Consent of the Governed

On the surface, it seems intuitive that the affirmative defense of consent would be unavailable for armed home invasion and assault and battery with a dangerous weapon.  Those crimes suggest our worst nightmare of a stranger barging into our home to do us harm.  But, the recent Massachusetts case had a twist, several twists actually, of a ligature.  The issue in Commonwealth v. Carey was whether if the theory of defense were consent to sexual contact that included asphyxiation did the trial court err in failing to instruct the jury on consent as an affirmative defense?  As authority for the defense of consent, the defendant cited the landmark Supreme Court of the United States case of Lawrence v. Texas which struck down, as unconstitutional, criminal statutes for sodomy between consenting adults.  

The crux of the issue in Lawrence was whether the state could infringe on the private activity of consenting adults while in Carey the question was whether a criminal defendant would be entitled to a particular jury instruction.  And, the jury instruction request is not a new one; the defense in Carey asked for a review of older case law in light of the Lawrence decision since all prior Massachusetts cases on the issue of consent to assault and battery related to sexual activity predated that Court ruling.  In upholding its prior law despite Lawrence, the court discussed that it was not admonishing any particular sexual activity, but rather addressing the public's legitimate interest in the safety of all people.  In so reasoning, the court concluded that consent was not a viable defense to these crimes.

The Massachusetts Supreme Judicial Court has support for its decision.  In a New Jersey case the court held that even if the defendant and the complainant had an agreement that if she drank liquor, he would punish her physically, consent was not a defense to the charge of atrocious battery. That case referenced a law review article regarding the scope of consent as a defense,  Consent in the Criminal Law, 8 Harv.L.Rev. 317, 324 (1895), and discussed why the public has an interest in the personal safety of every person, even those who agree to be beaten.  That idea was also discussed at length in the informative opinion of this Montana case.

Rape and sexual assault trials have required a consent jury instruction when the evidence provides any support for the defense theory of consent. This is true both where lack of consent is an element of the offense and where consent is claimed as an affirmative defense to the force or compulsion element of a sexual assault charge. See,  State v. Lira, 70 Haw. 23 (1988), Mery V. Commonwealth, 12 Va.App. 21 (1991), State v. Koperski, 254 Neb. 624 (1998).  As a reverse of the sexual assault allegations, consent was not an available defense to criminal abortion; practitioners could be charged with the crime regardless of the consent to the procedure by the pregnant woman as explained in this really interesting article. 

Yet, consent is a viable defense to larceny accusations where the owner of the property agreed to its taking, even if the taker had felonious intent. Lowe v. State, 44 Fla. 449 (1902).  This is true even where there is an elaborate scheme involved. State v. Neely, 90 Mont. 199 (1931).  But, consent is not a defense to burglary where the entry to the home is induced by fraud and then exceeds the scope of consent by stealing. State v. Plumley, 181 W.Va. 685 (1989).

The defense of consent has a limited but vital role in criminal justice which was not destroyed by the recent case in Massachusetts.  And, all should be grateful for the efforts of defense counsel in calling older cases into question based upon more recent analogous decisional law.  This is not done nearly enough, yet it is a necessary practice if we are ever to allow law to progress, especially in this age of outstanding social science research calling into question ill begotten foundational concepts that have been accepted as true, but also in regard to changing social norms reflected in criminal law.

Perhaps more troubling than the limits on consent as a defense is the breadth of consent as an offense. Many times, the authorities claim that an individual consents to allow the police into his home or workplace or vehicle.  On occasion, courts rebuff the authority to consent.  And, where consent is outright denied, the police cannot enter, even when another member of the house consents to entry.  The Fourth Amendment, indeed, prohibits unreasonable searches and seizures - our papers our homes and our persons are protected from unwarranted molestation.

Analogous to the greater-good rationale protecting the complainants and victims in the assault and battery cases mentioned above, perhaps society is unprepared to accept that we ever consent to the police entering our homes when we did not call them there.  Can ordinary citizens truly waive their right to be free from unreasonable searches and seizures knowingly, willingly, intelligently and voluntarily when an armed police officer asks to come inside?  Is consent really a viable argument to circumvent the warrant requirement of the Fourth Amendment or the equivalent state constitution prohibition?

And, what about consent to the lesser intrusion still implicating the Fourth Amendment, the stop and frisk conduct of the police?  Once limited to occasions where police had a reasonable, articulable suspicion that a crime was being committed or had just been committed, it is now a common occurrence, particularly in the lives of poor young men of color.  The original idea was to protect the safety of police officers by allowing a minimal intrusion to check potential suspects for weapons, but this has been expanded to a general practice which really defies the constitutional principle of individual liberty in a free society and has nothing to do with police safety.  No one, no matter where s/he lives, can be presumed to waive the fundamental right to individual sovereignty and protection of his or her own body.

Indeed, that is the root of  the recent Massachusetts case of Commonwealth v. Carey: even if the defendant can illustrate that consent was given, it is not a defense society is willing to accept.  In law school parlance, the recent case concluded that consent is not available as a shield for certain criminal defendants.  But, another question, and one that also requires careful analysis of older decisional law, is whether consent has a proper application as a sword by the government. 

The government always bears the burden of proving that its search and seizure actions pass constitutional muster, whether it be by the four corners of a warrant, or facts and circumstances supporting probable cause to arrest or search, or "reasonable articulable suspicion" for a minimally invasive frisk.  This only becomes a constitutionally argued matter when the police discover potentially incriminating evidence or make an arrest and the defendant moves to suppress the evidence (or dismiss the case if the individual is arrested without probable cause).

But, what about the times that nothing is found, that an innocent person is stopped, assaulted, humiliated, made to feel like a second class citizen in his own neighborhood and no arrest is made because no crime was committed.  What about the times that the police just want to come inside to talk?  Where exactly is the Fourth Amendment line?  How closely do we hew to the ideals of our own Revolution to free ourselves from governmental tyranny? 

Whether we view the world in the now clearly defined party visions: through Republican eyes of the rugged individual braving the world on his own or through Democratic eyes which are all looking out for each other, do any of us really consent to government intrusion into our homes and our bodies?  And, if we do believe that consent permits a variance from a constitutional mandate, don't we need to define those boundaries, acceptable to everyone - not "just" poor people or people of color or people with accents or people that wear identifiable garments - but everyone including the judges and legislators crafting the limits?  How many of us would waive our right to be free from government intrusion into our homes and bodies?

And, how far does any such consent go?  To the stop and frisk devoid of purpose?  To the strip search for a traffic violation?  To the intrusion into our homes by fraudulent means?  Long before Thomas Jefferson waxed poetic on government's sole legitimacy emanating from the consent of the governed, and long before Eleanor Roosevelt admonished that no one can make us feel inferior without our consent, Dante explained that the worst of all eternities was reserved for those caught between heaven and hell, the coward angels whose silence in a time of great moral need in life echoed forever by endless lamentation in death.  Plato was not alone in assuming consent by silence. Current silence in the face of excesses to the limits of our consent to government searches and seizures will echo in sounds and loud cries until the end of time.