Proposed Changes to State Criminal Law Could Put Child Safety at Risk
5/17/2022
Today the American Law Institute approved significant changes to the Model Penal Code, setting back decades of progressive child safety protections.
ALI doesn’t want you to be able to check registries to see if convicted sex offenders are living in your neighborhoods or applying for a job working with children because it’s unfair to the offender.
We need your help to ensure legislatures don’t implement these changes in your state.
He was a typical, baseball-obsessed 6-year-old boy, tagging along with his mom to a Florida shopping mall on a hot summer day. He asked for permission to check out some video games one aisle over at the Sears store while she shopped for lamps. Then he vanished.
His frantic parents, John and Revé Walsh, had to conduct their own search for their son, Adam. Back then, on July 27, 1981, there were no 24/7 hotlines, no AMBER Alerts, no rapid-response teams, no geo-targeted missing child posters, no National Center for Missing & Exploited Children (NCMEC). Two weeks later, Adam’s severed head was found in a canal 100 miles away.
Although stranger abductions are rare, missing children are not. Over the next 40 years, Adam’s parents channeled their rage and grief into helping other families of missing children. They co-founded NCMEC, they pushed for new child safety laws on Capitol Hill, and they always spoke out for child protection measures that most people take for granted today. Now Adam’s parents fear a little-known non-profit organization comprised of judges, attorneys and law professors is about to set back decades of child protection laws.
“I need you to speak out against this effort to strip existing protections for children,” John Walsh, longtime host of America’s Most Wanted and, now, In Pursuit with John Walsh, said in a recent video message alerting the public. “Let your legislators know how you feel about this injustice.”
On May 17, the American Law Institute, or ALI, will vote on sweeping revisions to the Model Penal Code which, if adopted by state legislatures, would roll back child safety laws championed by NCMEC over the last 38 years.
Initial outrage from NCMEC, the Justice Department, state attorneys general and many others, prompted some adjustments. But several egregious proposals remain unaddressed, including something many people depend on to decide where they live and who to allow their children to be with. Under ALI’s recommendation, the public would no longer have access to state sex-offender registry websites or any information about registered sex offenders in their communities.
Not only would the public lose access to registry information, but those convicted of sharing images and videos of children being sexually abused, exploited, even raped on the internet would no longer have to register as sex offenders. And people who purchase children for sex would be immune from state sex trafficking charges and wouldn’t be listed on the sex offender registry.
“Buying kids for sex and trading images online of children being sexually abused and raped are 21st century forms of sexual assault of children,” said Yiota Souras, general counsel of NCMEC. “ALI’s efforts to diminish these laws ignore the reality of how these horrific sex crimes are perpetrated against children today.”
If these recommendations are approved by ALI, and adopted by state legislatures, this means that convicted sex offenders could be living in your neighborhood, coaching your children’s sports team or applying to be your child care provider and you’d be prohibited from finding out about it. You wouldn’t be able to determine the safest places for your children to play outside or trick-or-treat or the best routes for them to walk to the school bus.
Daycare providers, youth organizations, schools, volunteer groups and businesses that use the registries when hiring staff or looking for volunteers would be blocked from critical information about who sex offenders are, where they live and work and if they’ve committed crimes against children.
ALI’s recommendations also go against federal law in place since 2015 and would exclude buyers of children for sex from liability under state trafficking charges. As a rationale for these changes, ALI indicated it has difficulty treating a buyer as participating in the trafficking crime, in part because “the buyer’s encounter with a victim is usually brief.” ALI also thinks it’s unfair to attach “the stigma and sanctions” of sex trafficking to a buyer of sex with children.
“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,” John Walsh said. “We cannot allow this to go on.”
Last year alone, NCMEC’s CyberTipline received more than 29 million reports of suspected child sexual exploitation, nearly all involving abusive images and videos. Of children seen in child sexual abuse imagery reported multiple times to NCMEC, 8% depict infants/toddlers and 59% depict prepubescent children. With the explosion of CSAM being shared on the internet and child sex trafficking occurring in every corner of America, why is ALI proposing changes to exclude these horrific crimes from the sex offender registry?
The authors of the revised Model Penal Code, which many states rely on to enact and update their criminal laws, have said these revisions are needed to correct the impact of the public’s “emotions and intuitions” relating to sexual offenses.
Yet they acknowledge that many of their recommendations – a culmination of an almost decade long project – represent a “major departure” from current U.S. law.
In the face of unfathomable grief and loss, John and Revé Walsh have dedicated their lives to building legal safeguards to keep children in this country safer. Child protection has been at the center of all of their efforts. ALI has no right to dismantle decades of work to protect our children in the name of modernizing the law.
