Concept
Consent Negating an Element
Consent
Consent Negating an Element
The first route in § 2.11(1) applies when the victim's consent "negatives an element of the offense."1 An element is one of the facts the prosecution must establish for the charged crime to exist at all, and a number of offenses are defined so that the victim's lack of consent is one of those facts. Rape is typically defined as unlawful carnal knowledge of a woman without her consent, and trespass is sometimes defined as entry without consent.2 In a definition written that way, consent works by removing a component of the crime itself. If the victim effectively agreed, the prosecution cannot prove the fact the statute requires, and no offense has been committed. The reason follows from what such offenses protect: the victim's control over body, property, or liberty. A victim who exercises that control by agreeing has suffered no invasion of the kind the statute targets. Tort law reasons the same way, because a plaintiff's consent to conduct that would otherwise be tortious leaves an essential element of the claim missing.3
A pair of facts from battery shows the structure at work. Cody agrees to box a former heavyweight champion for one round as part of a casino act, and although the punches are harmful, the contact is not "unconsented to," so that element of battery fails and Cody cannot later complain of it.4 Flip the one fact that matters and the element returns.
The only fact that moved the answer is Cody's agreement, which is exactly what the first route asks about. Because the boxing illustration comes from tort law, it displays the element structure and nothing more. Whether a criminal court would honor consent to blows of that force depends on the limits on consent to bodily injury, taken up later in this chapter.
Calling this route a defense hides how it works, and authorities do not label it uniformly. When non-consent is written into the offense, it is a fact the prosecution must prove, and the accused's evidence of consent is simply a way of showing that the element is missing. Tort law shows both labels in use. Many authorities treat lack of consent as part of the plaintiff's prima facie case, meaning the showing the plaintiff must make to reach the jury, while other courts treat consent as an affirmative defense, an additional fact that defeats liability even when the basic elements are proved, which the defendant must raise and prove.5 Within one body of law the label can also follow the drafting of the definition. The Restatement (Second) of Torts defines trespass to land as intentional entry on the land of another, with no mention of permission, so a guest invited to a birthday party satisfies the elements and the host's invitation operates afterward as a privilege.6 A criminal statute that defines trespass as entry without consent builds permission into the offense, and the same invitation then negates an element.7
This route has a firm boundary, because the general rule is that a victim's consent does not excuse a crime. A student must therefore find the element before invoking consent: an offense whose definition never mentions consent gives this route nothing to negate.8 Murder and statutory hazing show the point, since neither is defined by the victim's lack of consent, and so the victim's agreement to the killing or to the initiation removes nothing the prosecution must prove.9 Where the definition is silent on consent, the only remaining question is whether the consent prevented the harm the offense was written to address, which is the Code's second route and has its own section after the four questions here.
The label matters because the burden of proof follows it. If non-consent is an element, the prosecution must prove it, as it must prove every element, and a defendant who points to consent is doing no more than showing that the state's proof falls short. If consent is instead an affirmative defense, the defendant must at least raise it, putting forward some evidence of consent before the factfinder will consider the question. A defense of that kind also assumes the elements have been proved, which is a harder position for the accused than showing that an element is missing.10 The split among courts is partly a matter of pleading convenience, because the same evidence about what passed between the two people decides the question under either label.11 Whether consent actually negates an element therefore turns on four questions that the rest of this section takes in turn: which offenses are built around non-consent, how consent is expressed, how far it reaches, and what follows when the actor misreads it.
Offenses Defined by Non-Consent
The first of the four questions posed above is a matter of reading: which offenses write the victim's permission into their own definitions? The diagnostic is whether the definition of the charged offense itself speaks of the victim's permission, with language such as "without her consent" or "against her will."13 Where it does, the victim's effective consent negatives an element, so the offense is not committed, which is what the first route of § 2.11(1) provides.14 The reason lies in what these offenses protect. Rape, trespass, and their relatives guard the victim's authority over body and land, and the wrong each one names is an invasion of that authority. A victim who exercises the authority by agreeing has suffered no invasion, so the physical act that would be a crime without permission becomes a different event with it. Because permission sits inside the definition, the conduct never falls within the offense to begin with.
Rape is the central example, and its history shows one idea written in different words. The common-law prosecution had to prove intercourse with a woman not the defendant's wife, by force or threat of force, and without her consent, and if she consented there could be no conviction.15 The older formula was carnal knowledge "against her will," a phrase that drew courts toward asking whether the woman resisted, and some courts held that saying no, without physically fighting back, did not establish the absence of consent.16 In those courts a requirement of non-consent had turned into a requirement of resistance. Contemporary courts and legislatures regard the will-based wording as too narrow, and most jurisdictions now focus on the absence of consent instead.17 The change moves the question from how the complainant reacted to whether the complainant permitted the act, and permission is the interest the offense protects.
