Lack of Valid Consent

Lack of Valid Consent

The definition of false imprisonment ends on a qualifier: the confinement must be without the person's valid consent.¹ That qualifier makes consent the companion limit to unlawfulness. Because kidnapping is false imprisonment aggravated by carrying the victim out of the country, the same limit passes into kidnapping.² The voluntary-game scene earlier in this chapter showed the effect: the locked storeroom was identical in both versions, and B's agreement alone separated the crime from the non-crime. What that scene left open is what makes consent valid, and the answer has two requirements. The consent must be freely and voluntarily given, and it must come from a person who has legal capacity to consent.³ Coercion, threats, and deception defeat the first requirement, while mental illness, substantial cognitive impairment, and youth defeat the second.⁴

Each requirement rests on its own reason. Consent defeats the offense at all because false imprisonment punishes the loss of a person's control over where to be, and a person who agrees to stay or to go is exercising that control, so the harm the offense targets has not occurred. The voluntariness requirement keeps that logic from being counterfeited. A yes produced by a threat or a trick reflects the actor's decision, since the actor built the pressure or the false picture that produced it, and if such a yes counted, any actor could escape liability by extracting agreement first and confining second. The capacity requirement does separate work. Agreement expresses a choice only when the person can understand what is being agreed to, so a person who cannot appreciate the choice exercises no real control over location by saying yes, and the people least able to protect themselves would otherwise be the easiest to hold.

Adding one fact reverses the result.

The two scenes match on the room, on B's stay in it, and on B's adult capacity, and they differ only in the threat, which makes voluntariness the fact that moved the answer. The exam error is treating a spoken yes as valid consent. Words of agreement appear in both scenes, so their presence settles nothing. The inquiry asks whether the agreement was free and whether the person had capacity to give it, and a fact pattern that mentions agreement is usually inviting exactly that inquiry. A defendant who points to the victim's apparent agreement has therefore carried the argument only as far as the next question, which is what produced the agreement and whether the person was able to give it.

The detail comes in three steps. The next subsection covers what valid consent does and where its edges lie, the one after it takes up coercion, threats, and deception, and the last takes up incapacity from mental illness, cognitive impairment, and youth.

Effect of Valid Consent

Valid consent to a confinement defeats a charge of false imprisonment, and because kidnapping is false imprisonment aggravated by carrying the victim out of the country, it defeats a kidnapping charge as well.⁸ The reason lies in what the offense punishes. False imprisonment takes over a person's control of where that person will be, and a person who agrees to stay or to go is exercising that control, so the person's liberty has not been invaded and no wrong is left for the law to punish. That is why consent works as a complete answer: when the consent is real, no confinement offense remains to charge, and the question of grade never arises. The introduction to this part set out what makes consent valid, freedom from coercion and legal capacity, and the next two subsections return to those requirements. This subsection assumes the consent is valid and asks how far it reaches.

Consent reaches only as far as the person gave it. The logic that makes consent a defense also limits it, because consent matters only as an exercise of the person's own choice, and a choice covers what the person actually chose. A person who agrees to a ride to one destination has chosen to be carried there and has not chosen to be carried anywhere else. When the actor goes past what was agreed, the confinement beyond that point is one the person never accepted, so it is without valid consent and the rule that consent defeats the charge does not extend to it.⁹ Withdrawal follows the same structure. A person who agrees to remain is still the one controlling location, so if that person later says he wishes to go, any continued holding is a confinement against his will that the earlier agreement no longer covers.

Changing what the actor does with the ride, while leaving what the passenger agreed to untouched, reverses the result. In Matter of Appeal in Maricopa County, hitchhikers consented to be driven to their homes, but the driver instead took them, over their objections and under threats of death, to a distant and remote place, and the court held that they were kidnapped.¹¹ Because that holding applies a modern kidnapping statute, it serves here to show the limit of consent and does not restate the common-law cross-border definition. The hitchhikers' agreement covered the ride home and nothing further, so it gave the driver no defense to the diversion. The threats of death add a second problem, since a yes produced by such threats would be invalid in any event, a point the next subsection develops.

The two ride scenes begin identically, with an adult's agreement to be driven home, and they differ in one fact: whether the actor stayed within the trip that was agreed. In the first scene the rule applies and there is no liability. In the second the consent was exceeded, so it fails to cover the conduct and liability can follow. Withdrawal produces the same result in a setting with no travel at all.

On an exam, the usual error is treating agreement to one part of the trip as agreement to all of it. A fact pattern that opens with the victim's yes is often setting up a later change, such as a new destination, a longer stay, or a refusal to let the person go. The analysis should fix exactly what the person agreed to, compare that with what the actor did, and treat any conduct beyond the agreement as a confinement without consent. Whether the original agreement was itself voluntary and given by a person with capacity is a separate question, taken up in the subsections that follow.

Coercion and Deception

Consent counts only when it is freely and voluntarily given, and two kinds of pressure on the choice defeat that requirement: coercion or threats that make refusing costly, and deception that hides what the person is actually agreeing to.¹⁴ The law treats them as one idea because both leave the yes without a free choice behind it. A threat leaves the person free to answer, but only between the confinement and whatever harm the actor has promised, and the actor wrote both options. A deception leaves the person free to answer as well, but about a situation the actor has falsified, so the person approves a trip or a stay different from the one that happens. In each case the actor has used the appearance of agreement to accomplish the confinement. Honoring that appearance would reward the manipulation, since any actor could extract a yes by pressure or pretext and then offer it as a defense.

Threats are the clearer case. In Matter of Appeal in Maricopa County, hitchhikers who had agreed to be driven to their homes were instead driven, over their objections and under threats of death, to a far distant and remote place, and the court held that they were kidnapped.¹⁵ The previous subsection used that case to show that consent stops where the agreement stops. The threats of death add a separate reason the driver had no defense. Once the driver had made them, any compliance the passengers showed on the road was produced by the threats, so it lacked the freedom that valid consent requires and could not be offered as consent to the longer trip.¹⁶

Deception does the same work without any menace. Kidnapping can be accomplished by fraud as well as by force, as when a man induces a girl into his car ostensibly to babysit but in fact to take her elsewhere for sexual activity, a pattern for which State v. Missmer, a Washington decision, is the cited authority.¹⁷ The girl entered the car willingly, and no force was used to put her there. Her agreement, however, was to a babysitting errand that the man had invented to get her into the car, so the lie concerned the destination and purpose of the trip, the very things she was agreeing to. Because deception defeats the free and voluntary character of consent, her agreement does not count, and the taking is one without valid consent.¹⁸ Her youth raises a separate capacity question, which the next subsection takes up, so an adult version of the same facts isolates the effect of the lie.

The honest scene and the babysitting pattern share a car, an invitation to babysit, and a willing passenger. They differ in whether the stated purpose was the real one, which makes the truth of that statement the fact that moved the answer. If A had named a babysitting job that did not exist and driven B to a remote cabin to hold B there, B's agreement would have been procured by deception and would be invalid, and the confinement at the cabin would be without valid consent.

A caution about labels keeps the pieces in their proper places. The traditional definition asks for a forcible abduction, and this chapter keeps that wording as the measure of the common-law offense.²⁰ The recognition that fraud can stand in for force in procuring a victim belongs to modern kidnapping law, where some statutes expressly reach the forcible or fraudulent taking of a person from a place of residence.²¹ Deception does its work at a different level. It invalidates consent in the confinement offense that sits beneath kidnapping, which is why a deceived person's agreement gives the actor no protection. An answer to a common-law question should therefore place the lie in the consent analysis and should not read fraud into the word forcibly.

On an exam, the usual error is treating a willing entry as consent. A fact pattern in which the victim climbs into the car, agrees to the stay, or goes along without resistance invites the conclusion that nothing happened without consent. The sound move is to look behind the willingness for whatever produced it, which means a threat that made refusal costly or a falsehood about where the person was going and why. If either is present, the willingness is the actor's product and the confinement is without valid consent. If neither is present and the person has capacity, the consent stands, within the limits on its scope covered in the previous subsection.

Incapacity to Consent

Voluntariness is only half of what makes consent valid, and the other half is capacity. Consent must come from a person who has legal capacity to give it, so a person whose mental illness, substantial cognitive impairment, or youth prevents that capacity cannot validly consent to a confinement.²³ The two requirements ask different questions. Voluntariness, covered in the previous subsection, looks at what produced the yes and asks whether a threat or a lie stood behind it. Capacity looks at who is saying yes and asks whether that person was able to make the choice at all. A confinement can therefore fail the capacity requirement with no threat and no trick anywhere in the facts, and an actor who was gentle and truthful still holds the person without valid consent.

The reason capacity matters follows from what consent does. Consent defeats false imprisonment because a person who agrees to stay or to go is exercising control over where to be, and agreement counts as an exercise of control only when the person can understand what is proposed and weigh it against the alternative. A person who cannot do that produces the sound of a choice without making one. Mental illness and substantial cognitive impairment can remove that ability in an adult, and youth can remove it in a child whose understanding is still developing, so the three grounds differ in cause and share one missing ingredient. The word substantial in the second ground signals that the impairment must be serious enough to undermine the person's ability to understand and decide. The rule also removes a temptation. If a yes from someone unable to appreciate it counted, the people least able to protect themselves would be the easiest to hold, because an actor would need no threat and no lie, only a question that is certain to be answered agreeably.

The effect of capacity is clearest when the facts stay constant and only the person's ability changes. A competent adult's agreement is the baseline.

Replacing B with a young child changes one fact and reverses the result.

Impairment in an adult produces the same result by a different cause.

The first two scenes match on the apartment, the weekend, the absence of any threat or lie, and the spoken yes. They differ only in the person's capacity, which makes capacity the fact that moved the answer. The third scene reaches the second scene's result without any child in it, which shows that the ground can vary while the missing ingredient stays the same.

Youth raises a question that the other grounds do not, which is where childhood ends for purposes of consent. The common-law statement of the rule names youth as a ground without attaching a number to it, and statutes supply the line.²⁷ Child-stealing statutes, which punish leading, taking, enticing, or detaining a child under a specified age with intent to keep or conceal the child from a parent or guardian, set that age differently from one jurisdiction to the next, and some reach any minor child.²⁸ A child under the age a statute specifies is incapable of giving a legally recognized consent.²⁹ An answer that applies a particular statute should therefore use the line that statute draws. Where the facts give only a description such as a young child, the answer should reason from capacity itself and ask whether the person was able to understand and weigh what was proposed.

On an exam, the usual error is treating a cheerful yes as consent. A fact pattern that describes a child who happily agreed, or an impaired adult who seemed willing, is usually testing whether the reader looks behind the agreement for a capacity defect. After finding that someone agreed, the analysis asks two further questions: whether a threat or a lie produced the agreement, and whether the person was able to give it. A failure on either leaves the confinement without valid consent. The competent adult with full capacity who freely agrees marks the other side of the line, since nothing undermines that consent and it stands, within the limits on its scope covered earlier.