What Makes 'Model' Sexual Offenses - A Canadian Perspective

Abstract

This paper, originally presented at a conference on the US Model Penal Code, discusses how Canadian reform of the law of sexual assault could contribute to a new Model Code. While criteria for "modelness" are elusive, model offenses must at least be consistent with constitutional norms and concerns about legality, such as fair notice. Equality rights should not be neglected. The author discusses both Canadian efforts to make sexual assault law egalitarian and criticism of such efforts. More generally, in the context of a body of law generating significant controversy, a model law should contain a clear articulation of what its framers appeal to for legitimacy. Concern is expressed that one way of seeking legitimacy while not addressing the problem of crimes against distinctively victimized and marginalized groups is to satisfy dominant concerns while adopting a posture of embattled and principled constraint. Claims to restraint or balance should not mask a political perspective antagonistic to the equality interests of vulnerable groups. Specific issues are addressed: should model sexual assault offenses be gender neutral; should there be any relationship immunity; what is the appropriate scope of criminal behavior; and what are the appropriate controls on fact determination?