Significant new changes to the U.S. Model Penal Code (MPC)—the first in 60 years—could make it more difficult to prosecute those who sell or buy children for sex. Additionally, it could block the public, including victims and child-serving organizations, from having access to sex offender registries.
These and other little-publicized revisions to the MPC were quietly approved on May 17, 2022, by the American Law Institute (ALI), a nonprofit organization comprising judges, attorneys, and law professors who provide legal recommendations to states to clarify, update, and standardize criminal laws. The MPC was created in 1962 and has not been revised until now. While modernization of the code was needed, the sexual assault chapter fails to recognize the modern ways in which children are sexually exploited. State legislatures aren’t required to adopt the MPC, but they historically have, in whole or in part. Judges use it to help interpret statutes when deciding cases.
If adopted by states, potentially within months, the MPC would set back decades of progressive child safety protections championed by The National Center for Missing and Exploited Children (NCMEC) over the last 38 years, according to NCMEC cofounder John Walsh.
“No matter how they try to justify it, ALI’s rationale is unacceptable and puts the perceived rights of criminals before children victimized by the atrocities of sexual abuse,” said Walsh. “If these changes are made to state laws, it would severely endanger children.”1
Changes to the MPC’s sexual assault chapter were the last revisions made in what has been a 10-year process. Initial outrage to the proposed changes to the sexual assault chapter, including from NCMEC, the National Association of Attorneys General (NAAG), and the Justice Department (DOJ), did prompt some adjustments.2 But several egregious recommendations remain in the MPC, according to those who opposed the changes:
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- “Buying” or “advertising” a child for sex would not be prosecutable under the trafficking statute, only under lesser crimes that would not require sex offender registration.
- Traffickers would be able to claim they made a “reasonable mistake” and didn’t know the victim was a child, known as the “I thought she was 18” defense.
- Public access to any information in the sex offender registry would be blocked. Currently, many people rely on the registry when deciding where to live and who their children can be with.
“Efforts to diminish these laws ignore the reality of how these horrific sex crimes are perpetrated against children today,” said Yiota Souras, general counsel and senior vice president of NCMEC.3
According to state attorneys general, the revised MPC would significantly weaken sex trafficking prosecutions and benefit traffickers and buyers. Making prosecutions more difficult and convictions harder to obtain, they said, would also diminish victims’ access to recovery services they are entitled to under child sex trafficking laws.4
For example, those who pay for sex with a child could be charged with the lesser crime of patronizing or physical or sexual abuse, but not sex trafficking, even though demand fuels the marketplace. While the vast majority of children trafficked today are sold for sex through online classified ads on websites, prosecutors could not use evidence of “advertising” a child to bring a sex trafficking charge.
Further, the revised code requires a trafficker or the third party controlling a trafficking victim to be identified to establish the crime of sex trafficking and also requires a prosecutor to prove that the buyer knew the victim they purchased was a trafficked child. However, a child may be so traumatized and controlled by his or her trafficker that they cannot identify that person, especially before receiving resources and services, which are often available only after being identified as a trafficking victim.
“Sex trafficking is a horrifically violent crime, especially when children and youth are victimized,” said Nancy E. O’Malley, district attorney for Alameda County in California.5
Prosecutors must be armed with sufficient laws to seek justice against offenders who sell, advertise, and purchase children and youth for sex. Without regard for the impact of sex trafficking on victims, these revisions to the MPC diverge from federal and many states’ trafficking laws by weakening prosecutors’ ability to hold offenders accountable for trafficking crimes and to secure essential recovery services for victims.
Traffickers are masters of manipulation and prey upon vulnerabilities using psychological pressure and intimidation, according to survivors of child sex trafficking. Children who run away, particularly from state social services care, are especially vulnerable.
Staca Shehan, who oversees NCMEC’s Child Sex Trafficking and Sex Offender Tracking teams, warned that the revisions, if adopted by states, would not only block public access to registries but also dismantle large portions of the sex offender registry system. The revised MPC recommends that several serious crimes against children be removed from the list of registerable offenses.6 Perhaps the change that could trigger the largest public outcry is the revision to block public access to sex offender registries because the wide access is considered to be unfair to offenders. If this recommendation is adopted by states, it would mean people could no longer check these registries, as they frequently do, to see if sex offenders are living in their neighborhoods.
Daycare providers, youth organizations, schools, volunteer groups, and businesses would also be blocked from having access to critical information when vetting employees or volunteers to determine if they are registered sex offenders and what sex crimes they’ve been convicted of in the past.
