Introduction

Consent as a Defense

Introduction

A guest who steps through a front door at the host's invitation and a stranger who steps through the same door at midnight make the same physical movement, yet the law treats only the second as a wrongdoer. What separates them is what the person inside wanted, which is a strange fact for a criminal court to weigh, because the state and not the victim brings the prosecution. The general rule reflects that tension: a victim's consent is usually no defense to a crime, so it is no answer to a murder charge that the victim supplied the gun, and the agreement of pledges does not excuse statutory hazing.¹ The usual explanation is that a criminal offense wrongs the public at least indirectly, and one person cannot license a wrong done to everyone.² Yet many offenses are written so that the victim's willingness decides whether anything wrongful happened. Tort law supplies a parallel line of reasoning: a plaintiff who consents to a touching has no complaint, because "he who consents is not injured," and the defendant's conduct is not wrongful at all.³ Criminal law borrows that idea and channels it through a statutory text.

That text is Model Penal Code § 2.11(1): "The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense."⁴ The sentence contains two routes joined by "or," and each poses its own question. The first asks whether the offense is defined so that the victim's lack of consent is part of the wrongful conduct, as with rape, or with trespass defined as entry without consent, so that effective consent removes a required element.⁵ The second question arises when the definition never mentions consent. Larceny requires a trespassory taking, which is absent when the owner's consent is obtained in certain ways, and battery requires an unlawful application of force, which may likewise be absent when the victim agreed.⁶ In those cases the inquiry is whether the consent prevented the specific harm or evil the offense was written to address.

The two routes rest on a single idea about what criminal law protects. Offenses against the person, property, and liberty guard interests that belong to an identifiable victim, and that victim is ordinarily entitled to decide how those interests are used. When the victim agrees, the particular invasion the offense targets may never occur. The state's interests do not always shrink to the victim's wishes, however, which explains why § 2.11 does not make consent a general defense and why its remaining subsections cut the defense back.⁷ Subsection (2) limits consent where the offense turns on bodily injury, so consent to serious harm does not carry the force of consent to a harmless touching. Subsection (3) addresses the antecedent question of when assent counts as consent at all, since a person who agrees under force, deception, or incapacity may have said yes without effectively consenting.⁸ This chapter follows the statute's order. It begins with the first question: does the definition of the charged offense make the absence of consent a required element, so that effective consent removes that element?