether my abuse was abuse because I was never hit. I was told abuse involved easy to understand concepts like violence equals hitting. I was not taught that verbal and emotional abuse and physical intimidation counted so I was an adult when I had to come to terms with this.

It’s really easy to write off what sounds contrary to what we think we know to be true. It’s also easy to write off controversial work as quackery. What’s less easy is figuring out how best to support survivors when the current methods don’t seem to take in the whole picture. Incomplete understanding leads to incomplete support and Clancy, via The Trauma Myth, seeks to highlight that fact.

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