“The sex offender registry provides public access to information about registered sex offenders and is part of a layered approach to child safety used by survivors, their families, and the community,” Shehan said. “Prohibiting access to this information puts children at risk by decreasing informed decision-making for determining the safest options for childcare, who their sports coach should be, and the best routes for them to walk to school or the bus stop.”7
Last year, NCMEC’s Sex Offender Tracking Team assisted law enforcement with more than 22,160 requests to help find noncompliant sex offenders who were not living where they said they would be. Of those, only about 4,000 were located. Moreover, under the revisions, those sex offenders who were required to register would no longer have to provide key identifiers, including fingerprints, email addresses, or names they use online, making it more difficult to find them when they are not in compliance with the registration laws.
Over time, access to sex offender registry information has expanded and become more transparent. In 1996, U.S. President Bill Clinton signed Megan’s Law, enabling states to notify the public when a sex offender is released into their communities. The law was named in memory of Megan Kanka, a seven-year-old New Jersey girl who was raped and murdered in 1994 by a sex offender who lived across the street. The family had no idea that he had two prior convictions for sexually assaulting young girls.8
In 2006, U.S. President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act, which created a publicly accessible, online national sex offender registry, allowing the public to run one search spanning all states, territories, and many tribes.9 Ten years later, U.S. President Barack Obama signed International Megan’s Law, which expanded the consequences for failing to provide advance notice of international travel and increased the ability to track sex offenders.10
In its May 13, 2022, letter to ALI members, the U.S. Department of Justice (DOJ) said, if the MPC recommended changes are adopted, the tracking of sex offenders after their release from prison would be undermined and the sharing of information would be severely curtailed, “even to victims, child-serving organizations, and law enforcement.” Further, the letter stated, that international travel notification and passport marking for sex offenders under International Megan’s Law could not continue to function because of the prohibition of using sex offender information essential to international tracking and notification systems.11
DOJ requested the withdrawal of the revised chapter on sex assault, and along with NCMEC, let ALI know that, if the revised chapter was not withdrawn, both organizations would work to ensure states do not adopt the sexual assault revisions.
The outcry over the revised MPC from those responsible for prosecuting sex offenders and protecting victims comes at a time when reports of violent crimes against children, particularly on the internet, have been steadily increasing. NCMEC’s CyberTipline, the designated place in the United States where the public and electronic service providers report suspected child sexual exploitation, has seen the number of reports rise exponentially in recent years.
Last year alone, the CyberTipline received a record 29 million reports, the vast majority about child sexual abuse material, in which children are photographed or videotaped being sexually abused or raped. Eight percent of victims in actively traded images and videos were infants and toddlers and 59 percent were prepubescent. Videos capturing the abuse, some with audio, have recently surpassed the number of photographs, and some offenders live stream their abuse as it’s happening.12
Last year, NCMEC received more than 17,000 reports of child sex trafficking from parents, social workers, the public, and electronic service providers. Of the more than 25,000 cases of children reported missing to NCMEC in 2021 who had run away, one in six were likely victims of child sex trafficking.13
So why are these changes being made to the MPC and why now? They’ve been under study for nearly a decade but only recently came to light. Authors of the MPC revisions have acknowledged that many of their recommendations represent a “major departure” from current U.S. criminal laws and are a purposeful detour from the “strong currents of public opinion.”14
As a rationale for these changes, ALI members indicated they have difficulty treating a buyer as participating in the trafficking crime, in part because “the buyer’s encounter with a victim is usually brief.” They also think it’s unfair to attach the “stigma and sanctions” of sex trafficking to a buyer of sex with children.15
“Those who engage in conventional trafficking activity typically spend considerable time with their victims, while the buyer’s encounter with a victim is usually brief,” ALI said in the official Reporters’ Notes explaining the approved revisions related to patronizing underage or coerced victims of sex trafficking.16
Thus, the offense label of “Sex Trafficking” has highly misleading connotations when applied to the conduct of a one-time customer, whatever may be the customer’s awareness of circumstances in the background. Absent proof of the customer’s involvement in the trafficking activity itself, the associated stigma and sanctions, therefore, can be greatly disproportionate to the customer’s fault.17
Prosecutors, NCMEC, other child-safety advocates, and survivors strenuously disagree. Souras points out,
Buyers enable the crime of trafficking by arranging to pay money to rape and sexually abuse a child. If state prosecutors can hold traffickers liable, but can no longer prosecute buyers for trafficking, then half the abusers in a trafficking crime are allowed to escape liability for their involvement in the child being trafficked.18
In one Florida case, a 13-year-old girl was sold for sex to more than 100 customers-in a single month —at hotels and private homes all over the Miami area. Her traffickers called her “the breadwinner” because they brought in so much money from sexually exploiting her. At a court hearing on December 6, 2021, a federal judge sentenced her four traffickers to prison for 10 to 16 years for their roles in recruiting the missing child and selling her for sex through online classified ads. 19 But what happens to the 100 customers who paid up to $200 an hour to rape and sexually abuse her? Typically, nothing. Those who buy children for sex are rarely prosecuted, and when they are, they face far less serious charges for their involvement in trafficking a child. Investigative challenges include the transitory nature of the business, the use of cash in transactions, reluctance to put traumatized children on the witness stand, and anonymity of buyers.
