under a decree of judicial separation. Where the definition of an offense excludes conduct with a spouse or conduct by a female, this shall not preclude conviction of a spouse or female as accomplice in an offense which he or she causes another person, not within the exclusion, to perform.

(3) Sexually Promiscuous Complainants. It is an affirmative defense to prosecution under sections 1645 and 1647(g) that the alleged victim had, prior to the time of the offense charged, engaged promiscuously in sexual relations with others.

(4) Prompt Complaint. No prosecution may be instituted or maintained under sections 1641 to 1647 unless the alleged offense was brought to the notice of public authority within three months of its occurrence or, where the alleged victim was less than sixteen years old or otherwise incompetent to make complaint, within three months after a parent, guardian or other competent person specifically interested in the victim, other than the alleged offender, learned of the offense.

(5) Testimony of Complainants. No person shall be convicted of any felony under sections 1641 to 1645 upon the uncorroborated testimony of the alleged victim. Corroboration may be circumstantial. In a prosecution before a jury for an offense under sections 1641 to 1647, the jury shall be instructed to evaluate the testimony of a victim or complaining witness with special care in view of the emotional involvement of the witness and the difficulty of determining the truth with respect to alleged sexual activities carried out in private.

(6) State Law. Sections 1641 to 1647 shall not apply to conduct which is not criminal under the law of a state within which the conduct occurs. Inapplicability under this subsection is a defense.

Comment

These provisions are designed to clarify special problems of proof which arise in cases of sexual offenses. They are adapted from modern code revisions on this subject. Note, especially, that under subsection (1) a reasonable mistake that a sexual partner is over 16, when age is relevant, will exculpate the offender; mistake as to the age of a child under 10 cannot exculpate. Subsection (2), on spouse relationships, is designed to exculpate persons intentionally living in common-law relationships from charges of "rape;" seduction by pretended marriage, however, is an offense under § 1642. Under subsection (3), proof by a preponderance of the evidence of promiscuity of a sexual partner is a defense to a charge of an offense designed to protect immature persons from sexual seduction; but mistake as to promiscuity of such a partner is no defense (see § 303).

§ 1649. Definitions for Sections 1641 to 1649.

In sections 1641 to 1649:

(a) "sexual intercourse" occurs upon penetration, however, slight; emission is not required;

(b) "deviate sexual intercourse" means sexual contact between human beings who are not husband and wife consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva, or any form of sexual intercourse with an animal;

(c) "sexual contact" means any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire.

Comment

This section serves drafting convenience and introduces no significant novelty.

§ 1650. Federal Jurisdiction Over Offenses in Sections 1641 to 1647. There is federal jurisdiction over an offense defined in sections 1641 to 1647 under paragraphs (a), (b) or (l) of section 201.

Comment

Jurisdiction over sex offenses exists when they are committed in federal enclaves, in the course of committing another federal crime, e.g., rape in the course of a federal kidnapping, and on the high seas in a "piracy" setting.

Chapter 17. Offenses Against Property

ARSON AND OTHER PROPERTY DESTRUCTION

Introductory Note

The property destruction offenses in existing federal law are numerous and varied. In some instances existing statutes are divided according to the definition of the basic misconduct, and are further subdivided according to the federal interest involved. Compare, for example, arson in federal enclaves (18 U.S.C. § 81) and the malicious mischief provisions (18 U.S.C., Ch. 65). In other instances the various kinds of misconduct (and, in addition, harm to persons) are grouped in a single statute according to the function which is being interfered with, e.g., air commerce (18 U.S.C. § 32) and common (motor vehicle) carriers (18 U.S.C. § 33). Maximum penalties vary according to the means employed, nature of the property, amount of damage caused, and whether harm is caused to human beings; but no consistent line is followed.

In the proposed Code the aspects of these provisions involving harm to and endangerment of human beings are largely covered by the offenses set forth in Chapter 16, directly under the specific jurisdictional bases provided for those offenses and indirectly through the "piggyback" base (section 201(b)) which permits prosecution for those offenses when comitted in the course of committing a property destruction offense. In addition, the element of harm or risk of harm to human beings is taken into account in the formulation and grading of the property destruction offenses, which is a principal reason for maintaining the difference between property destruction or damage by fire or explosion (§§ 1701, 1702) and criminal mischief, which covers property destruction or damage by any means (§ 1705). Note that destruction and damaging of, and tampering with, property affecting national security are covered in §§ 1106-08.

§ 1701. Arson.

(1) Offense. A person is guilty of arson, a Class B felony, if he starts a fire or causes an explosion with intent to destroy a building or inhabited structure of another or a vital public facility.

