Ineffective Consent

The earlier sections of this chapter asked what a consent does once it exists. It can remove an element of the offense, it can preclude the harm the offense targets, and it can defeat liability for limited bodily injury. Each of those uses assumes that what the actor points to is really consent. Model Penal Code § 2.11(3) tests that assumption by separating assent, the outward sign of agreement such as a word, a nod, or going along, from consent, the agreement the law will honor. The subsection begins by yielding to any contrary provision of the Code or of the law defining the offense, and it then lists four situations in which assent does not constitute consent.¹

The separation follows from why consent works as a defense at all. Consent defeats an offense because the person said to be harmed has chosen the conduct, and a choice carries that weight only if it is real. A real choice is made by someone with authority to make it, with the capacity to understand what is being agreed to, free of pressure, and informed about what the conduct actually is. Each condition has its own failure. A person without authority cannot license the conduct, a person without capacity cannot appreciate it, a person under pressure is not choosing, and a person who has been lied to is agreeing to something other than what occurs. Tort law draws the same line when it treats nominal consent as legally ineffective because of fraud, duress, certain forms of mistake, or the legal incapacity of the person who gave it.²

The conditions also answer an incentive problem built into the defense. An actor who profits from an apparent agreement has a reason to seek it from the people least able to refuse, or to manufacture it by threat or lie. If every yes counted, the defense would reward the exploitation of exactly the weakness that the law of the offense exists to guard against. Refusing to credit assent that lacks the elements of a real choice removes that reward at its source, so the actor can point to the words spoken but not to the agreement that justifies the defense.

The Code's four situations correspond to those failures, and the sections that follow take each in turn.³

Paragraph (a), legal incompetence: the assent comes from a person the law treats as unable to authorize the conduct charged.
Paragraph (b), youth, mental disease or defect, or intoxication: the assenter is manifestly unable, or known by the actor to be unable, to make a reasonable judgment about the nature or harmfulness of the conduct.
Paragraph (c), improvident consent: the law defining the offense is aimed at preventing the assenter's own improvident consent.
Paragraph (d), force, duress, or deception: the assent was induced by force, duress, or deception of a kind the law defining the offense seeks to prevent.

Two features of the wording keep this list from working as a mechanical test. The opening qualifier lets the Code or the law defining the offense displace any of the four situations, which fits the fact that different offenses protect different interests and each can fix for itself what kind of agreement matters to the interest it guards.⁴ Paragraphs (c) and (d) are also written in terms of the law defining the offense, so neither can be applied without reading what the offense is aimed at. An improvident consent is ineffective only where the offense is aimed at preventing it, and force, duress, or deception defeats consent only when it is of the kind the offense targets. Paragraphs (a) and (b) look chiefly at the person who gave the assent, while (c) and (d) require a look at the offense as well.

Hypothetical Illustration

Consent counts: A neighbor, sober and fully informed, tells the actor to take a lawn mower for the weekend, and the actor does. The offense turns on the owner's lack of permission, and the permission was real, so the element of non-consent is missing.

Consent fails, by pressure: The actor tells the neighbor that the neighbor's garage will burn unless the neighbor says those same words. The neighbor says them, and the actor takes the mower. The words, the mower, and the taking are unchanged, but the assent was produced by a threat of the kind property offenses are aimed at, so under paragraph (d) it is not consent and the element of non-consent is present.

Consent fails, by incapacity: Go back to the first version and change one fact. The neighbor is so intoxicated that the neighbor cannot tell what is being asked, and the actor can see it. The neighbor again says yes, but the neighbor is unable to make a reasonable judgment about the conduct and the actor knows it, so under paragraph (b) the assent does not count.

In all three versions the outward words stayed the same, so the fact that moved the answer was the quality of the assent: whether it was free, informed, and given by someone able to give it. That is the whole inquiry of this section, and the four paragraphs of the subsection are four ways of asking it.

The same categories recur outside the Code. In Lawrence v. Texas the Supreme Court held that the State could not make private sexual conduct between two adults who fully and mutually consented a crime, and it took care to say that the case did not involve minors, persons who might be injured or coerced, or relationships in which consent might not easily be refused.⁵ That list of what lay outside the holding tracks the situations in this section, and the later section on constitutional limits returns to the case.