The U.S. Congress acknowledged this in 2015 by updating federal law to clearly state that the crime of sex trafficking also applies to buyers. If states adopt the MPC revision, it will have the opposite effect, making buyers who purchase children immune from state trafficking charges, even though they can be as violent, abusive, coercive, and manipulative as traffickers.
After she was recovered in an undercover sting, the missing 13-year-old child trafficked in Miami demonstrated incredible resilience and bravery in her interviews with law enforcement. She shared that she was in pain after being raped and sexually abused so many times, sometimes by as many as 10 customers in one day. She recalled one customer was particularly rough, slapping her as he raped her. The prosecutor said the impact of these crimes on the child, who was plied with drugs to make her more compliant during the abuse, was “devastating.”20
Now that the MPC sexual assault chapter revisions have been approved, the burden has shifted to law enforcement, prosecutors, and advocates to ensure that these revisions are not implemented by state legislatures. The recommended statutory revisions encompassed in this updated version of the MPC do not reflect the realities of child sex trafficking and the impacts of sexual crimes against children. It is essential that society does not lose ground in protecting children.
Notes:
1John Walsh (cofounder, National Center for Missing and Exploited Children [NCMEC]), interview, April 2022.
2“U.S. Department of Justice and Attorneys General Responses” (responses to the American Law Institute’s revisions to the Model Penal Code), multiple letters (National Association of Attorneys General [NAAG] December 9, 2021; Lynn Fitch et al., May 12, 2022; Allison Randall et al., May 13, 2022) and NAAG statement (March 4, 2022).
3Yiota Souras (general counsel/senior vice president, NCMEC), interview, June 2022.
4“U.S. Department of Justice and Attorneys General Responses,” multiple letters (NAAG, Fitch et al., Randall et al.), and NAAG statement.
5Nancy E. O’Malley (district attorney, Alameda County, CA), interview, July 2022.
6Model Penal Code § 213.11A; Staca Shehan (Child Sex Trafficking and Sex Offender Tracking teams, NCMEC), interview, July 2022.
7Shehan, interview, July 2022.
8Megan’s Law, Pub. L. No. 104-145, 110 Stat. 1345 (1996).
9Adam Walsh Child Protection and Safety Act, Pub. L. No. 109-248, 120 Stat. 587 (2006).
10International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders, Pub. L. No. 114-119, 130 Stat. 15 (2016).
11Allison Randall et al., letter to American Law Institute (ALI) members, May 13, 2022.
12NCMEC, “Our 2021 Impact.”
13NCMEC, “Our 2021 Impact.”
14Stephen J. Schulhofer and Erin E. Murphy, “Model Penal Code Tentative Draft 6,” (ALI, 2022), 72; Stephen J. Schulhofer and Erin E. Murphy, “Model Penal Code Tentative Draft 5,” (ALI, 2022), 515.
15Schulhofer and Murphy, “Model Penal Code Tentative Draft 6,” 40.
16Model Penal Code § 213.9 (4).
17Schulhofer and Murphy, “Model Penal Code Tentative Draft 6,” 40.
18Souras, interview, June 2022.
19Janelle Griffith, “Florida 13-Year-Old’s Sex Traffickers Nicknamed Her ‘Breadwinner’ Prosecutors Say,” NBC News, December 4, 2019.
20Griffith, “Florida 13-Year-Old’s Sex Traffickers Nicknamed Her ‘Breadwinner’ Prosecutors Say”; U.S. Department of Justice, U.S. Attorney’s Office, Southern District of Florida, “Four Defendants Sentenced in Connection with Trafficking 13-Year-Old Minor Victim,” news release, December 6, 2021.
Please cite as
Michelle DeLaune, “Child Protection Laws & Offender Registry Under Threat,” Police Chief Online, October 12, 2022.
