period. Restraint is "without consent" if it is accomplished by (i) force, intimidation or deception, or (ii) any means, including acquiescence of the victim, if he is a child less than fourteen years old or an incompetent person, and if the parent, guardian or person or institution responsible for the general supervision of his welfare has not acquiesced in the movement or confinement;

(b) “abduct" means to restrain a person with intent to prevent his liberation by (i) secreting or holding him in a place where he is not likely to be found, or (ii) endangering or threatening to endanger the safety of any human being.

Comment

The concept of "restraint" is essentially one of unlawful imprisonment. When the element of hiding or endangering the victim is added, "restraint" becomes "abduction" which, when the abduction is for the purposes specified in § 1631, constitutes kidnapping.

RAPE, INVOLUNTARY SODOMY AND SEXUAL ABUSE

§ 1641. Rape.

(1) Offense. A male who has sexual intercourse with a female not his wife is guilty of rape if:

(a) he compels her to submit by force, or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being;

(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge intoxicants or other means with intent to prevent resistance; or

(c) the victim is less than ten years old.

(2) Grading. Rape is a Class A felony if in the course of the offense the actor inflicts serious bodily injury upon the victim, or if his conduct violates subsection (1)(c), or if the victim is not a voluntary companion of the actor and has not previously permitted him sexual liberties. Otherwise rape is a Class B felony.

Comment

In addition to proscribing forcible acts of rape accomplished by force or threat of serious harm, presently covered by 18 U.S.C. § 2031, this section explicitly proscribes intercourse obtained through the

drugging of an unwitting victim and any sexual intercourse, whether or not forceful, with a child under the age of ten. The age-level is intended to express the strong social condemnation of intercourse with a pre-pubescent child, even non-forcefully, such conduct being graded as equivalent to forcible rape. An issue is whether the age level is appropriate should it be set at 12; or is the age of 10 proper, considering the trend toward earlier onset of puberty and the variety of circumstances and attitudes towards such acts? Or should the requirement be, for Class A felony treatment, that intercourse with the child was accomplished by threat, force, or intoxication? All conduct defined as rape in this provision would, in any event, be graded as a Class B felony.

See §§ 1648-50 for additional applicable provisions.

§ 1642. Gross Sexual Imposition.

A male who has sexual intercourse with a female not his wife is guilty of a Class C felony if:

(a) he knows that she suffers from a mental disease or defect which renders her incapable of understanding the nature of her conduct;

(b) he knows that she is unaware that a sexual act is being committed upon her, or knows that she submits because she mistakenly supposes that he is her husband; or

(c) he compels her to submit by any threat that would render a female of reasonable firmness incapable of resisting.

Comment

This section deals with non-forceful imposition on females, e.g., intercourse with mental incompetents, or by means of deception or duress. Some of these impositions might amount to "rape" under the common law and, perhaps, under existing federal law (18 U.S.C. § 2031), but they do not warrant the highest felony penalties, since they involve less physical danger or psychic harm than does the behavior covered by § 1641.

See §§ 1648-50 for additional applicable provisions.

§ 1643. Aggravated Involuntary Sodomy.

(1) Offense. A person who engages in deviate sexual intercourse with another, or who causes another to engage in deviate sexual intercourse, is guilty of an offense if:

(a) he compels the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being;

(b) he has substantially impaired the victim's power to

appraise or control his or her conduct by administering or employing without his or her knowledge intoxicants or other means with intent to prevent resistance; or

(c) the victim is less than ten years old.

(2) Grading. The offense is a Class A felony if in the course of the offense the actor inflicts serious bodily injury upon the victim, or if his conduct violates subsection (1)(c), or if the victim is not a voluntary companion of the actor and has not previously permitted him sexual liberties. Otherwise the offense is a Class B felony.

Comment

This provision is new to federal law. It is based on the premise that forcible acts of sodomy are aggressions as dangerous or detestable as forcible acts of rape. The definition and grading of the crime therefore parallel the rape provisions (§ 1641). See §§ 1648–50 for additional applicable provisions.

§ 1644. Involuntary Sodomy.

A person who engages in deviate sexual intercourse with another, or who causes another to engage in deviate sexual intercourse, is guilty of a Class C felony if :

(a) he knows that the other person suffers from a mental disease or defect which renders him or her incapable of understanding the nature of his or her conduct;

(b) he knows that the other person is unaware that a sexual act is being committed upon him or her; or

(c) he compels the other person to submit by any threat that would render a person of reasonable firmness incapable of resisting.