Answers go wrong when they treat a spoken yes as the end of the consent question. The yes proves assent only. The analysis continues by asking who gave it and how it was obtained, then testing the facts against each of the four situations, always checking whether the law defining the offense has its own say.

Legal Incompetence

Paragraph (a) of § 2.11(3) is the first of the four situations in which assent fails to count as consent, and it asks the most basic question about the person who agreed: did that person have the legal power to authorize this conduct? Under its terms, assent is not consent if it is given by a person who is "legally incompetent to authorize the conduct charged to constitute the offense."⁷ The operative word is legally. The inquiry looks to the speaker's standing under the law, so it can come out against the actor even when the speaker was willing, sober, and fully informed, which are facts the other paragraphs address.

A person can lack that legal power in two ways. The first concerns capacity: the law treats some people as unable to give a particular consent, however clearly they express it, so their words carry no legal effect for that purpose. The second concerns authority: a person may be fully capable in general and still hold no right over the interest the offense protects, which means the person has no power to license an intrusion on someone else's body or belongings. The wording reaches both situations because it asks about authority to authorize the particular conduct charged, not about the person's competence in the abstract. One consequence is that the same person may be able to authorize one act and unable to authorize another. Tort law draws the same line when it treats legal incapacity to give consent as one of the reasons that nominal consent is not effective.⁸

The reason for the paragraph lies in what consent does. Consent defeats an offense because the person whose interest is invaded has chosen to permit the invasion, and that choice carries weight because it belongs to the holder of the interest. A person with no authority over the interest has nothing to delegate, so the actor cannot take from the speaker a permission the speaker never held. The paragraph also removes an incentive. An actor who could earn a defense by asking any agreeable voice, such as a bystander or a houseguest, could turn an unauthorized taking into a defended one simply by choosing the right person to ask. Tying the defense to the person who holds the interest takes that option away, because the yes of a speaker who lacked the power to give it supports nothing.

Across the two versions the words, the laptop, and the taking are identical, so the fact that moved the answer was who held authority over the laptop. The houseguest was as willing as the owner, which shows that willingness is not what paragraph (a) tests. In the first version the person speaking is the person the offense protects, and that person's choice removes the element of non-consent. In the second the person the offense protects, the host, chose nothing, and the houseguest's words cannot stand in for the host's choice.

Paragraph (a) should be kept apart from the paragraph that follows it. Paragraph (b), taken up next, asks whether the assenter was in fact unable to make a reasonable judgment about the conduct because of youth, mental disease or defect, or intoxication, while paragraph (a) asks whether the law gave the assenter the power to authorize it.⁹ The two can point in different directions, since a houseguest who fully grasps what is being asked still fails paragraph (a). The opening qualifier of the subsection adds a point of method: because the law defining the offense can displace the paragraph, the offense definition is the place to check how it identifies the person whose permission matters.¹⁰ An actor's belief that the speaker held authority raises the separate question taken up earlier under mistaken belief in consent, and paragraph (a) itself asks only whether the speaker in fact had the legal power.

Answers go wrong when they treat the speaker's willingness as the end of the question. A clear, voluntary yes shows assent, but the analysis has to continue to the speaker's legal power over the conduct charged.

Youth, Impairment, and Intoxication

Paragraph (a) asked whether the assenter held legal power over the conduct. Paragraph (b) turns to a different question, which is whether the assenter was in fact able to judge what was being agreed to. Under its terms, assent is not consent when the assenter, by reason of youth, mental disease or defect, or intoxication, is manifestly unable, or known by the actor to be unable, to make a reasonable judgment about the nature or harmfulness of the conduct charged.¹² The paragraph has three working parts. The first is a cause, which must be one of the three listed: youth, mental disease or defect, or intoxication. The second is an effect, namely that the assenter cannot make a reasonable judgment about what the conduct is or what harm it can do. The third is a visibility requirement, under which the inability must be either manifest or actually known to the actor. The first two parts describe the assenter, and the third describes what the actor was in a position to perceive.