(2) Jurisdiction. There is federal jurisdiction over an offense defined in this section under paragraphs (a), (b), (d), (e), (f), (h), (i) or (l) of section 201.

Comment

In defining the offense of arson and grading it as a Class B felony, this section represents the view that intended destruction of the kinds of property listed in § 1709 by fire or explosion evidences extraordinary dangerousness on the part of the perpetrator. While human endanger

ment is the principal concern, note that the draft makes no explicit distinction based upon the fact that humans are present or absent at the time of the act, and, that some kinds of property are included, e.g., communications and radar installations and power stations, at which humans are rarely present. The policy thus expressed is that the difference between arson accompanied and arson unaccompanied by the awareness, or consequences, of actual human occupation of the property is insufficient to warrant requiring proof as to the awareness or consequences in order to distinguish between the availability of Class B and Class C felony penalties. That policy is based on the view that the means employed usually pose dangers of conflagration, total destruction or irreparable damage, human endangerment due to firefighting efforts, or significant pecuniary loss, human inconvenience or suffering. Under the jurisdictional provisions the facilities of interstate or foreign commerce, including airplanes, ships, and trucks (now covered by 18 U.S.C. §§ 32, 33, 1992, 2275) will continue to be federally protected. An issue is whether the federal jurisdiction over property destruction when goods moving in interstate commerce happen to be involved, established in recent legislation, 15 U.S.C. § 1281, should be continued. The draft continues such federal jurisdiction, which is similar to that long provided under federal law when the crime is theft. The jurisdiction provided for arson is somewhat broader than that provided for criminal mischief (§ 1705) in that paragraphs (e) (use of interstate facility) and (h) (movement of person across state lines) of §201 are incorporated for the former but not the latter. The policy of 18 U.S.C. § 1952 (travel or transportation in aid of racketeering enterprises), which lists arson among the relevant offenses, is thus carried forward. Note that transporting an explosive in interstate commerce with intent to commit arson will constitute an attempt under this section and the attempt provision (§ 1001) and will be graded more severely than under existing law, which provides only for a misdemeanor penalty if injury or death does not result (18 U.Š.C. § 837 (b)).

§ 1702. Endangering by Fire or Explosion.

(1) Offense. A person is guilty of an offense if he intentionally starts a fire or causes an explosion and thereby recklessly:

(a) places another person in danger of death or bodily injury;

(b) places a building or inhabited structure of another or a vital public facility in danger of destruction; or

(c) causes damage to property of another constituting pecuniary loss in excess of $5,000.

(2) Grading. The offense is a Class B felony if the actor places another person in danger of death under circumstances manifesting an extreme indifference to the value of human life. Otherwise it is a Class C felony.

(3) Jurisdiction. There is federal jurisdiction over an offense defined in this section under paragraphs (a), (b), (d), (f) or (l) of section 201.

Comment

This section deals with reckless use of fire and explosives, conduct which does not fall neatly within the traditional arson offense, of which intentional destruction is an element. This provision upgrades the general reckless endangerment offense (§ 1613 in the homicide-assault grouping) because of the special dangers posed by use of fire or explosives.

§ 1703. Failure to Control or Report a Dangerous Fire.

(1) Offense. A person who knows that a fire which was started, albeit lawfully, by him or with his assent, is endangering life or a substantial amount of property of another is guilty of a Class A misdemeanor if he willfully fails either to take reasonable measures to put out or control the fire when he can do so without substantial risk to himself, or to give a prompt fire alarm.

(2) Jurisdiction. There is federal jurisdiction over an offense defined in this section under paragraphs (a) or (d) of section 201. Comment

This section extends existing law, which protects federal forest land from endangerment by persons setting fires (18 U.S.C. § 1856), to apply to endangerment of any public property or any property on federal enclaves. Consideration was given to extending liability under this provision to persons responsible for the safekeeping of the property as well as to persons setting dangerous fires. This was rejected on the ground that conviction of crime is an unnecessary and harsh sanction for default in employment responsibilities.

§ 1704. Release of Destructive Forces.

(1) Causing Catastrophe. A person is guilty of a Class B felony if he intentionally causes a catastrophe by explosion, fire, flood, avalanche, collapse of building, release of poison, radioactive material, bacteria, virus, or other dangerous and difficultto-confine force or substance, and is guilty of a Class C felony if he does so willfully.

(2) Risking Catastrophe. A person is guilty of a Class A misdemeanor if he willfully creates a risk of catastrophe by fire, explosives or other means listed in subsection (1), although no fire, explosion or other destruction results.