Statutes are not uniform, so the diagnostic has to be run against the actual text. Slightly less than half of the states use phrases like "without her consent" or "against her will" in setting out the elements, while the rest define the crime, whatever they call it, through prohibited intrusions such as force, so that consent sits just below the surface rather than in the words.18 Where a statute does require both force and lack of consent, the two are cumulative, which means a prosecutor who proves force beyond question has still not established non-consent.19 The direction of reform is to drop non-consent as an element, yet in a number of states consent remains either a definitional component or an affirmative defense.20
The marital exception shows how an element of non-consent can be defeated before any evidence is heard. At common law a man could not be guilty of raping his wife, because her consent to intercourse with him was conclusively presumed as a matter of law.21 A conclusive presumption leaves the factfinder no room to find that she did not consent, so the element could never be proved, however much force the husband used. Most jurisdictions have abandoned the exception, but courts and legislatures still commonly presume consent to sex within marriage or long-term domestic relationships.22 A presumption of that kind operates on the very element that makes the conduct criminal, so it makes non-consent harder to establish between those parties. Anyone checking a statute should therefore ask whether a presumption sits beside the definition.
Since non-consent is the heart of the definition, consent is usually the contested fact at trial. Sexual acts typically occur in private, so the complainant and the defendant are often the only witnesses, and the case turns on whose account the factfinder believes.23 The rules of evidence reflect that focus. Federal Rule of Evidence 412 generally bars evidence of an alleged victim's other sexual behavior, but it lets the defendant offer specific instances of the victim's sexual behavior with the accused to prove consent.24 The move to a consent-based definition also raised a question about the defendant's state of mind, namely whether the actor must intend, know, or be reckless as to the absence of consent, and that question is taken up under mistaken belief in consent later in this section.25
Battery shows the same structure outside sexual offenses, and it also shows why the exact wording matters. The tort definition requires "unconsented to," harmful or offensive contact, so the victim's agreement removes an element.26 The element asks about this person's actual permission: someone who consents to sexual activity that most people would find offensive has not suffered contact that is "unconsented to," and no battery occurs.27 A criminal battery statute drafted around an "unlawful" application of force works differently, because that word says nothing about the victim's permission. Consent matters under such a statute only because it can leave the force not unlawful, and it does so only when the bodily harm consented to is not serious.28 That limit belongs to the later discussion of consent to bodily injury.
Trespass and theft complete the picture. A criminal trespass statute that defines the offense as entry without consent makes permission the dividing line between a guest and an intruder.29 In a standard illustration, Paredes invites Marshall to his birthday party, and she enters at the appointed time.30 The illustration comes from tort law, where the invitation works as a privilege after the elements are proved. Under a statute defining trespass as entry without consent, the same invitation leaves the element of entry without permission unproved.31 Theft offenses rest on a taking the owner has not agreed to, and the trespassory taking that larceny requires is absent when the owner's consent has been obtained in certain ways. Which ways count is the question of effective consent, taken up near the end of this chapter.32
The third step is where the analysis most often goes wrong. A reader sees a victim and a physical act and assumes consent must be a defense, yet terms such as force, unlawful force, and taking do not mention permission, so the first route has nothing to negate when an offense is framed in them. Consent may still matter through the second route of § 2.11(1), which asks whether it prevented the harm the offense was written to address, but that is a different inquiry and receives its own section below.33
Express and Implied Consent
The second of the four questions asks how consent is expressed, and the answer is broader than the word "agreement" suggests. Consent may be express, meaning given in spoken or written words, or implied, meaning communicated by conduct and circumstances with no statement at all. The Code's first route asks whether the victim's consent negatives an element of the offense.35 Courts answering that question for battery look at both modes. In Wagner, the court asked whether an attack on Mrs. Wagner was contact to which she "had not given her consent, either expressly or by implication."36 The inquiry is therefore about what the alleged victim said or did, and no document is required.
The reason for this breadth lies in how people actually deal with one another physically. Handshakes, embraces, and scrambles for a ball are almost never preceded by a formal agreement. If only a signed or spoken yes counted as consent, none of these contacts would be consented to, and every offense defined by lack of consent would reach ordinary social and athletic life. Reading consent from conduct avoids that result, and the same flexibility lets a person refuse without speaking. A look or a blush can accept a kiss, and a look can just as well decline it.37
Express consent is the simple case. Medical practice shows the pattern, since a written consent form is the usual procedure and is expected in most settings. Unless a writing is specifically required, however, spoken consent is just as valid, and the form mainly serves as evidence of what was agreed.38 The paper goes to proof. The consent itself is the person's agreement, so a missing signature does not defeat a clear spoken yes.