The first two parts exist because consent carries weight as a defense only when it expresses a real choice, and a real choice about conduct requires some ability to grasp what the conduct is and what it can do to the person. Youth, mental disease or defect, and intoxication are the recognized ways that ability can be missing: judgment may not yet have developed, may be impaired by a condition of the mind, or may be clouded for a time by a substance. The older law reflected the same idea. The common law came to treat intercourse with a child under ten as rape without any need to prove lack of consent, on the ground that a child of such tender years lacked the maturity to comprehend the sexual act, and it extended rape to intercourse with a woman who was unconscious or mentally incompetent because she was unaware of what was occurring or did not understand its significance.¹³ Medical regulation uses a parallel idea. The Pennsylvania abortion statute reproduced in the appendix to Planned Parenthood of Southeastern Pennsylvania v. Casey requires a physician to obtain a parent's informed consent, in addition to the minor's own, when the patient is under eighteen and not emancipated, and it supplies a court route that asks whether the minor is mature and capable of giving informed consent.¹⁴ That statute regulates a medical procedure and says nothing about the criminal consent defense, yet it shows capacity being treated as something to be assessed rather than presumed.

The visibility requirement is where paragraph (b) departs from a rule that would simply ask whether the assenter was impaired. The inability must be either manifest, meaning apparent to anyone in a position to observe, or actually known to the actor, and each alternative does its own work.¹⁵ The knowledge alternative reaches impairment that does not show, as when an actor knows of a condition that an observer would never detect. The manifest alternative reaches the case in which the actor's state of mind is hard to prove or conveniently blank, because an actor confronted with obvious incapacity cannot avoid the paragraph by saying that the actor failed to notice. The pairing also marks the boundary. An impairment that was neither apparent nor known leaves paragraph (b) unsatisfied, since the actor then had nothing to go on, and holding an actor responsible for a condition that no one could see would attach liability to something outside the actor's awareness. Paragraph (b) fixes only when assent fails to count as consent, so the offense's own mental-state requirement, along with the earlier treatment of mistaken belief in consent, remains a separate question.

The visibility requirement also explains how intoxication cases are fought. In acquaintance cases where alcohol or drugs play a role, the prosecution can often show that consent was not given, and the contested question becomes whether it can prove beyond a reasonable doubt that the defendant knew consent was lacking, so that miscommunication and misunderstanding frequently end in acquittal.¹⁶ Paragraph (b) gives the prosecution two routes through that problem, proof of actual knowledge and proof that the incapacity was manifest, and each depends on what the actor could perceive.

Intoxication also has to be sized correctly, because the paragraph requires an inability to make a reasonable judgment and the mere presence of alcohol or drugs does not supply one. The general rule is that a victim who becomes voluntarily intoxicated, but not to the point of lacking the capacity to understand what is happening, has not been raped.¹⁷ Secretly administering an intoxicant is treated differently in many jurisdictions, which reach it as rape on the theory that the intoxicant works as a form of constructive force.¹⁸ That route runs through force and deception, which the next section takes up, and it does not depend on the victim's capacity.

Hypothetical Illustration

Consent counts: A partner has had a drink or two over dinner, converses normally, follows what is being asked, and says yes to sexual contact. Nothing about the partner shows an inability to judge the conduct, so paragraph (b) does not apply and the assent remains consent.

Consent fails, manifest inability: Change one fact. The partner is now so intoxicated that slurred speech, an inability to stand unaided, and an inability to answer simple questions are obvious to everyone present, and the partner murmurs agreement. The inability is manifest, so the assent is not consent, even if the actor later claims not to have noticed.

Consent fails, known inability: Change a different fact. A caregiver knows from years of experience that an adult resident's cognitive disability prevents the resident from understanding what sexual contact is. The resident speaks in friendly, full sentences, a visitor would suspect no impairment, and the resident says yes. The inability is not manifest, but the caregiver knows of it, so the assent is not consent.

The first two versions differ in how impaired the partner was, and the second and third differ in how the inability reached the actor, which together show the two things the paragraph asks. One question is whether the assenter could judge the conduct, and the other is whether that inability was open to the actor's view or within the actor's knowledge. Had the caregiver in the third version not known of the disability and had nothing about the resident shown it, neither alternative would have been met and paragraph (b) would not have applied.

