ELIZABETH NOLAN BROWN — The Centers for Disease Control and Prevention (CDC) inflated data about teen girls and sexual assault in a news release about a new CDC report on teenage mental health. In 2021, the percentage of teen girls who reported that they had ever been “forced to have sex” was up 27 percent since 2019, the health agency said, calling it “the first increase since the CDC began monitoring this measure.”

The percentage of teen girls reporting this in the CDC’s Youth Risk Behavior Survey reporting did rise, unfortunately—but not by quite the magnitude that the CDC news release said, reports Washington Post fact checker Glenn Kessler. The actual increase was not 27 percent, but 18.4 percent.

And even this number leaves some room for doubt, owing to differences in data collection between previous-year surveys and 2021.

“The CDC’s focus on the challenges facing teenage girls — especially regarding mental health — is timely and important. But the CDC’s use of inflated figures on sexual violence could undermine its larger message,” suggests Kessler.

The first problem with the CDC’s data stems from rounding. In 2019, 11.4 percent of teen girls in the Youth Risk Behavior Survey said they had been forced to have sex; in the 2021 survey, it was 13.5 percent. That’s a rise of 2.1 percentage points or—put another way—an 18.4 percent increase. In presenting the data, however, the CDC rounded the 2019 number down to 11 percent and the 2021 number up to 14 percent. Using these rounded numbers, you get a 27 percent increase.

Any increase here is concerning, of course. And whether it’s 11 or 14 percent, that’s still a disturbingly large percentage of teen girls who say they’ve been forced to have sex.

But some experts suggest that CDC data inflate a rise in recent years, since a lot of schools surveyed refused to ask students questions about sexual violence.

The increase in the number of schools choosing not to ask that question is huge. In 2017, 4 percent of schools surveyed didn’t ask their students about any sexual violence and 2 percent didn’t ask about rape, according to mathematician David Stein. In 2019, a quarter of schools surveyed failed to ask questions about any sexual violence and 18 percent didn’t ask about rape. In 2021, 23 percent didn’t ask about sexual violence and, again, 18 percent didn’t ask about rape.

“That could have biased the sample by possibly removing jurisdictions with lower rates of reporting rape and sexual violence,” Kessler points out:

Stein’s analysis of the available 2019 data suggests girls who were not given the questions were considerably younger than those who had received the questions and thus less likely to have had sex and to be sexually active — two factors, he said, that are associated with a higher risk of being a victim of sexual violence.

Elizabeth L. Jeglic, a clinical psychologist who studies sexual violence prevention at John Jay College in New York, said she could not comment specifically on the CDC methodology, but she said sampling and response rate can affect findings. “If the question is asked about lifetime occurrence and younger girls are not being sampled (or less likely to be sampled) you will likely see a higher prevalence rate as older girls will have more years to experience sexual violence than younger girls,” she said in an email.

Kessler notes that “other survey questions with more robust participation by schools — such as violence in dating and violence in bullying — indicated declines, not increases.”

For instance, the National Crime Victimization Survey suggests teen rates of experiencing sexual assault and rape have declined over the past three decades. And the CDC’s Adolescent Behaviors and Experiences Survey (ABES) puts the rape victimization rate at 10.4 percent and the sexual violence victimization rate at 15.3 percent.

The complete Tentative Draft, 600 pages long, addresses the substance of the full range of sexual assault crimes. It contains the Blackletter provisions setting forth the code’s statutory language for each section, official Comments interpreting and explaining each section, and Reporter’s Notes providing background and citations to sources relied upon by the Reporters in the draft. The original version of the Model Penal Code was published by the ALI in 1962. It was and remains highly influential. According to Wikipedia more than half the states enacted criminal codes that borrowed heavily from the MPC, and even courts in non-adopting states have been influenced by its provisions. It was a forward looking document. One important and influential contribution of the 1962 MPC was the removal of noncommercial sexual acts between consenting adults, such as sodomy, adultery and fornication, from the criminal law. In 2001, however, the Institute concluded that revision of some portions of the 50-year-old MPC had become necessary. This project, revising the portions of the MPC addressing sexual assault, is one of three separate revision projects on different portions of the code. The original MPC contained no provisions on a sexual offense registry; the inclusion of that topic in the MPC is among the most significant revisions to it now approved by the Institute.

The MPC’s registry provisions are contained in 11 sections. Including an official comment providing an Executive Summary, they are set forth in the final 120 pages of Tentative Draft No. 5. While the MPC adopts something called a registry, its substance departs significantly from existing registry laws, federal and state, as the Comments acknowledge. Key differences are:

1. Many sexual offenses that are registrable in the federal and most state laws are not registerable under the MPC provisions, which provide that no offense is subject to registration other than those it specifies as registerable. Only these five offenses (as defined by other sections of the MPC) trigger a registration obligation:

• Sexual Assault by Aggravated Physical Force or Restraint
• Sexual Assault by Physical Force, but only when committed after the offender had previously been convicted of a felony sex offense
• Sexual Assault of an Incapacitated Person, but only when committed after the offender had previously been convicted of a felony sex offense
• Sexual Assault of a Minor, but only when the minor is younger than 12 and the actor is 21 years old or older
• Incestuous Sexual Assault of a Minor, but only when the minor is younger than 16

2. There is no public notification that individuals are on the registry, whether through a public website or any other means. Access to the registry is limited to law enforcement personnel. The knowing or reckless disclosure of registry information to others is a felony.
3. The maximum registration period for the small group who remain on the registry is 15 years, but those who do not re-offend, and comply with parole, probation, or supervised release conditions, are removed after ten years. Failure to register cannot be the basis of parole or probation revocation; it is punishable only as a misdemeanor offense.
4. General rules that required location monitoring of persons convicted of a sexual offense are barred, as are most restrictions on residency, access to schools or the internet. Judges could impose such restrictions in particular cases, but only on persons currently required to register, and only upon an evidentiary showing that there are special circumstances in that particular case that justify it, and only for a limited period of time. In no case may a judge require public notification. Mandatory restrictions on employment applicable primarily to persons convicted of a sexual offense that are created by other state laws are not repealed by the MPC, but anyone subject to them may petition a court for relief from the employment bar.

The American Law Institute, established in 1923, is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. The current Council of the ALI includes 7 members of the United States Courts of Appeal as well as Justices on the highest courts of California, Arizona, Texas, and New Jersey. The recommendations of the ALI Council become the official position of the Institute when (as with these revisions to the MPC contained in T.D. 5) they are adopted by the members, which consists of leading attorneys, law professors, and judges who have been nominated and elected to membership.

Dr. Ellman is a Distinguished Affiliated Scholar with the Center for the Study of Law and Society at the University of California, Berkeley and a Charles J. Merriam Distinguished Professor of Law and Affiliate Professor of Psychology, Emeritus, at Arizona State University. He is the author of a recent paper “When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime.”