Consent shown by conduct alone is illustrated by O'Brien v. Cunard S.S. Co. A steerage passenger stood in a line of about 200 women and watched the ship's surgeon vaccinate those ahead of her. When her turn came she told him she had been vaccinated before without leaving a mark, held up her arm, voiced no objection, and afterward took the certificate he gave her. The court held for the shipping line, because her behavior indicated consent and the surgeon could be guided only by her overt acts.39 Setting mattered, since notices explained the vaccination on offer and every woman before her had done the same. The resulting principle is that silence implies consent when the circumstances are such that a reasonable person would speak up if objecting.40 People who object ordinarily say so, so where an objection would be expected, the absence of one communicates acceptance. Where nothing would lead a reasonable person to speak, silence communicates nothing. Whether the result changes when the person was in fact unwilling is the question of mistaken belief, which comes later in this chapter.
Joining an activity can also imply consent. A person who joins a game of touch football communicates, by joining, agreement to the contacts the game ordinarily involves, and the interpretive question is which contacts those are.41 A player knocked down in the ordinary scramble has therefore consented by implication to that contact.
Even for a participant or an attendee, the implication has limits. In a bar-exam problem, Katie Miller went backstage hoping for an impromptu interview with the performer Steve Trapp, and he grabbed her phone with enough force to dislocate her shoulder. His lawyer argued that she had consented to some jostling by attending the concert and going backstage.42 The better analysis rejects the argument, because nothing about seeking an interview signals agreement to a forceful grab.43 Students lose this issue when they forget that implied consent reaches only what the participation reasonably signals. Exactly how far a given consent extends is the question of scope, taken up next.
A different kind of implication arises when the person has communicated nothing at all. Someone taken unconscious to an emergency room has said and done nothing to interpret, so the question becomes what treatment that person is taken to have agreed to, and courts approach it as implied consent.44 The rule that makes the emergency exceptional is that a physician treating a competent adult in a non-emergency cannot proceed without the patient's prior consent.45 An operation performed without consent is wrongful unless the circumstances justified performing it without.46 The touch-football player's consent is inferred from what the player did. The emergency patient's is supplied by the law because the patient could do nothing, and the two situations should not be run through the same reasoning.
Scope of Consent
Consent is a grant of permission, and a grant has edges. Section 2.11(1) makes consent a defense when it negatives an element of the offense, so the consent has to reach the conduct that is actually charged.49 A person who agrees to one act has said nothing about a different act, so conduct that goes beyond the agreement is treated, as to the excess, like conduct that had no consent behind it. The scope of consent is therefore a comparison: set what the person agreed to beside what the actor did, and ask whether the second fits inside the first.
The reason for the limit lies in what consent is for. A person who authorizes one act keeps control over every other act, and that control is the autonomy consent exists to respect. If a narrow agreement could be stretched to cover whatever the actor later thought sensible, the person would lose the very choice the agreement was supposed to exercise. The limit also removes an incentive problem, because after the fact an actor always has a motive to read the permission broadly, and a rule that let the actor's own view set the boundary would hand the pen to the party with something to gain. For that reason scope is read from what the person actually said or did, judged by how a reasonable observer would take it in context, which is also how the law of consent searches measures the reach of a consent to search.50
The surgery case is the cleanest illustration, though it comes from tort law and is offered here as a parallel rather than as a criminal holding. In Mohr v. Williams the patient consented to an operation on the right ear, and the surgeon, finding the left ear the worse one once the patient was under anesthesia, operated on the left instead.51 The court held that consent to an operation on the right ear was not consent to an operation on the left, so the surgeon had exceeded the consent and was liable for battery.52 The surgeon's good faith did not rescue the operation. The left ear was in fact diseased, the operation was skillfully performed, and there was no evil intent, yet the court could not conclude that these facts took the act out of battery, because an operation performed without consent, when the circumstances did not justify doing it without, is wrongful.53 The court also noted that the family physician present at the operation was there to calm the patient's fears and was not shown to have authority to consent to a change in the planned operation.54 Students lose this issue when they reason that the surgeon did what was medically best, because a good motive or a good result does not enlarge the scope of what was agreed.
Had the surgeon operated on the right ear as agreed, the conduct would sit inside the consent and nothing would remain to dispute, so the body part is the fact that moved the answer. The same line runs through medical battery generally: a surgeon who operates on an organ other than the one discussed with the patient is exposed to a battery action.55 Everyday settings vary the other dimensions of scope. The kind of act is one, since a person who accepts a kiss in the moonlight has not authorized intercourse. The instrument and degree of force is another, since agreeing to a fist fight does not authorize the opponent to reach for a shotgun when the fight goes badly.56 In each pair the second act is a different act, and the first agreement says nothing about it.
