It used to be that courts applied an objective definition of consent in rape prosecutions. This was because of traditional force and resistance requirements:
First, courts interpreted the element of force to require that the man overpower the woman or threaten her with death or physical injury. If a woman submitted to subtle forms of coercion, the law would view her submission as consent. Second, common law courts required rape victims to resist unwelcome advances “to the utmost.”
As a result, “[i]nstead of crediting the victim’s perspective,…court[s] turned the question of consent into a normative question about the quantity and quality of force used by the aggressor.” Feminists, however, have been largely successful in getting courts and legislatures to eliminate or relax force and resistance requirements, leading to an increased focus on the alleged victim’s subjective state of mind and an increased recognition of individual autonomy as the primary purpose of prohibiting sexual assault.
The converse, however, has occurred with regard to consent in the Fourth Amendment context.
It used to be that courts determined whether a suspect consented to a police search by applying a “totality of the circumstances” test which considered both subjective (the characteristics of the accused) and objective (the conduct of the police and the circumstances surrounding the interrogation) circumstances. But “[w]hile sexual assault law began to credit the subjective understanding of the person claiming she did not consent, Fourth Amendment law began eliminating the subjective inquiry almost entirely.” That’s not to say that courts have read subjective circumstances out of Fourth Amendment consent law.
“Officially, the subjective prong is still viable” in determining if a search was consensual, noted Ric Simmons, but after [the Supreme Court’s opinion in United States v. Drayton, 536 U.S. 194 (2002], in practice, the voluntariness test for consent has become so inextricably linked to the objective Fourth Amendment test for seizure that it is unlikely that the subjective elements will ever be reaffirmed by the courts.” The majority framed this objective question of consent as whether a reasonable innocent person would know “that he or she was free to refuse” the search. Scholar Joshua Dressler summarized the current state of consent law in this way: “In reality, the concept of voluntariness is a normative one. The real issue for courts is whether the police methods of obtaining consent are morally acceptable.” In other words, if the Court approves of the actions taken by police, it will deem that the individual submitted voluntarily. If the Court finds the actions of police to be unacceptable, then the Court will hold that the civilian merely submitted to a show of authority. In truth, the consent exception has nothing to do with what the victim of the search wanted.
So, should courts import modern consent doctrine from rape cases into Fourth Amendment cases so that there is a “victim perspective” for searches and seizures and the recognition that autonomy and privacy are the core goals of consent policy? That’s the argument by Josephine Ross, an Associate Professor and the Supervisor of the Criminal Justice Clinic at the Howard University School of Law, in her recent article, Blaming the Victim: ‘Consent’ Within the Fourth Amendment and Rape Law, 26 Harv. J. Racial & Ethnic Just. 1 (2010), which I highly recommend to readers. I asked Professor Ross what led her to write the article, and she responded as follows: