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1998

Dogmas of the Model Penal Code Dogmas of the Model Penal Code

George P. Fletcher Columbia Law School, gpfrecht@gmail.com

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Recommended Citation Recommended Citation George P. Fletcher, Dogmas of the Model Penal Code, 2 BUFF. CRIM. L. REV. 3 (1998). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1062

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Dogmas of the Model Penal Code

George P. Fletcher*

The Model Penal Code has become the centraldocument of American criminal justice. It has hadsome effect on law reform in over 35 states.' Moresignificantly, it provides the lingua franca of mostpeople who teach criminal law in the United States.Most academics think that the precise definitions ofculpability states in section 2.02(2)2 are really neat,and they applaud the liberal rules that restrict theuse of strict liability to administrative fines. Indeed,all things considered, for a code drafted with almosttotal indifference to what might be learned fromEuropean models, the Model Penal Code is an im-pressive achievement.

The Model Penal Code's popularity is due proba-bly to the lack of competition. Among the materialsconventionally regarded as authoritative in commonlaw jurisdictions, there is not much of a choice. Mostteachers have contempt for the cases that appear inthe case books. When I ask law professors to name acase that expounds the law in a way that they admire,they throw up their hands. In most other fields-torts,contracts, constitutional law, even civil procedure-there are many judicial opinions that command re-spect. Not so in the criminal law. Nor do the existingcodes provide much solace. The adaptations of theModel Penal Code in states like New York and Illinoislack the conceptual integrity of the model statute. Andsurely, no one would take a 19th century state code,such as the California Criminal Code, as the model forproper analysis.

* Cardozo Professor of Jurisprudence, Columbia University Schoolof Law. © 1998 by George P. Fletcher.

1. Richard G. Singer, Foreword to Symposium, The 25th Anniver-sary of the Model Penal Code, 19 Rutgers L.J. 519, 519 (1988).

2. Model Penal Code § 2.02(2) (Proposed Official Draft 1962).

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One could teach criminal law on the basis of theo-retical articles and books. This is the way law istaught in all Continental jurisdictions and to a largeextent in England and Canada, but for Americans, theuse of real books to teach the law runs contrary totradition. Books, however good they may be, are onlysecondary authority. They do not have the feel of the"real thing." Faute de mieux, the Model Penal Code of-fers itself to law teachers as an elegant and coherentalternative to the chaotic and ill-reasoned case opin-ions.

The downside of the Model Penal Code's influenceis that it has come to shape our understanding ofwhat a code should do in the field of criminal justice.The resulting assumptions are what I call the dogmasof the Model Penal Code. I formulate these assump-tions as propositions of ironic advice to a legislature.

DOGMA I: DEFINE AS MANY CONCEPTS AS YOU CAN-WHETHER YOU ARE COMPETENT TO DO SO OR NOT.

The Code ventures precise definitions on matterswhere many philosophers fear to tread. Nothing ismore controversial than the concept of the voluntaryaction as a precondition of criminal responsibility. Butthe Model Penal Code section 2.01(2)' claims it has theanswer. It merely defines what is not a voluntary act.The negative list includes "a reflex or compulsion '

and other such paradigmatic instances that we tend toexclude from the category of self-actuated action. Andthen section 2.01(2) sums up the exclusion with thecatch-all provision: any "bodily movement that.., isnot a product of the effort or determination of the ac-tor, either conscious or habitual."5 Implicitly, there-fore, the Code defines action as a bodily movementproduced of the will-or as willed bodily movement.

3. Id.4. Id. § 2.01(2)(a).5. Id. § 2.01(2)(d).

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Would that the world were so simple-that the powerto legislate were the power to solve philosophicalproblems. Whether this conception of action is corrector not proved to be one of the most hotly debated is-sues in German criminal law for several decades afterWorld War II.

The drafters of the Model Penal Code may nothave been aware that they had committed themselvesto a "causal" as opposed to a "teleological" theory ofaction,6 but in fact they did. And what was the greatutility of tackling this philosophical conundrum? Inthose cases in which there might be an issue ofwhether, say, sleepwalking was or was not a humanaction, the courts have no trouble consulting thescholarly literature on the subject.

Or consider Model Penal Code section 2.03, whichdares to probe the mysteries of causation:

(1) Conduct is the cause of a result when:

(a) it is an antecedent but for which the result inquestion would not have occurred; and

(b) the relationship between the conduct and resultsatisfies any additional causal requirements imposedby the Code or by the law defining the offense.7

This provision, of course, does not tell you much be-cause the problems of "proximate cause" are deferredto other code provisions. The remaining subdivisionsof section 2.03 provide more detailed solutions for theproblem of remote damage in cases pitched to particu-lar modes of culpability, e.g., purpose, recklessness,

6. For an explanation of the difference between these two theoriesof action, see George P. Fletcher, Rethinking Criminal Law 434-39(1978).

7. Model Penal Code § 2.03(1).

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etc.' Most of the stipulations end, however, with theproviso that the defendant should be criminally liablefor remote harm only if the harm is not too remote "tohave a [just] bearing on the actor's liability or on thegravity of his offense."9 Including the word "just" inthis proviso, of course, leaves all the difficult problemsunresolved, and therefore the attempted verbal com-passing of the concept turns out to be words with littleconstraining effect. The philosophical problem of cau-sation turns out to be as difficult as the theory of ac-tion. With a stroke of the pen, legislators unequippedfor the tasks cut through shelves of books they havenever read.

One of the celebrated achievements of the ModelPenal Code is the definition of the four mentalstates-purpose, knowledge, recklessness, and negli-gence-in section 2.02(2). 0 These are highly complexdefinitions, hardly worth repeating here. Suffice it tosay that the definitions are so complicated that onewonders whether any judge has ever mastered them.But even if they could be easily mastered, my objec-tion is worth repeating. Are these matters reallywithin the province of legislative wisdom and author-ity? After all, is there one accessible truth about thedistinction between intentional and negligent con-duct? Is the matter appropriately subject to legislativewill?

My doubts about legislative competence in theseareas-action, causation, and mental states-arenourished by a glance at the 1975 German CriminalCode. The German statute makes no effort whatsoeverto define these contested concepts. Of course, Germancriminal liability presupposes a human action, just asAmerican law does. But the German Code drafterssaw no need to hazard a definition on a matter subjectto philosophical controversy. Similarly, with causation

8. Id. § 2.03.9. Id. § 2.03(2)(b), (3)(b).

10. Id. § 2.02(2).

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and indeed with the concepts of intention and negli-gence. The German Code uses all these concepts andspecifies the consequences of causing harm or causingit intentionally, but the text contains no definition ofthese foundational elements.

Why, then, might the Model Penal Code venturedefinitions where the German drafters wisely abstain?The simple explanation is that the American approachto the drafting of a code proceeds on the assumptionthat the code must rest on its own bottom. It is notembedded in a theoretical literature that elaboratesthe essential concepts necessary for working with thecode. We might call a code of this sort imperialistic. Itseeks to displace not only the encrustation of the caselaw but also the teachings of scholars. It purports tobe a comprehensive guide to the solution of the prob-lems it addresses. Of course, the courts must apply thecode and resolve some problems in the interstices ofits provisions. Scholars are left with the residual taskof writing commentary on the code and the case law.

DOGMA II: WRITE PROVISIONS THAT SEEM PRECISE BUTTHAT JUDGES COULD NEVER UNDERSTAND.

A good example of this tendency are the provi-sions on culpability states already mentioned. Twoprovisions that could be very simple-those on pur-posely and knowingly committing offenses-dependon the subtle classification of each criminal act intothe elements of the nature of the conduct, the conse-quences, and the circumstances. Each of these threecategories require a different mental element for eachof the two types of culpability. In all, then, the ModelPenal Code uses four, perhaps five, different mentalattitudes to describe two forms of culpability:

1. awareness of the element

2. practical certainty of the element

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3. conscious object of the element

4. believes or hopes that the element exists

Needless to say that these four mental states could beallocated to the categories of nature, consequences,and circumstances of offenses in any number of differ-ent ways. There is nothing in the Model Penal Code tosuggest that the present allocation is rational or co-herent. As a result it is very difficult to rememberwhich mental attitude goes with which category andwhich level of culpability. I would be greatly surprisedif more than a handful of sophisticated judges actuallyunderstood and applied these overly complex provi-sions.

Another example of disaster in complexity is thedefinition of unlawful force in section 3.11(1). Recallthat unlawful force is a key provision in a number ofprovisions on the justified use of force, particularlyself-defense, which requires that the actor reasonablybelieve that the use of force is "immediately neces-sary" to counter the use of "unlawful force." 2

German law has a similar provision," which on itsterms is very sensible. If the other side is acting law-fully, it should be improper to resist him with the useof defensive force. But the German Code would notdeign to define "unlawful force." Open any Germantextbook and you will immediately find a clear andstraightforward explanation that unlawful force isforce that is unjustified but possibly excused. TheGerman Code does not define the distinction betweenjustification and excuse. That is something you learnby studying criminal law.

11. Id. § 3.11(1).12. Id. § 3.04(1).13. 4 The German Penal Code of 1871, The American Series of For-

eign Penal Codes (Gerhard 0. W. Mueller & Thomas Buergenthaltrans. 1961).

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Compare the simplicity of the German approachwith this prolix outpouring of words:

(1) "unlawful force" means force, including confinement,which is employed without the consent of the personagainst whom it is directed and the employment of whichconstitutes an offense or actionable tort or would consti-tute such offense or tort except for a defense (such as theabsence of intent, negligence, or mental capacity; duress;youth; or diplomatic status) not amounting to a privilegeto use the force. Assent constitutes consent, within themeaning of this Section, whether or not it otherwise islegally effective, except assent to the infliction of deathor serious bodily harm.14

It is almost as though the drafters wanted the ModelPenal Code to resemble a panoply of tax regulations.Criminal codes are not written for erudite specialists.They should be written so that average people and av-erage lawyers and judges can understand their terms.

The fact is that this convoluted section 3.11(1)"5

says exactly the same things as the German formula:unlawful force is unjustified but possibly excusedforce. The only difference is that in the late 1950s thedrafters of the Model Penal Code could not call upon atheoretical literature in English that would have ex-plained these elementary points to them, and the ideaof looking abroad for guidance would have been an in-sult to the hegemony of American power and thecommon law.

Yet this is only partly the fault of the Model PenalCode drafters. The academic community in the UnitedStates had done nothing to develop the conceptualstructures upon which codifiers could draft succinctand elegant provisions. If all the academic communitydoes is comment on the un-wisdom of the case law, thedrafters of codes must rely entirely on their wits to

14. Model Penal Code § 3.11(1).15. Id.

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further the progress of the law.Section 3.11(1)16 offers us many lessons. The first

is a lesson in conceptual breakdown, which occurswhen there is insufficient attention paid to the build-ing blocks-like justification and excuse-that arenecessary for intelligent drafting. Second, as an un-duly complex and incomprehensible provision in amodel code, section 3.11(1) 17 has found adoption invery few states. 8 The point is that if provisions in amodel code do not display their inner logic and neces-sity, local state drafters are likely to ignore them. Thismessage comes, as we shall see, with regard to otherproposals of the Model Penal Code.

DOGMA III: ASSUME THAT YOU AND YOUR DRAFTINGCOMMITTEE ARE THE ONLY SMART LAWYERS WHO HAVE

EVER LIVED.

The Model Penal Code expresses contempt notonly for European thinking about criminal law butabout our own history. It does everything possible todistance itself from the common law text writers andthe crystallization of concepts in the law of homicideand theft. Not even the notion of intentional crimesurvives. The concept is supposedly too confusing formodern lawyers. It is better to start over with the dis-tinction between "purposely" and "knowingly" com-mitting an offense. The term "material elements of theoffense" is made to include the absence of all substan-tive defenses, which leaves the Code without a term torefer just to the elements that constitute the core ofthe prosecution's case. The Code abolishes the conceptof malice and changes the name of provocation to

16. Id.17. Id.18. American Law Institute, Model Penal Code and Commentaries §

3.11, at 159, cmt.1, n.5, (Official Draft and Revised Comments 1985)(citing only six states that have adopted similar definitions of unlawfulforce).

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"extreme mental or emotional disturbance." As formu-lated by the Supreme Court in Patterson, it is per-fectly sensible to think of psychological provocationnot as a denial of the prosecution's case-in-chief but asan "affirmative defense" with the burden of persua-sion on the defendant. 19

In the field of theft offenses, the Code simplyabolishes the historically crafted distinctions betweenlarceny and embezzlement, which gave the commonlaw offenses sharp edges, well designed to hold offzealous prosecutors seeking to punish all forms of dis-honest behavior. That all European legal systems rec-ognize this distinction is simply of no moment.

The arrogance of the Model Penal Code draftersoverwhelms. The American Law Institute preemptsthe role of scholars and theorists by seeking to defineconcepts better left to philosophical deliberation. Theyignore all European teaching. They abolish conceptsthat crystallized over time in the evolution of thecommon law. Yet perhaps it takes arrogance of thesedimensions to create a legal monument of the influ-ence the Model Penal Code commands.

DOGMA IV: PRETEND TO SUBSCRIBE TO THE RULE OFLAW.

The Model Penal Code makes a strong commit-ment to the principle nulla poena sine lege in section1.05(1): 'No conduct constitutes an offense unless it isa crime or violation under this Code or another statuteof this State." ° Would that it were so.

Just a few provisions later, in section 2.01(3), theCode provides:

Liability for the commission of an offense may not bebased on an omission unaccompanied by action unless...(b) a duty to perform the omitted act is otherwise im-

19. Patterson v. New York, 432 U.S. 197 (1977).20. Model Penal Code § 1.05(1).

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posed by law.2'

This sounds good except that the term "law" in thisprovision refers to the case law. The earlier provisionrequires definition of all offenses either by the Code orsupplementary statute. There is no reference to thepossibility of common law duties to rescue others indistress. Had the drafters turned their attention to theContinent, they would have discovered that Frenchjurisprudence prohibits this mode of judicial expan-sion called commission par omission. The French, aswell as virtually all other Continental jurisdictions,approach the duty to rescue by imposing a specialstatutory duty to render aid at the scene of accident.The violation occurs whether a harmful result ensuesor not. In contrast, the Model Penal Code permitspunishment for murder if the non-rescued victim diesand the court finds a common law duty to render aid.To their discredit, German courts also permit convic-tion for the offense in chief on the basis of a judiciallyimposed duty.

The point that amazes me is that there is virtu-ally no discussion in the English language literatureof this breach of rule-of-law values. Even if we con-tinue to violate the principles we purport to endorse,we should at least be forthright about what we aredoing.

DOGMA V: WREAK THEORETICAL CHANGES,INADVERTENTLY IF POSSIBLE.

We turn now from general flaws in the Model Pe-nal Code to some specific problems in the drafting ofprovisions in the general part. Article III, addressingthe general theory of justification, had brought severalsignificant changes to the way Americans think aboutclaims of justification, particularly self-defense. Most

21. Id. § 2.01(3).

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of my comments will focus on section 3.04, which pro-vides:

[Subject to later exceptions], the use of force upon or to-ward another person is justifiable when the actor be-lieves that such force is immediately necessary for thepurpose of protecting himself against the use of unlawfulforce by such other person on the present occasion.

The location and the wording of this provisionraises major theoretical issues. First, coming as it doesafter the general provision of lesser evils, section3.02,23 the Model Penal Code suggests that self-defense is merely an instantiation of the generalprinciple that conduct is justified as lesser evils, ac-cording to section 3.02(1)(a), which provides thatwhenever "the harm or evil sought to be avoided bysuch conduct is greater than that sought to be pre-vented by the law defining the offense charged."24

Some people think that this is the correct way of in-terpreting self-defense, even though in fact it is ap-propriate to cause much more harm in the act of self-defense than is threatened against the defender. It isclearly permissible to kill to avoid a rape. In order tofit this shared understanding under the principle sec-tion 3.02,25 one has to gerrymander the argument byadding all sorts of interests to the side of the defense,e.g. the social utility of deterring unlawful aggression.It is not clear why the Model Penal Code should insiston interpreting all claims of justification as instancesof lesser evils. Yet for good or ill, the Code has had theimpact of inducing American lawyers to think of self-defense as a specific application of section 3.02.26 NewYork lawyers have even developed the practice of re-

22. Id. § 3.04(1).23. Id. § 3.02.24. Id. § 3.02(1)(a).25. Id. § 3.02.26. Id.

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ferring to claims of self-defense as the "defense of jus-tification." Before one brings about this kind of theo-retical shift, it might be worthwhile to pause and con-sider whether the shift is sound. I think that it is not.

Second, the drafting of section 3.04 makes the ap-peal to self-defense dependent on the whether the be-lief of the actor is "that such force is immediately nec-essary."2 7 Prior to the Model Penal Code, the generalconsensus of Western legal systems was that self-defense presupposed a subjective requirement ofknowledge and belief in addition to an actual attackon the defendant. Paul Robinson has argued repeat-edly that the actual attack should be sufficient toground the defense, but apart from a few isolated ab-errations, this view has never prevailed yet in prac-tice. Yet the way the Model Penal Code is drafted, itappears to go to the extreme precisely the opposite ofRobinson's objectivist approach. According to the lan-guage of the provision, all that seems to matter is theactor's belief.

If everything turns on belief (reasonable belief ac-cording to section 3.09),28 then we generate the para-doxical proposition that reasonable belief can justifyconduct. Yet, as just pointed out, the general theory ofjustification turns not on subjective considerations buton the cost/benefit analysis of an actual conflict. TheModel Penal Code cannot have it both ways. It cannotmake the justification contingent on reasonable beliefof lesser evils, and then turn around and require thatthe interest spared actually outweigh the interestsacrificed.

The basic question raised by collapsing the objec-tive and subjective sides of self-defense is whether itis coherent to claim that belief alone can justify con-duct-so far as justification implies that conduct isright and proper. Kent Greenawalt has argued that

27. Id. § 3.04(1).28. Id. § 3.09.

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reasonable belief can, in certain situations, justify ei-ther self-defense or necessity based on lesser evils.29 Idisagree but we need not rehearse that debate here,for the wording of section 3.04 seems to imply that be-lief alone can justify conduct."0 The probleni of unrea-sonable belief enters the equation as a limitation onsection 3.04, but a limitation applicable only wherenegligence can support a conviction for causing harmunder an unreasonable belief in the necessity of self-defense."' In a case like the Goetz case," where thecharges are attempted murder and battery, negligentperpetration of these offenses is excluded. Therefore,under the terms of the Code, even if Goetz's belief thathe was about to be mugged was unreasonable, he wasjustified in responding in self-defense. This strikes meas an implausible view about the nature of justifica-tion. I am not addressing here the charge of recklessendangerment.

In the end, then, the Model Penal Code stands fora radical and implausible innovation in our thinkingabout the nature of justification. Justification turnsout not to be a matter of social reality, as perceived bythe defendant, but solely a matter of the defendant'sbeliefs, however irrational. This innovation hardlyinvites a convincing rationale.

The third innovation of the Model Penal Code inthe field of self-defense is to drop the traditional re-quirement of an imminent attack and to replace itwith the defendant's belief that his response is"immediately necessary... on the present occasion."33

This is a change that turns out to have great practicalsignificance in cases of self-defense asserted by alleg-edly battered women after killing a feared partner in

29. Kent Greenawalt, The Perplexing Borders of Justification andExcuse, 84 Colum. L. Rev. 1897 (1984).

30. Id. § 3.04.31. Id.32. People v. Goetz, 497 N.E.2d 41 (N.Y. 1986).33. Model Penal Code § 3.04(1).

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his sleep. There is no sense in which an attack is im-minent but the defendant might indeed believe that aresponse is "immediately necessary... on the presentoccasion."34 The same claim would apply as a basis fortotal acquittal in the prosecution of the Menendezbrothers who claimed that they thought that killingtheir parents who were then watching television was"immediately necessary."35 The restriction offered bythe term "present occasion" lends itself to expansiveinterpretation.