Property law shows scope along the dimensions of place, time, occasion, and purpose. In the standard illustration, Paredes invites Marshall to a birthday party, and the invitation does not let her use his property at will. Consent to entry on one occasion or for one purpose is not a general consent to entry, so if Marshall returns a week later to fish in the pond, she is a trespasser when the reasonable understanding of the invitation limited entry to the party itself.57 Time limits the grant in the same way, because an invitation to the party does not permit a stay of a week, and so does area, because a store owner who invites customers into the showroom has not consented to their going upstairs to watch television in his apartment.58 These examples come from tort law, but they carry over to any offense built on entry without consent, since entry beyond the invitation is, as to that place or time, entry without consent.59
A second decision shows that scope can fail along dimensions other than the body part. In Horton v. Suzuki, a civil battery case set out in a bar-exam problem, a karate student knew he would face rough contact from classmates and the instructor as a necessary part of the class. After class had been dismissed, the instructor struck him on the cheek in the locker room, apparently over a misunderstood remark. The court rejected the argument that enrolling in the class consented to the blow, because nothing in the record showed consent to being struck after class was dismissed, and the evidence indicated the blow had no connection with the instruction.60 The two cases differ in what went wrong. In Mohr the actor stayed within the kind of act agreed to, an operation, and went to the wrong site. In Horton rough contact of the same general sort may well have been accepted during instruction, but the time and the purpose of the blow lay outside what the student accepted. Failing on any single dimension is enough to take the conduct outside the grant.
Because the person holds the grant, the person may also widen it, narrow it, or take it back, and each move changes the comparison. Widening in advance is visible in medical consent forms, which commonly include the patient's consent to let the physician deviate from or modify the procedure if unforeseen circumstances arise, with any limits noted.61 That clause works because the patient agreed to it before the operation began. Taking consent back operates in the other direction. In sexual offenses, where a person who initially consented clearly withdraws that consent, the prevailing view imposes liability on the actor who refuses to stop, and the general view gives the actor a reasonable time to discontinue.62 The reasonable-time allowance fits the structure of the rule, because withdrawal narrows the grant only from the moment it is communicated. The consent-search cases state the same limit in a neighboring field: a person may limit or withdraw consent before the search is finished, but the withdrawal does not undo what was already done within the original grant.63
The comparison in this section sets the grant against the conduct. Whether an actor who honestly misjudged the grant escapes liability is a separate question about state of mind, taken up next under mistaken belief in consent.
Mistaken Belief in Consent
The comparison in the last section assumes that some consent existed and asks how far it reached. A different problem arises when the alleged victim gave no consent at all and the actor believed otherwise. Consent has to be communicated, and communication sometimes misfires, so that one person sends a message and the other receives a different one.66 The question is then whether the actor's mistaken belief, which may even have been reasonable, changes the legal result. Three layers of analysis answer it: what an actor may rely on, how jurisdictions treat silence and ambiguity, and what mental state the offense requires about the absence of consent.
The first layer is the idea that an actor may act on what the other person outwardly communicates. Most courts hold that an actor is privileged to make a contact where the other person's words, gestures, or conduct reasonably manifest consent to it, even if that person was not actually willing.67 In O'Brien v. Cunard S.S. Co. a steerage passenger watched about 200 women form a line and pass before a ship's surgeon for vaccination, told him that an earlier vaccination had left no mark, and held up her arm when her turn came, without ever saying she objected.68 She later testified that she was unwilling, yet the court held that the surgeon could be guided only by her overt acts and the manifestations of her feelings, and that in light of the surrounding circumstances, including notices posted about the vaccination requirement, his conduct was lawful whatever she privately felt.69 The claim there was a civil assault rather than a prosecution, but the same reading of overt conduct governs consent that negatives an element of an offense under Section 2.11(1).70
The objective rule has two halves, and each has its own reason. The first half protects the actor. A person can respond only to what the other communicates, so a rule keyed to hidden feelings would make liability turn on facts the actor could never observe, and someone who read every outward signal correctly could still be held liable for a reluctance that was never expressed. The second half, the requirement that the manifestation be reasonably read, protects the other person. Without it an actor could claim to have taken a shrug or a silence as agreement, and the law would have no yardstick for testing that claim except the actor's own say-so, which is the account of the party with the most to gain. Fixing the test at what a reasonable observer would take from the words and conduct in context places it between the other person's inner state and the actor's private belief.
