Constitutional Limits

Constitutional Limits

Everything taught so far treats consent as something a criminal code supplies. Section 2.11 tells a court when a victim's assent negates an element of an offense, precludes the harm the offense targets, or excuses a bodily injury, and the boundaries of that defense, such as the rules on serious injury and ineffective assent, are boundaries the drafters chose.¹ The Constitution contributes a different limit that operates one level higher, because it asks whether a legislature may make the conduct a crime in the first place. That limit sits outside § 2.11. A defendant who invokes it attacks the statute itself, while a defendant who invokes § 2.11 accepts the statute and argues that the Code's consent provision defeats liability under it.

The leading illustration is Lawrence v. Texas. Texas made it a crime for two persons of the same sex to engage in certain intimate sexual conduct, and the Court held that the statute violated the Due Process Clause of the Fourteenth Amendment.² The case involved two adults who, with full and mutual consent, engaged in private sexual conduct, and the Court concluded that the statute furthered no legitimate state interest capable of justifying its intrusion into their personal and private lives.³ In reaching that result the Court overruled Bowers v. Hardwick, which had arisen when a man was charged under Georgia's sodomy statute for conduct with another adult male in his own bedroom.⁴ The Court also adopted the view that a governing majority's traditional moral disapproval of a practice is not a sufficient reason, standing alone, for upholding a law that prohibits it.⁵

Consent alone does not carry that result. It works together with other facts, and the reason shows in what a legitimate prohibition normally needs. A state ordinarily punishes conduct to prevent harm to other people, to protect those who cannot protect themselves, or to preserve an interest such as the sanctity of life. Where the participants are adults who agree, the conduct is private, and no one else is affected, the first two purposes have nothing to attach to, and what remains is disapproval, which the Court held insufficient.⁶ The Court marked the boundaries itself by listing what the case did not involve: minors, persons who might be injured or coerced or who are in relationships where consent might not easily be refused, public conduct, and prostitution.⁷ Each exclusion restores one of the missing purposes, which is why the list echoes the ineffective-consent categories of § 2.11(3). A minor and a coerced person are the people a prohibition may protect from an apparent agreement, and an injured person is the harm a prohibition may prevent.

The same adult willingness leads the other way where the state's interest is the preservation of life. In Washington v. Glucksberg the Court held that a state may constitutionally make medically assisted dying illegal.⁸ The opinion traced prohibitions on assisting suicide to the common law, where the consent of a homicide victim was irrelevant to the killer's guilt, noted that the bans never carved out an exception for those near death, and observed that legislatures had reaffirmed them even as they expanded patients' rights to refuse treatment.⁹ The Model Penal Code likewise prohibits aiding suicide, and its drafters explained that the interest in the sanctity of life is threatened by anyone willing to take part in ending another's life, even with the victim's consent or request.¹⁰

The two decisions show consent doing opposite constitutional work, and the fact that separates them is the state's interest. In Lawrence the conduct reached no one but the consenting adults and disapproval was all the state could offer. In Glucksberg a long-reaffirmed interest in protecting life remained in place despite the individual's agreement, which is the same reasoning that makes a homicide victim's consent immaterial. Glucksberg also leaves the choice with the states, since it holds a ban permissible and does not hold it required. In Baxter v. Montana a divided Montana Supreme Court found that state statutory law gave physicians a consent defense to homicide and assault charges for providing medically assisted dying, where the patient was competent, terminally ill, truly consenting, and treated consistently with the medical standard of care.¹¹

Answers go wrong when they treat Lawrence as a general consent defense, as though a participant's agreement defeats any prohibition. The decision rests on the absence of any legitimate state interest in punishing private conduct among consenting adults, and it leaves minors, coerced persons, public conduct, and prostitution where they were.¹² The vocabulary calls for equal care, because the word consent also names unrelated doctrines, such as the argument in a partial dissent in New York v. United States that a State's participation in a cooperative scheme showed assent to its terms, and the Fourth Amendment rule that a voluntary consent lets police search without a warrant.¹³