It is hard to know how deeply the draftersthought about this radical change in the structure ofself-defense. There is some evidence that they did notthink about it very carefully, for section 3.02 on lesserevils is also drafted to permit a violation of law with-out regard to whether the risk to the actor is immi-nent.36 This seems to be a clear mistake in the draft-ing, and one typically corrected by the few states thathave adopted a provision like section 3.02." If theomission represents a careless slip, then the same islikely to be true of section 3.04.8

The requirement of imminent risk, typically foundin foreign codes and recognized at common law,stands for an important principle. In the context oflesser evils, an imminent risk assures that the actorhas no recourse but to violate the law. There is no wayto avoid the harm by appealing to democratic proc-esses. With regard to self-defense, the requirementprovides a line of demarcation between the legitimateuse of force and vigilante style self-help. This is a dis-tinction that should not be scrapped or altered with-out the most serious reflection. I have my doubts as to

34. Id.35. People v. Menendez, BAO 68880, 1996 WL 363705 (Cal. Super.

Trans. July 2, 1996); People v. Menedez, BAO 68880, 1996 WL 121110(Cal. Super. Trans. March 20, 1996); Menendez v. Superior Court ofLos Angeles County, 834 P.2d 786 (Cal. 1992).

36. Model Penal Code § 3.02.37. Id.38. Id. § 3.04.

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whether the changes in the Model Penal Code are in-formed by deliberations of the required self-consciousness and depth.

DOGMA VI: PRETEND THAT THE PROBLEM OF MISTAKEDOES NOT EXIST.

The Model Penal Code tries to push the problemunder the legislative rug. Section 2.04(1)(a) providesthat mistake about an element of an offense is rele-vant only, in effect, when the culpability factor as-signed to the element accommodates the mistake." Ifpurpose or knowledge is legislatively assigned, thenany mistake, even an unreasonable mistake, will ne-gate the required culpability. If recklessness or negli-gence is the required mental element, then only rea-sonable mistakes will suffice. If no state mental isrequired for the particular element, then a mistake asto that element is irrelevant. The logical symmetry issufficiently clear. In effect, it eliminates the problemof mistake as an independent arena of moral andtheoretical inquiry. Read the local statute and youknow how to gauge the impact of mistake.

Of course, the entire approach assumes great leg-islative wisdom, but the Model Penal Code's own con-fusions in this area indicate how difficult it is to beconsistently wise in drafting a code. The language ofthe Code (material elements of the offense) purports toinclude the absence of justification and excuse in theformula of section 2.04(1)(a):

the ignorance or mistake negatives the purpose, knowl-edge, belief, recklessness or negligence required to es-tablish a material element of the offense.40

Yet the drafting of the defenses in Articles 2 and 3does not even come close to the prescribed method of

39. Id. § 2.04(1)(a).40. Id.

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assigning a culpability level to each element of the de-fense. To return to the example of self-defense in sec-tion 3.04, we learn that the defendant must(reasonably) believe that the use of force is immedi-ately necessary on the present occasion." He is mis-taken if, for example, he thinks that he is being at-tacked when he is not. If the mistake is unreasonable,then he risks liability under section 3.09(3).42 Yet thelogic becomes a bit confusing. If this mistake resultsin the loss of the justification, it will not be becausethe mistake negates the culpability element requiredfor the offense. Its effect is just the opposite: the mis-take establishes the negligence required for liabilityfor another offense, with the resulting forfeiture of thejustification.

This example informs us that the general formulaof the Model Penal Code is oversimplified. You cannotsimply argue that the problem of mistake is resolvedas soon as you specify the culpability requirements forthe elements of every offense. Mistakes about the cir-cumstances of justification function differently frommistakes about core elements of the offense. For one,according to the scheme of the Model Penal Code, themistake simply transforms the defendant's state ofmind from knowledge to belief. In itself, this has no ef-fect on the availability of the justification. If the mis-take is unreasonable, then it continues to justify theact but it also generates a basis for charging the justi-fied actor with negligently or recklessly committing asubsidiary offense. Mistake in the field of justification,therefore, is a double-edged sword. It has a blunt edgewith regard to the problem of justification and a sharpedge for generating additional liability.