Youth can also be handled by a fixed rule in place of the individualized inquiry of paragraph (b). The opening qualifier of § 2.11(3) lets the law defining the offense supply its own rule.¹⁹ Statutory rape laws use that room by punishing non-forcible intercourse with a minor as rape, with the age line varying from state to state.²⁰ Where the offense draws such a line, the line decides whether a minor's assent counts, and paragraph (b) supplies the capacity inquiry where the offense draws no such line. Lawrence v. Texas approaches the same ground from the constitutional side. The Court held that Texas could not make private sexual conduct between two adults who fully and mutually consented a crime, and it noted that the case did not involve minors or persons who might be injured or coerced or who were situated in relationships where consent might not easily be refused.²¹ The Court did not decide how those situations should be treated, and they are the ground that this paragraph and its neighbors occupy.

Answers go wrong when they treat intoxication by itself as the end of the question. Drinking does not remove consent, and the opposite shortcut, assuming that a partner who said yes must have consented, ignores the paragraph's focus on the ability to judge the conduct. The analysis asks what the assenter could judge and then what the actor could see or knew.

Exam Analysis Steps

Because the paragraph combines a fact about the assenter with a fact about the actor, it is best run in that order, so that the capacity question is settled before the visibility question. The steps are these:

Check the law defining the offense for its own rule, such as a fixed age line, because the opening qualifier lets that law displace the paragraph.
Identify whether the assenter's condition stems from youth, mental disease or defect, or intoxication.
Ask whether that condition left the assenter unable to make a reasonable judgment about the nature or harmfulness of the conduct, since drinking or youth without that inability does not satisfy the paragraph.
Ask whether the inability was manifest to an observer or actually known to the actor, and conclude that the assent is not consent if either is shown.

Paragraph (b) asked whether a particular assenter could judge the conduct and whether the actor could see or knew of any inability. Paragraph (c) moves the inquiry from the individual to the statute. Under it, assent is not consent if it is given by a person whose improvident consent is sought to be prevented by the law defining the offense.²³ The word improvident means unwise or poorly judged, so the paragraph describes an agreement that the offense was written to stop a protected person from making. The test is one of statutory purpose: the question is what the offense is for, and whether it was drafted to prevent the very kind of agreement the actor now offers as a defense. Because the paragraphs of § 2.11(3) are joined by "or," satisfying any one of them defeats the consent, and paragraph (c) can apply when nothing about the assenter's capacity is in doubt.²⁴

The paragraph has two working parts, and each has its own reason. The first part identifies the kind of agreement at issue, one that works against the interest of the person giving it. The reason for denying it effect is that a legislature which writes an offense to shield a group from its own choices has already decided that the group's yes is not a reliable signal of permission for that conduct, and a court that treated the yes as a defense would undo that decision. The second part anchors the judgment in the law defining the offense, so a court does not ask whether this particular yes was wise. That anchor also keeps the paragraph from swallowing the defense, because people agree to many unwise things and only the agreements an offense was written to prevent lose their effect. An incentive explains why the anchor matters. The actor benefits from a yes and is usually best placed to obtain one, and the people an offense of this kind protects are the people whose yes is easiest to obtain. If that yes excused the conduct, the offense would reach only actors who forgot to ask, and the first thing a determined actor would do is ask.

Age-based offenses are the clearest illustration, because the whole point of such an offense is to protect people below a chosen age from agreeing to the conduct. In that setting the protected person's yes is exactly what the legislature chose not to credit. The previous section showed that the opening qualifier of § 2.11(3) lets the offense supply its own rule, and paragraph (c) explains why a fixed rule of that kind is consistent with the Code's view of consent. Paragraph (b) asks case by case whether this assenter could judge the conduct. Paragraph (c) lets the offense answer for a whole class of assenters at once.

The constitutional case that marks the other end of the spectrum is Lawrence v. Texas, where the Court held that Texas could not make private sexual conduct between two adults who gave full and mutual consent a crime.²⁵ The Court added that the case did not involve minors, or persons who might be injured or coerced, or persons in relationships where consent might not easily be refused.²⁶ Lawrence is a constitutional decision and does not apply paragraph (c), which is a rule of the Code, and the limits it sets on state power are taken up at the end of this chapter. Its value here is as a marker. It shows adult, mutual agreement as the setting in which nothing suggests a protective purpose, and it names minors and the easily pressured as the places where a state's protective interest remains in play.