On behalf of child victims, the Walshes call on you to express your outrage if ALI approves the revised Model Penal Code. Join NCMEC in opposing adoption of this model code in every state legislature.
We hope that you are as concerned about these developments as we are and encourage you to share this blog with your friends, family and colleagues. Stay tuned to this blog and NCMEC social media for updates on this topic.
What is ALI?
The American Law Institute (ALI) is a private, non-profit organization composed of judges, attorneys, and law professors. ALI publishes restatements of the law, model codes, and principles to provide clarity and consistency to the law. While influential with courts and state legislatures, ALI’s publications are not law and do not replace existing laws and statutes.
What is MPC?
The Model Penal Code (MPC) is a set of criminal law principles issued by the American Law Institute (ALI) in 1962 to help state legislatures standardize criminal statutes. Since it was issued, many states have enacted criminal laws derived from the MPC and courts often use the MPC to interpret criminal laws. On May 17, 2022, after completion of a 9-year project, ALI members will vote on whether to approve sweeping changes to the MPC on Sexual Assault and Related Offenses.
Until she was recovered during an undercover sting, 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 Dec. 6, 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. But what happens to the 100 “customers” who paid up to $200 an hour to rape and sexually abuse the child? Typically, nothing. And if proposed revisions to the Model Penal Code are adopted, states would lose the ability to prosecute anyone who paid to rape and sexually abuse this 13-year-old child on a sex trafficking charge.
Those who buy children for sex are rarely prosecuted, and when they are, they typically face far less serious charges for their involvement in trafficking a child. Investigative challenges – 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 – are often cited as reasons why buyers face little risk of being prosecuted. This is true even though demand from buyers is precisely what fuels the sex trafficking marketplace.
Congress acknowledged this in 2015 by updating federal law to clearly state that the crime of sex trafficking also applies to buyers. But the key purpose of that law is now in danger of being jettisoned. Under sweeping changes that an influential group of legal experts, the American Law Institute (ALI), have made to the nation’s Model Penal Code, buyers who purchase children for sex would be immune from state trafficking charges, even though it’s an established fact that they can be as violent, abusive, coercive, and manipulative as a trafficker. Under ALI’s revisions, buyers could only be prosecuted for the physical and sexual abuse they inflict on the child.
After being recovered, the 13-year-old child in the Miami case demonstrated incredible resilience and bravery in her interviews with law enforcement. She shared she was in pain after being raped and sexually abused so many times, including 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.”
“Buyers enable the trafficking crime by arranging to pay money to rape and sexually abuse a child,” said Yiota Souras, General Counsel for the National Center for Missing & Exploited Children. (NCMEC) “If state prosecutors can hold traffickers liable, but aren’t permitted to 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.”
If state legislatures adopt these and other recommended changes, as they’ll be encouraged to do in the coming months, it would roll back decades of child safety laws championed by NCMEC over the last 37 years. ALI has indicated as a rationale for these changes that it has major difficulty treating “mere customers” as traffickers and expressed other sympathetic views toward these “mere customers,” including:
- Buyers may not be aware of the coercion traffickers use or that their victim is underage.
- It’s unfair to attach “the stigma of sex trafficking” to a buyer of sexual services, even when a child is victimized.
- While traffickers typically spend considerable time with their victims, “the buyer’s encounter with a victim is usually brief.”
- Absent greater involvement, punishment as a trafficker for a single act of patronizing a trafficking victim is out of line with the gravity of the offense.
- It’s often difficult to establish that a customer was aware trafficking activity was involved.
These justifications from ALI for why someone purchasing sex with a child is less responsible for that child’s victimization are outrageous. In NCMEC’s view, the sweeping revisions to the Model Penal Code significantly endanger children by making it more difficult to prosecute those who buy and sell children for sex.
We are not alone in this view. The National Association of Attorneys General (NAAG) has published a detailed policy letter urging ALI to reject the proposed Model Penal Code changes because, like us, these state Attorneys General are disturbed by changes that would weaken laws against sex trafficking and sexual abuse, assault, and sexual exploitation.
With child sex trafficking happening in every type of community in America, and child sexual exploitation on the rise, why is ALI proposing changes to go easier on those who are involved in trafficking children? The authors of the revised Model Penal Code have said these revisions are needed to correct the “history of overwrought emotional reaction” often triggered by sexual offenses, even while acknowledging that “the lack of liability in certain cases may be unsatisfying.” They also realize that many of their recommendations represent a “major departure” from current U.S. laws and are a purposeful detour from the “strong currents of public opinion.”
It’s vital that the public understand ALI’s effort to strip existing protections for children – and to let their legislators know how they feel about that. When state legislatures are in session in the coming year and the revisions to the Model Penal Code are proposed, we ask you to raise your voices to protect child safety.