Mistakes with regard to excusing are equallycomplicated. The Model Penal Code seems to beoblivious to the problem of mistake in making a claim,

41. Id. § 3.04(1).42. Id. § 3.09(3).

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say, of duress as a excuse. Section 2.09(1) provides:

It is an affirmative defense that the actor engaged in theconduct charged to constitute an offense because he wascoerced to do so by the use of, or a threat to use, unlawfulforce against his person or the person of another, which aperson of reasonable firmness in his situation wouldhave been unable to resist.43

Let us suppose the threat is to kill the actor'schild who is missing, allegedly kidnapped by thethreatener. A person of reasonable firmness wouldpresumably give in to the threat, at least if the act re-quired were not outrageously costly to human life. Butsuppose that the actor thinks that he has received thisthreat (he misreads the letter) when in fact he hasnot. This is a mistake about the conditions of duress.Is he still excused if a reasonable person would haveengaged in the same misreading of the letter? TheModel Penal Code fails to supply an answer. It is alsoclear that section 2.04(1) has no traction in this case.44

Though the absence of duress is technically "a mate-rial element of the offense," the drafters have no an-swer to the problem.

There are other more serious problems in apply-ing the theory of mistake to the Model Penal Code.What if the actor thinks that, in line with the defensecreated in section 2.04(3), he is proceeding in relianceon a "judicial decision" that authorizes his conduct?46

In fact, just before his acting, the decision is over-ruled. Had the decision been in force, his reliancewould have been reasonable and, let us say, his mis-take about the existence of the decision is also reason-able. Does it follow that he can act in reasonable reli-ance on a nonexistent source of law? Again, the Model

43. Id. § 2.09(1).44. Id. § 2.04(1).45. Id.46. Id. § 2.04(3).

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Penal Code does not give us a clue on how to proceedin this case.

These examples illustrate the theoretical difficul-ties that haunt the theory of mistake. If the drafters ofthe Model Penal Code had been the slightest bithumble in their theoretical pretensions, they mighthave recognized that there were areas of criminal re-sponsibility that they themselves were not in a posi-tion to resolve in black letter rules.

The fact is that even today deep problems in thetheory of mistake remain unresolved. One of the nag-ging issues is the treatment of mistakes about consentin rape cases. The problem is typified by the shamefuldecision in D.P.P. v. Morgan, in which the House ofLords held that any mistake about whether a protest-ing women in fact consents to intercourse negates theintention required for rape and therefore precludes li-ability." This decision is still followed in England(despite corrective legislation to the contrary), Can-ada, Israel, and it expresses the dominant view in theGerman theoretical literature.

The basic problems in this case are first, howshould we treat mistakes about factual presupposi-tions about claims of justification? And second, howshould we classify consent in rape cases? Is it a claimof justification or is absence of consent properly re-garded as a core element of the prosecution's case?The House of Lords just assumed, without any theo-retical reflection, that the required intent in rape en-compassed the absence of consent. If this is true, thenit follows that even unreasonable mistakes are a de-fense to liability. The problem is whether this classifi-cation of consent is correct. Though I think it is betterto treat consent as a justification, I concede thatproblems attend this view as well.

With regard to the Morgan problem, the ModelPenal Code proves to be inadequate for two reasons.

47. D.P.P. v. Morgan [1976] A.J. 182.

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First, it provides no classificatory or theoreticaltreatment of consent at all. Second, if the generalprinciple of justification based on belief in Article IIIwere applied, it would lead to an acquittal based onthe simple, possibly irrational belief in consent in rapecases. Since in the absence of special legislation, neg-ligent rape is not punishable, a negligent or unrea-sonable mistake about consent would lead to a totalacquittal.

It is clear that the fair and sensible answer in thisarea would lead to liability for negligent mistakesabout the consent of a sexual partner. How one gener-ates the theoretical structure to lead to this result re-mains unsolved. That the problems in this area are sodifficult makes one wonder how the drafters of theModel Penal Code could believe that the problems didnot exist at all.

DOGMAVII: RECOGNIZE BUT DO NOT RECOGNIZEMISTAKE OF LAW AS AN EXCUSE.

Our last dogma is a modest complaint. The ModelPenal Code proposes to correct a basic inadequacy inthe common law by recognizing a defense of mistakeof law in section 2.04(3).4' The basic idea is that theactor has an "affirmative defense" if he has acted inreasonable reliance on any one of a number of officialsources of listed sources of law. At the conclusion ofthe provision we learn that the defendant must provethis defense without a name by a "preponderance ofthe evidence."49 Now why, it is fair to ask, does theCode shift the burden on this issue but not on self-defense or duress or insanity?