Medical practice supplies a contrast that clarifies what paragraph (c) asks. A patient's consent to treatment is effective only if it follows a fair and reasonable explanation of the proposed procedure.²⁷ That doctrine asks whether the choice was informed. Paragraph (c) asks whether the law defining the offense will credit the choice at all, given what the offense is for, so a fully informed and freely given yes can still fail under it when the offense was written to prevent that kind of agreement.

The adults in Lawrence and the child in the hypothetical are alike in being willing, so willingness is not what separates them. The fact that moved the answer is whether the law defining the offense was written to prevent that person's agreement from mattering. The second version of the hypothetical also shows how paragraph (c) differs from paragraph (b): a capable-seeming child may defeat any claim under (b) that the inability was manifest or known, and (c) still applies. Whether the actor's mistaken belief about age or protected status matters is a separate question, governed by the offense's own mental-state requirement and the earlier treatment of mistaken belief in consent.

Answers go wrong when they treat a willing and apparently mature assenter as proof that consent exists. A clear yes shows assent, and paragraph (c) asks whether the offense was written to deny that assent any effect.

Force, Duress, and Deception

Paragraph (b) asked whether the assenter could judge the conduct, and paragraph (c) asked whether the offense was written to deny that assenter's yes any effect. Paragraph (d) turns to a third question, which is how the assent was obtained. Assent is not consent if it was induced by force, duress, or deception "of a kind sought to be prevented by the law defining the offense."²⁹ The three pressures are familiar from ordinary speech: force is physical compulsion, duress is a threat that leaves the person without a real choice, and deception is the creation of a false belief. The closing qualifier is what makes the paragraph workable, because it tells a court which force, which threats, and which lies count, and the answer depends on the offense charged.

The three pressures reach the same result by different routes. Force and threats remove the choice: a person who submits to physical force or to a threat of great and immediate bodily harm has submitted, and submission is not consent.³⁰ Deception leaves the choice in place but corrupts what is being chosen, since a person misled about the nature of the contact has not agreed to that contact at all.³¹ The qualifier does separate work. Without it, every embellishment that helped win a yes would turn a willing participant into a victim, and liability would depend on the motives behind each agreement. Tying the inquiry to the interest the offense protects means that only pressure or deception undermining that specific interest defeats the assent.

Force and threats are the simpler half, because force is often part of the offense itself. At common law rape required force or a threat of force, and a threat to do very mild injury would not suffice.³² Modern statutes have loosened the requirement, and in many states the minimal force needed to accomplish penetration satisfies it, while some courts have held that unlawful threats that involve no violence, such as blackmail, can support a rape charge.³³ The older view treated threats of economic harm or reputational damage as falling short of the force element, although the actor might be guilty of another crime such as extortion.³⁴ Courts remain divided on coercion without violence: in Commonwealth v. Mlinarich an equally divided Pennsylvania court left standing a refusal to convict a guardian who threatened to send a delinquent girl back to reform school unless she had sex with him, and in State v. Thompson a Montana court acquitted a high school principal who obtained intercourse by threatening to withhold a student's graduation.³⁵ That division is the qualifier at work. Whether a nonviolent threat defeats consent turns on whether the law defining the offense is aimed at that kind of pressure, and a statute built around physical force may leave the blackmailer to a different charge.

A threat need not be aimed at the assenter to defeat consent. In one standard illustration an intruder enters a woman's home, points at her one-year-old child, and uses words demanding compliance with his sexual demands as the price of not harming the child. Her acquiescence resembles the acceptance of a contract offer under duress, because she had no real choice, and her request that he use a condom does not turn submission into agreement.³⁶ The same logic appears outside sexual offenses. In the search setting, acquiescence after an officer falsely claims to hold a warrant is treated as submission to asserted authority, which is not consent.³⁷ Where consent is disputed, the actor's own coercive words are relevant proof of the coercion, and the words themselves are usually the only way to prove it.³⁸

The word duress in paragraph (d) needs one clarification, because the same word names a defense elsewhere in the criminal law. There, a person coerced into committing what would otherwise be criminal conduct cannot be guilty of most crimes.³⁹ That defense asks whether pressure on the actor excuses the actor's own conduct. Paragraph (d) looks at pressure on the other person and asks whether that person's yes still counts as consent to what the actor did. The pressured party in the defense is the defendant, and in paragraph (d) it is the alleged victim, so proof of one never establishes the other.