Please remember that NCMEC never stops – we will continue to advocate for strong laws to protect children and keep you updated about how the revised Model Penal Code creates significant child endangerments. Please take a few minutes to review The Issues section to learn more and share this information with others via social media. You can also sign up to join NCMEC’s advocacy on this issue and learn how to help in your state if revised legislation is proposed. We all have a role in working to keep children safer.
If you’re convicted of selling children to someone to rape or sexually abuse them, you’d no longer have to register as a sex offender. Child sex trafficking would be viewed differently going forward – no longer a sex crime, but a financial one.
Likewise, when a non-family member kidnaps a child, an exceedingly rare but devastating crime, the abduction itself (one of the most serious crimes on the books) wouldn’t be enough to land that offender on the registry either. The same would be true for offenders who’ve been convicted of sexually assaulting children – unless they do it more than once.
If these recommendations are adopted by state legislatures, convicted sex offenders like these could be living in your neighborhood, yet you’d never know it because you would no longer be allowed to check the registry. Nor would daycare providers, youth organizations, schools, volunteer groups or businesses. They, too, would be blocked from having access to critical information about where sex offenders live and work and what crimes they’ve committed.
These are just a few of the sweeping changes that an influential group of legal experts, the American Law Institute (ALI), have made to the nation’s Model Penal Code. If state legislatures adopt these changes, as they’re encouraged to do, they would roll back decades of child safety laws, many of which have been championed by the National Center for Missing & Exploited Children over the last 37 years.
“We need your help to ensure that these misguided recommendations aren’t adopted in your state,” said John F. Clark, NCMEC’s president and CEO. “The stakes are staggering. Please join us and speak up for child protection. Let your elected officials know these proposed changes will have a devastating impact on the safety of our nation’s children. We need your voice.”
These changes to state laws would severely endanger children. Sexual assault, kidnapping, sharing child sexual abuse images, buying and selling a child for sex – these violent sexual crimes, sadly, are not rare and have a devastating and lifelong impact on children and their families. We see the harm done to these children every day at NCMEC.
The changes in the Penal Code are astounding in their scope and the total disregard for the damage sex offenders have done to their victims. It gets worse:
- Traffickers advertising a child for sex or those purchasing a child for sex: No trafficking crime.
- Offenders who abduct, entice or traffick a child for sex or, share child sexual abuse material don’t have to register as a sex offender.
- All public access to information about registered sex offenders eliminated.
- Sex offenders no longer required to provide key identifiers when they register, such as when they were born, fingerprints or names they use online.
- No registration requirements if offenders are younger than 21 and sexually assault a child older than 12. Or if they sexually assault a child they are related to, unless the child is younger than 16.
So why have these drastic changes been made and why now? The authors of these revisions pointed to the need to correct the “history of overwrought emotional reaction” often triggered by sexual offenses, even while acknowledging that “the lack of liability in certain cases may be unsatisfying.”. They also 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.”
Again, so why? How do you explain to the public that, if convicted, a 20-year-old man who sexually abused a 10-year-old child or a 40-year-old man who sexually abused a 12-year-old child will not be required to register as a sex offender? Why is that?
These crimes happen much more frequently than people realize. In 2020 alone, NCMEC staff helped law enforcement with more than 80 reports of those rare, non-family abductions. Through our CyberTipline, the vehicle in the U.S. for reporting child sexual exploitation, we handled more than 37,000 reports of suspected online enticement of a child for sexual abuse and more than 15,000 reports of child sex trafficking. And last year alone we received more than 21 million reports pertaining to online child sexual abuse material.
Unfortunately, none of us — not child advocates, not survivors, not their families— were consulted as the new Model Penal Code was drafted over the last nine years. Advocates’ views about sex-offender registries were dismissed as based on “emotions or intuitions.”
So about that emotion and intuition. We need it now more than ever. Please sign up to receive updates on how you can help in your state as we look ahead to the next legislative session. Do it for our nation’s children. Show them that emotion.
Letters to ALI
In candid letters to the American Law Institute, NCMEC explains how sweeping revisions to the Model Penal Code create significant child endangerments by making it more difficult to prosecute those who buy and sell children for sex and dismantling large portions of the sex offender registry system.
The Issues
NCMEC has identified three core child safety concerns from the American Law Institute’s revisions to the Model Penal Code. These issues are highlighted below in an overview document and each issue is summarized in one-page briefs.
U.S. Department of Justice and Attorneys General Responses
The U.S. Department of Justice, the National Association of Attorneys General, and Attorneys General throughout the country have expressed their fundamental concerns with the American Law Institute’s revisions to the Model Penal Code. These concerns are highlighted in the statement and multiple letters below.