As a matter of legislative politics, the answer isthat this is a relatively new defense. It is a version ofmistake of law, which was supposed to be a defense at

48. Model Penal Code § 2.04(3).49. Id. § 2.04(4).

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common law. Recognizing something new, the draftersunderstandably thought they should tread carefullyand hedge the new possibility of acquittal by requiringthe defendant to prove the issue.

Does this argument carry as a matter of principle?The first thing we should try to figure out is why addthis encrustation to a criminal code? Why shouldsomeone by acquitted simply because he acted in rea-sonable reliance on an official statement of the law?As Jerome Hall once argued, does this not mean thathe is able to substitute his own opinion of what thelaw is for the law itself?

If we look at the location and the drafting of theprovision, we get only minimal clues to the nature ofthe claim. The provision appears in Article II ratherthan Article III. This means that it is not a justifica-tion and that it bears, as the title of Article II indi-cates, on the "general principles of liability." It is inthe nature of a mistake, and it appears in section 2.04along with other provisions on mistake." It is some-thing like duress, regulated in section 2.09, also a de-fense and not a justification.5' This is not much to goon. The basic problem of the Code is that it providesno conceptual point of contact between its inherentstructure and this provision on reasonable reliance onofficial statements of law.

The provision in section 2.04(3) appears to besomething like a gift to the defendant, a gift that canbe compromised by making the defendant pay for it bybearing the burden of persuasion. 2 The only provisionin the Code in which the drafters shift the burden isentrapment in section 2.13, a defense that functionslike an exclusionary rule designed to discipline policefor improper behavior." Perhaps the proper interpre-tation of the reasonable reliance provision is that by

50. Id. § 2.04.51. Id. § 2.09.52. Id. § 2.04(3).53. Id. § 2.13.

DOGMAS

analogy to entrapment, it is designed to disciplinestate agencies for issuing misleading statements ofthe law. If that is the correct reading, a state legisla-ture might well decide that it is not in the business ofdisciplining state agencies and therefore it should befree to delete provisions so designed.

The better reading of section 2.04(3)," however,seems to be that a reasonable mistake of law negatesmoral culpability for violating the law and no oneshould be punished who has acted culpably andwrongfully and in violation of the statutory law. Thisis a relatively simple proposition that has adherentsin all legal systems that follow, more or less, the Ger-man model of liability. It even enjoys constitutionalstatus in Germany, Italy, and to some extent, in Can-ada. The Model Penal Code's rejection of strict liabil-ity for offenses posing a threat of imprisonment showsthat the drafters also understood this basic principleof justice.

If the drafters had explicitly grounded mistake oflaw in its logical relationship to moral culpability,state legislators would have seen that by eliminatingthis provision, they were striking at the heartland ofthe Code. It would have been like adopting the ModelPenal Code but striking the provision on insanity orduress. Of course, if the drafters had clearly recog-nized that the new defense was simply a natural ex-tension of the requirement of moral culpability, theywould not have been able to shift the burden of per-suasion on the issue-at least the contradiction wouldhave been more apparent.

The unfortunate fate of section 2.04(3)*" instructsthat a sensible design of excusing conditions, includ-ing mistake of law, cannot proceed without acknowl-edging up front that punishment by imprisonmentpresupposes morally culpable, wrongful conduct in

54. Id.55. Id.

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violation of the statutory law. To have done this cor-rectly, the Model Penal Code would have had to avoidthe typical common law mistake of reducing the con-cept of culpability to subjective mental states, such aspurposely and knowingly committing offenses. But ifthe Model Penal Code had been able to recognize therole of moral culpability in crime, they could havedrafted the problematic definition of unlawfulness insection 3.11(1)56 more clearly and directly. A simpledefinition of excuse as a denial of moral culpabilitywould have enabled them to say that unlawful forcesimply means force that is unjustified but possibly ex-cused.

Now, nearly 30 years after the drafting of theModel Penal Code, Herbert Wechsler and his innova-tive colleagues are hardly responsible for the mistakesthat persist in the draft. The responsibility has shiftedto the academic profession that continues to study andteach the Code. If we repeat the mistakes of the foun-ders, we are the ones who deserve the blame.

56. Id. § 3.11(1).