Consent Precluding the Harm

Consent Precluding the Harm

The first route under Section 2.11(1) applies when the offense is written so that the victim's lack of consent is part of the wrongful conduct. Many offenses have no such element, and for them consent has nothing to negate. The Code therefore adds a second, independent ground: the victim's consent is a defense when it precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.¹ This ground rests on the purpose of penal statutes. Each statute targets a particular harm, and a conviction for conduct that produced none of that harm advances none of the reasons for having the statute. The defendant in such a case has apparently satisfied every element yet has not brought about the evil the statute aims at, so the defense is classed as an offense modification defense and not as a failure of proof.²

That classification explains why the two routes must be run as two separate steps. When the definition of the crime includes non-consent, as the definition of rape sometimes does, the victim's consent defeats the prosecution's proof of an element, and nothing more need be asked.³ When the definition is silent about consent, the general position is that consent is no defense at all, and it becomes one only in a jurisdiction that follows the Code's second ground.⁴ Either ground suffices alone, so a fact pattern can fail the first route and still pass the second. The second ground also differs from a justification. A justification admits that a legally recognized harm occurred and permits it because a greater harm was avoided, as when a field is burned to make a firebreak that saves nearby homes. Consent under the second ground claims that the conduct was made harmless, as when a person consents to a slight battery.⁵

The third step does the real work, because the answer depends on what kind of harm the statute targets and whose harm it is. Where the harm is an invasion of the victim's own interest, the victim's agreement means the invasion never occurred. A standard tort illustration shows the mechanism: Paredes invites Marshall to a birthday party, and Marshall's entry satisfies every element of trespass on its face, yet the invitation defeats the claim because the interest trespass protects, Paredes's control over who comes onto the land, was exercised and not violated.⁶ Two reasons support this treatment. The first is the one already given, that no harm of the kind the statute targets was inflicted. The second is respect for autonomy, since the law places a high value on an individual's right to make choices about one's own affairs, even choices that others would consider unwise.⁷

A second illustration carries the same reasoning into the setting of a physical offense. In a standard tort example, Smith slaps Jones during a play rehearsal, and Jones has agreed to take the slap as part of the script, so the contact is privileged even though it was intentional and offensive in the abstract.⁸ If the jurisdiction defines battery without a non-consent element, the first route is closed and the defense must travel the second. The evil such a statute targets is an unwanted physical invasion, and Jones's agreement means that invasion was not inflicted.⁹ How far this reasoning reaches as injuries become more serious is a separate question that the Code answers in its later provisions on bodily injury.

The analysis comes out the other way when the evil the statute targets does not depend on the victim's wishes. A terminally ill person who asks a friend to supply a lethal drug has agreed to the result, yet the evil that homicide and assisted-suicide laws address is the loss of a life, and that evil is not dissolved by the person's agreement. The decisions in Washington v. Glucksberg and Vacco determined that laws making medically assisted dying illegal are permissible under the United States Constitution, which leaves the question of consent in this setting to state law.¹⁰ In Baxter v. Montana a divided Montana Supreme Court read state law to give physicians a consent defense to homicide and assault charges for medically assisted dying, provided the patient was competent, terminally ill, and truly consenting and the physician acted consistently with the medical standard of care.¹¹ The court asked whether it would be contrary to public policy to permit the conduct or the resulting harm, and finding no such objection to a medically appropriate lethal prescription, it allowed the patient's consent to serve as a defense.¹² Baxter shows a court asking the same question about the taking of life and answering it under one state's law, so it is an example and not a general rule, and the Code's own treatment of death and serious injury comes in a later section.

A student who sees that the statute never mentions consent should not conclude that consent is irrelevant. In a jurisdiction that follows the Code, silence about consent sends the analysis to the harm inquiry and does not end it, while in a jurisdiction that does not, consent to an offense lacking a non-consent element is generally no defense at all.¹³ An answer should therefore say which approach is assumed and, where the facts do not say, show the result under the Code's second ground.

The second ground has a boundary on the other side as well, because only the victim's agreement to the conduct counts. The victim's own guilt of a crime and the victim's contributory negligence are not defenses in themselves, and neither is the victim's later condonation, ratification, or acceptance of restitution, although some jurisdictions allow minor crimes to be compromised by restitution under statute.¹⁴ The reason follows from the mechanism. The defense asks whether the harm was inflicted, and forgiveness offered after the invasion cannot show that the invasion never occurred, whereas agreement to the conduct at the time can. Later sections take up the Code's qualifications of this route: the limits on consent to bodily injury, and the rules that deny effect to assent that is incompetent, impaired, improvident, or induced by force or deception.¹⁵