The shipboard facts involved conduct that was clear in context. Ambiguity is harder, and the contest is sharpest in sexual-offense settings, where approaches to reliance diverge. A standard illustration comes from a civil battery setting, but it raises the identical question under any criminal offense defined by non-consent. After a period of physical intimacy, John suggests that he and Jean have intercourse. Jean answers, "Oh John, I love you but I don't know," then freezes and says nothing more, and intercourse follows.71
The traditional approach, which can be called reasonable reliance, asks whether the actor reasonably relied on a manifestation of consent, so an actor can escape liability even though the other person did not in fact consent.72 On the Jean facts it would probably be a jury question whether her words and her freezing gave John something he could reasonably rely on, and the answer would depend on how the two had communicated before and, if they had little history, on prevailing cultural norms about sexual contact.73 If the two came from settings with different norms, a jury could find a reasonable belief even though one was communicating that she did not consent while the other heard that she did not object.74 Because this test can excuse an actor when the other person plainly did not want the contact, it tends to favor the defendant.
The modern alternative holds that, unless the alleged victim affirmatively consented, the actor can never have reasonably relied. On this view not objecting is not the same as consenting, and only a yes counts as a yes, although the yes may be express or implied.75 The inquiry moves from the actor's reliance to the alleged victim's state of mind, yet the evidence of that state of mind is still the words and conduct at the time, such as freezing, smiling, or frowning, so the live issue often remains whether those words and actions, objectively read, amounted to consent.76 The approach comes in different strengths. A jury may be told to ask how a reasonable person would have understood the conduct, which leaves the result close to the traditional approach, or it may be told to reject consent unless there was an actual affirmative indication of it, which makes the defense less likely to succeed even when some people would have believed that consent existed.77 Some states go further and make sexual intercourse without obtaining affirmative consent a crime.78 Which approach governs varies by jurisdiction, so an exam answer should name the approach the facts or the question assume and, where none is given, show how the result changes under each.
The two approaches allocate the risk of miscommunication differently. Reasonable reliance leaves the risk with the person who sent an ambiguous signal, so long as an observer could have read it as agreement, while affirmative consent leaves it with the person who initiates, who must obtain a clear yes before proceeding. Reformers argue that treating consent as something the jury must scrutinize focuses attention on the complainant's behavior and lets defendants claim a belief in consent in almost any situation, and that requiring unambiguous agreement ensures the intimacy is mutually desired.79 The opposing concern is blameworthiness. The harm to a person who did not want the contact is the same whether or not the actor understood the refusal, but an actor who honestly failed to perceive unwillingness is less culpable than one who knew, and punishing someone with no subjective awareness of wrongdoing raises the objection that the person is being used as an instrument of social change.80
The third layer connects all of this to mens rea, because a mistake works as a defense only through the mental state the offense requires. When rape law moved from the common-law requirement that intercourse be against the victim's will to a focus on absence of consent, the shift raised the question whether the perpetrator must intend intercourse without consent, or whether knowledge or recklessness will do.81 The answer in turn bears on whether consent can be assumed absent a clear protest or must be assumed absent a clear declaration.82 Recent American law gives several answers.83
- Most recent cases permit a mistake defense only if the defendant honestly and reasonably believed the victim had consented.
- Some states require proof that the defendant was reckless as to consent.
- Some states make intercourse without obtaining affirmative consent a crime.
- A minority treat non-consent as a strict liability element, so a defendant can be convicted even though the belief in consent was honest and reasonable.
The English decision in D.P.P. v. Morgan represents the most forgiving position, under which an honest belief suffices even if unreasonable, while most American jurisdictions require at least a reasonable mistake and in some it is doubtful that even a reasonable one will do.84 The reason reasonableness matters lies in the general rule that an honest but unreasonable mistake of fact is not a defense unless it negates a mental state the offense requires. A defendant who forcibly has intercourse with someone he honestly but unreasonably believes consented is convicted of rape in most jurisdictions, because the mistake negates no element of rape. If the same defendant fails to complete intercourse and is charged with assault with intent to commit rape, the better view acquits, as in People v. Guillett, because that offense requires an intent to have intercourse with someone who is not consenting and the honest belief negates that intent.85
This structure explains how acquaintance-rape cases can end in acquittal even when consent was absent. In many such cases the question is not whether consent was given, since it was not, but whether the prosecutor can prove beyond a reasonable doubt that the defendant knew it had not been given, and miscommunications or misunderstandings often leave that proof short.86 Students lose this issue when they stop after finding that the alleged victim did not consent, because the absence of actual consent does not by itself establish the actor's culpability.87