MEMORANDUM . . . "OFFENSES AGAINST THE FAMILY," BY LOUIS B. SCHWARTZ [i] (February 4, 1957)

handle is hein.ali/mpc0950 and id is 1 raw text is: Memorandum to the Advisory Committee on the Model Penal Code

From:   Associate Reporter Louis B. Schwartz
Re:   Offenses Against the Family: Sections previously considered by
the Committee but not yet Submitted to the Annual Meeting of The
American Law Institute.
Date:   February 4, 1957
The January 1956 Meeting of the Advisory Committee had before it the
last half of Chapter 207 - Sext'al Offenses and Offenses Against the Family.
Some of this material, revised, was thereafter submitted to the Council of the
Institute in M.arch 1956 and was approved to be laid before a regular Annual
Meeting of the entire Institute. It was decided not to nresent any of this to
the Annual Meeting of May 1956 because it had a full Drogram anyway and I was
abroad at the time.
In view of this and because the provisions are important and contro-
versial, the Reporters have thought it worthwhile to reproduce for your con-
venience the text of sections not yet submitted to the Annual Meeting, with the
following observations:
1. Council passed Sections 207.8 - 207.12, and 207.14, A very large
part of its consideraion was directed to Section 207.10 - Obscenity.
It voted 12 - 10 against subsection (6) under which the judge must
himself be satisfied that the material is obscene, even though by
ordinary stanoards there is enough evidence of obscenity to warrant
submission to a jury. Council also directed that the gist of Pro-
fessor Hart's proposal, defining the offense in terms of pandering
for gain to the taste for obscenity, be submitted to the Annual
Meeting as an alternative to our section. Advisors may be inter-
ested to read the opinions in United States v. Roth, 237 F. 2d
796 (2d Cir. 1956) on the constitutionality of criminal laws
against obscenity. Judge Frank concurred dubitante arguing that
there is a clear restraint of freedom of expression and no satis-
factory evidence that obscenity creates a clear and present danger
of any substantive evil.
2. Section 207.11 (Abortion) was not formally submLtted to Council,
but was discussed briefly. It might be well to recanvass the
Advisory Committee on this and Section 207.13 (Contraceptives)
to make sure of a firm, current position to present to the
Council.
3. Section 207.14 (Jeopardizing Health or Morals of Children) was
passed by Council on very brief consideration, while Section
207.15 (Custody) and Section 207 16 (Non-Support) were not
even submitted to it because of lack of time. We have re-
cently received communications from counsel for the National
Probation and Parole Association questioning the need for sr'ch
provisions and arguing that a non-penal family court is the
only solution. These issues are discussed in the comments to

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