The meaning and parameters of consent in sexual assault has evolved over the yeas, from the common law requirement of resistance “to the utmost” to prove lack of consent, to a shift in focus to the individual will of the victim. Consent, as a legal concept, is not limited to sexual assault law. It rears its ugly head in another critically important area: Fourth Amendment jurisprudence.

While consent in rape law has evolved to adopt a more subjective view, consent in 4th amendment law has devolved, going backward to a more objective view. A new paper (pdf) (SSRN) examines this phenomenon and argues that courts should look to sexual assault consent in determining whether an individual “consented” in the 4th amendment context:

As this article shows, there are many parallels to be drawn between rape and Fourth Amendment consent law. Although both claim to protect the dignity of choice, like rape law, the Fourth Amendment fails to ask if a subject wishes to be seized or touched, focusing instead on the amount of force and coercion used by the police. Also like rape law, the Fourth Amendment fails to recognize that subtle forms of coercion are incompatible with true consent. Both Fourth Amendment and rape law blame subjects who submit to subtle coercion, telling them they had a choice. Just as rape victims were told they asked for it by wearing short dresses and not screaming for help, individuals are told they asked for it by extending their arms to be searched.

It is a fascinating subject and something that I hadn’t given much thought to prior to reading this paper. Consider that in almost all 4th amendment cases, whether a defendant consented is usually decided in light of the force used by the police in conducting the search: if a squad of police cars surrounds the defendant, with guns drawn and then asks him for “consent”, a court is more likely to conclude that a reasonable person did not feel free to decline consent. Whereas if it is a single officer, who pulls over a car and then orders the defendant out and then asks for “consent”, a court is more likely to conclude that a reasonable person would have felt free to decline the search. 4th Amendment law turns a blind eye to the reality that is acknowledged in the sex assault area that the will to refuse is often overborne by a subtle show of force or authority.

One way to interpret Schneckloth‘s focus on congeniality is that it creates a de facto force requirement. If officers fail to use actual force or threat of force to prove nonconsent, consent will be presumed from mere cooperation. Importing Schneckloth into a sexual assault context, how would a judge analyze a situation where a man admits he detained a woman for twenty minutes against her will, but testified that it was all congenial when he asked her for sex? While a common law judge might rule that the man must be acquitted because the force requirement was not met, one would hope that a modern judge would rule in favor of the victim.

…

As the literature explains, there are many reasons why civilians approached by the police might feel coerced into saying yes when they mean no. The role the police officer’s badge plays in obtaining obedience, as Nadler states, “should not be underestimated.” As Raymond shows, “a failure to cooperate often carries with it significant consequences: seizure, arrest, and charge and conviction of a crime stemming from the failure to cooperate.” Once we notice the race of the participants instead of erasing race, the racial dynamic of coercion becomes evident. Civilians know that police have the awesome power to detain, to search, and to arrest. Civilians also recognize that police have wide discretion in exercising this power. What people do not know is how any particular officer is going to exercise his discretion. While people know the reason the officer approaches probably has to do with investigating crime, civilians would not know what reasons the officer has for the stop, or whether he has sufficient evidence (either true or false) that would permit him to arrest. Moreover, they do not know what will trigger an officer’s anger and so do not know what behaviors to avoid to prevent themselves from becoming the subject of unpleasant attention or worse. Also unknown is whether the officer harbors any personal prejudices that might operate against the people stopped. Depending upon one’s class, race, and community, some civilians encountering the police may fear a long delay or a ticket, while others fear “physical violence, arrest, or both.”

Bumper v. North Carolina‘s admonition that “the government cannot prove that the consent was, in fact, freely and voluntarily given . . . by showing no more than acquiescence to a claim of lawful authority” seems to be all but forgotten.

All the criticisms of 4th amendment law laid out in this paper will be nothing new to criminal defense attorneys. I’m not sure that there exists a way to actually refuse to consent and walk away without further law enforcement intervention. Because on the flip side, courts have held that no innocent person would refuse a consent to search and thus the refusal can play a role in the officer’s determination of reasonable suspicion or probable cause, permitting the officer to detain or arrest the individual.

It is this “criminal’s perspective” view of consent in the 4th amendment arena that must be changed. Until courts start recognizing and acknowledging that the Constitutional rights of individuals apply to all, regardless of guilt or innocence, we will never see an honest decision.

Two common law doctrines that most infuriated feminist rape theorists were force and resistance, requirements that cut against the subjective inquiry of whether a woman wished to have sexual intercourse. This article has shown that Fourth Amendment doctrine has come to embrace similar force and resistance requirements in suppression law. If police convince a court that a suspect submitted rather than resisted, then the court will inquire into the amount of force used by the police to obtain the suspect’s cooperation rather than determining if the search was against the will of the person searched. Just as traditional rape law was generally a normative question of male force, placing “the level of acceptable force starting just above the level set by what is seen as normal male sexual behavior,” search law has become a normative question of whether police used undue force to obtain cooperation. Currently, Fourth Amendment consent doctrine is totally divorced from a subjective inquiry that determines what the search victim wanted. This leaves people like the driver and passenger in Crash vulnerable to police who are no longer constrained by the Fourth Amendment as long as such police know how to obtain “consent” by methods acceptable to courts. The current doctrine does not give “weight and dignity” to the “concept of agreement and consent.”

I should just stop writing and let you all go read this excellent paper.

H/T: EvidenceProf

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