Comment

This provision parallels § 1642, which deals with imposition on females. See §§ 1648-50 for additional applicable provisions.

§ 1645. Corruption of Minors.

(1) Offense. A male who has sexual intercourse with a female not his wife or any person who engages in deviate sexual intercourse with another or causes another to engage in deviate sexual intercourse is guilty of an offense if the other person is less than sixteen years old and the actor is at least five years older than the other person.

(2) Grading. The offense is a Class C felony, except when the actor is less than twenty-one years old, in which case it is a Class A misdemeanor.

Comment

This section replaces the present "statutory rape" provision which proscribes intercourse (even voluntary) with girls less than 16 years old (18 U.S.C. § 2032). The draft proscribes intercourse and sodomy by older persons with boys or girls less than 16, but does not criminalize sexual experimentation among generational peers. It is not an offense when the actor is less than five years senior to the sexual partner. A further distinction in grading is made between adult corrupters of youth and younger offenders: a person over 21 who commits this crime is guilty of a felony; if the offender is under 21 the crime is a misdemeanor. If a youngster is abducted by an adult for the purpose of sexual abuse, the crime is elevated to kidnapping (§ 1632(1) (e)); but that would not be the result in the case of a younger offender, whose crime would remain a misdemeanor.

See §§ 1648-50 for additional applicable provisions. Note particularly § 1650(6), which provides a defense for conduct which is not criminal under the law of a surrounding state.

§ 1646. Sexual Abuse of Wards.

A male who has sexual intercourse with a female not his wife or any person who engages in deviate sexual intercourse with another or causes another to engage in deviate sexual intercourse is guilty of a Class A misdemeanor if :

(a) the other person is in official custody or detained in a hospital, prison or other institution and the actor has supervisory or disciplinary authority over the other person; or

(b) the other person is less than twenty-one years old and the actor is his or her parent, guardian or otherwise responsible for general supervision of the other person's welfare.

Comment

The need for definition of these sexual crimes for federal enclaves is discussed in the comment to § 1647, infra. See §§ 1648-50 for additional applicable provisions.

§ 1647. Sexual Assault.

A person who knowingly has sexual contact with another not his spouse, or causes such other to have sexual contact with him, is guilty of a Class B misdemeanor if:

(a) he knows that the contact is offensive to the other person;

(b) he knows that the other person suffers from a mental disease or defect which renders him or her incapable of understanding the nature of his or her conduct;

(c) the other person is less than ten years old;

(d) he has substantially impaired the other person's power to appraise or control his or her conduct, by administering or employing without the other's knowledge intoxicants or other means for the purpose of preventing resistance;

(e) the other person is in official custody or detained in a hospital, prison or other institution and the actor has supervisory or disciplinary authority over him or her;

(f) the other person is less than twenty-one years old and the actor is his or her parent, guardian or otherwise responsible for general supervision of the other person's welfare; or (g) the other person is less than sixteen years old and the actor is not less than twenty-one years old.

Comment

This provision on minor sexual offenses parallels the proposed felony provisions on sexual misconduct, involving actual or attempted intercourse, normal or deviate. There is some opinion that minor sex crimes should be left to state law, assimilated for federal enclaves by § 209; but the great variety of state laws on sexual offenses, and the differences in penalties from one area to another seem to call for some consistency in definition of what constitutes criminal sexual misconduct in federal enclaves.

See §§ 1648-50 for additional applicable provisions.

§ 1648. General Provisions for Sections 1641 to 1647.

(1) Mistake as to Age. In sections 1641 to 1647: (a) when the criminality of conduct depends on a child's being below the age of ten, it is no defense that the actor did not know the child's age, or reasonably believed the child to be older than ten; (b) when criminality depends on the child's being below a critical age older than ten, it is an affirmative defense that the actor reasonably believed the child to be of the critical age or above.

(2) Spouse Relationships. In sections 1641 to 1647, when the definition of an offense excludes conduct with a spouse, the exclusion shall be deemed to extend to persons living as man and wife, regardless of the legal status of their relationship. The exclusion shall be inoperative as respects spouses living apart