Deception about the nature of the act is the central case. A physician who tells a patient that an examination is for treatment, when the physician's purpose is sexual gratification, obtains a yes to something other than what is happening, and tort law treats that consent as invalid for that reason.⁴⁰ The same reasoning reaches a person who obtains agreement to intercourse without revealing a communicable venereal disease, because the concealment kept the other person from appreciating the true nature of the contact.⁴¹ These examples come from tort law, so they supply parallel reasoning and are not themselves the criminal rule. In De May v. Roberts a physician brought an unprofessional young man into a patient's home and introduced him without disclosing his true character, and the court held that the patient's consent to his presence, given in the belief that he was a physician, did not bar recovery once she learned who he was.⁴² Medical battery applies the same idea: a patient who is not told the very nature of the touching has not consented, and fraud in obtaining a patient's consent has long sounded in battery, although the burden of proving fraudulent inducement is a heavy one.⁴³

Criminal law draws its own line with the traditional distinction between fraud in the factum and fraud in the inducement. Fraud in the factum misleads the victim about the very fact of what the defendant is doing and cannot produce effective consent, while fraud in the inducement misleads about some collateral matter and can.⁴⁴ The physician supplies a matched pair. A doctor who has intercourse with a patient who believes the patient is only submitting to an examination or operation commits fraud in the factum, so there is no consent. A doctor who instead persuades the patient that intercourse would be effective treatment obtains consent, because the patient knew what was occurring and was misled only about why to agree.⁴⁵ In Boro v. Superior Court the defendant posed as a doctor's representative and falsely told the victim that she had a disease that an injection, which the defendant would supply through intercourse, could cure. The court found fraud in the inducement because the victim knew she was consenting to intercourse, though the same facts could have been read as a mistake about the kind of activity involved.⁴⁶ Impersonating the victim's husband sits at the contested edge, since it is often placed on the factum side but authority is split.⁴⁷

Because that line is much disputed, the Model Penal Code asks a more useful question: whether the deception was of a kind sought to be prevented by the law defining the offense.⁴⁸ That test also explains why the same lie can have different effects under different offenses, since for battery both forms of deception may be treated as barring effective consent, while rape has traditionally excluded fraud in the inducement.⁴⁹

Set that beside the physician. In both situations someone said yes after hearing something false, and what moved the answer is where the falsehood landed. The borrower's lie explained why the book was wanted, while the physician's lie changed what the patient understood the contact to be. The first leaves the agreement to the act intact, and the second means the person never agreed to the act that took place.

Answers go wrong when they treat every lie or every pressure as defeating consent, and they go wrong in the other direction when they assume that only physical violence can matter. Paragraph (d) is selective: deception about the nature of the act and threats that leave no real choice are the clearest cases, a lie about a collateral matter does not count unless the offense targets it, and a nonviolent threat counts when the offense is written to reach that kind of coercion.

Exam Analysis Steps

Because the paragraph turns on the link between the pressure used and the interest the offense protects, it is best run by reading the offense first and the inducement second. The steps are these:

Read the law defining the offense to see what interest it protects and whether it speaks to force, threats, or deception in its own terms, since the opening qualifier of § 2.11(3) lets that law control.
Identify what induced the assent: physical force, a threat that left no real choice, or a false belief about the act or about something around it.
If the inducement was deception, ask whether it concerned the nature of the act, which is the central case, or only a collateral matter such as motive or circumstances.
Ask whether the offense is written to prevent that kind of force, threat, or lie, and conclude that the assent is not consent if it is, and that the assent stands, subject to the other paragraphs of § 2.11(3), if it is not.

Legal Incompetence

Youth, Impairment, and Intoxication

Improvident Consent

Force, Duress, and Deception

Endnotes50