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252.6 Consent, Actual

    252.6.1 Miscellaneous Issues

    252.6.1.1 Consent: General Principles
    252.6.1.2 Consent Defined
    252.6.1.3 Consent: Distinguished From Assent
    252.6.1.4 Lack Of Consent As Element Of The Charged Crime
    252.6.1.5 Consent: Improper To Define As "Positive Cooperation In Act"
    252.6.1.6 Consent: Improper To Instruct That "Mere Passivity Does Not Amount To Consent"

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    See FORECITE National™ 252.6.1.2 [Consent Defined].

    See FORECITE National™ 252.6.1.3 [Consent: Distinguished From Assent].

    See FORECITE National™ 252.6.1.4 [Lack Of Consent As Element Of The Charged Crime].

    See FORECITE National™ 252.6.1.5 [Consent: Improper To Define As "Positive Cooperation In Act"].

    See FORECITE National™ 252.6.1.6 [Consent: Improper To Instruct That "Mere Passivity Does Not Amount To Consent"].

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RATIONALE:  Without an instruction defining the term "consent" the jury may not understand its legal meaning.

POINTS AND AUTHORITIES: The word "consent" has been defined as "capable, deliberate, and voluntary assent or agreement to, or concurrence in, some act or purpose, implying physical and mutual power and free action (Webster’s Dictionary)." (See Klett v. Security Acceptance Co. (CA 1952) 38 C2d 770, 790 [242 P2d 873].)

    "But consent, in law, is more than a mere formal act of the mind. It is an act unclouded by fraud, duress, or sometimes even mistake." (Butler v. Collins (CA 1859) 12 C 457, 463; see also Heine v. Wright (CA 1926) 76 CA 338, 342 [244 P 955].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Robinson, Criminal Law Defenses (West, 1984) § 6, pp. 307-319, 536-39.

See also generally, FORECITE National™ 305.3.10 [Consent].

SAMPLE INSTRUCTION:

    In a legal sense the word "consent" means capable, deliberate, free and voluntary assent or agreement to, or concurrence in, some act or purpose, implying physical and mutual power and free action which is unclouded by threats, or duress.  It presupposes that the person to be affected has knowledge of his rights.  If, therefore, consent is given or obtained by means of unwarranted threats, or is given by a person without full knowledge of his rights, such a consent has no force or effect whatsoever, and the legal effect of consent given under such circumstances is the same as though no consent were given.

[Source:  Klett v. Security Acceptance Co. (CA 1952) 38 C2d 770, 790 [242 P2d 873].]

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    Consent means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice to do something proposed by another. Consent differs from assent. Consent implies some positive action and always involves more than mere submission. Assent means mere passivity or submission, which does not include consent. Submission to a compelling force, or as a result of being put in fear, is not consent. A person who was conscious and possessed of natural mental and physical powers when the attack took place must have resisted to the extent of her ability at the time, unless it appears that she was overcome by numbers or was so terrified by threats as to overpower the will to resist.

[Source: Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 4.36 [Rape Offenses] ¶ 6, p. 380 (Lexis, 2nd ed. 1988).]

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PRACTICE NOTE: Lack of consent often is an essential element of offenses such as rape, kidnapping, abduction, theft, and trespass. (See Robinson, Criminal Law Defenses (West, 1984) § 66(b) p. 308.)  Hence, the burden of persuasion is nearly always on the prosecution to prove beyond a reasonable doubt that the victim did not consent.  (Id. at pp. 308-09; see also People v. Coleman (IL 1987) 520 NE2d 55, 59; ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 3d 11.58B, note [Issues In Aggravated Criminal Sexual Assault-Aggravation By Age] (West, 3rd ed. 1996).)

    Accordingly, the instructions should not include language which suggests that consent is a defense or that somehow requires the defense to present evidence or persuade the jury concerning consent. (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(C) [instructions on criminal sexual conduct] (South Carolina CLE, 1994) pp. 133-34.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].

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    252.6.1.5    Consent: Improper To Define As "Positive Cooperation In Act"

PRACTICE NOTE: In California, the standard pattern instruction on consent (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 1.23.1 ["Consent"–Defined In Rape, Sodomy, Unlawful Penetration And Oral Copulation] (West, 6th Ed. 1996) provides, in relevant part, that consent in a sex case "shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will." This definition violates the federal due process clause.

    At the outset, it is essential to note that the rape, sodomy, oral copulation and penetration with a foreign object statutes all contain the element that the proscribed sex acts must be "against a person's will" or "against the victim's will." (See e.g., California Penal Code §§ 261(a)(2); 286(c); 288a(d)(1) and 289(a).) However, pursuant to CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 1.23.1 ["Consent"–Defined In Rape, Sodomy, Unlawful Penetration And Oral Copulation] (West, 6th Ed. 1996) the quoted elements are, in fact, defined as sex acts if they are committed without the "positive cooperation in act or attitude" of the alleged victim. Clearly, this rewriting of the concept of consent is totally at odds with the principle of fairness which is inherent in the due process clause.

    In this regard, the common law has always held that rape does not occur unless the sex act is against the person's will. (People v. Barnes (CA 1986) 42 C3d 284, 297 [228 CR 228].) Or, stated more fundamentally, the law proscribing rape protects the victim against the "outrage" of being sexually violated. (People v. Vela (CA 1985) 172 CA3d 237, 243 [218 CR 161].)

    Notwithstanding these traditional notions, a statute which permits a rape conviction based on a lack of positive cooperation drastically alters the nature of consent. Previously, society protected a victim against acts which were imposed on him or her contrary to his or her will. Now, the law provides that a person's mere neutrality or ambiguity about a sex act can turn the act into a criminal violation (i.e. a person who neither resists nor exhibits "positive cooperation in act or attitude ...."). Lest this discussion seem more theoretical than real, the following hypothetical demonstrates the problem presented by California's new definition of consent.

    Assume that a wife and husband have been married for ten years. During this time, the wife has had no desire for sexual intercourse with her husband. However, on a regular basis, the husband has engaged in sexual intercourse with the wife. On these occasions, the wife has not protested. Moreover, the wife has always remained very stationary during the sex act. Although not expressed to her husband, the wife's attitude about these events is that it is part of the marriage contract although she does not enjoy participating.

    Clearly, under the common law, the wife has not been raped. While she did not enjoy the sex acts, she manifestly consented since the acts were not against her will (i.e. she believed that it was her duty to participate). However, under the "positive cooperation" definition of consent, insofar as she did not have a "positive attitude" about having sex and did not "positively cooperate" in the sex acts, the wife has been raped.

    In light of the hypothetical, the question remains whether such definition of consent passes muster under the federal constitution. Under the due process clause, a state is free to define the elements of crimes as it sees fit. (McMillan v. Pennsylvania (1986) 477 US 79, 85 [106 SCt 2411; 91 LEd2d 67].) However, the Supreme Court has cautioned that "'there are obviously constitutional limits beyond which the States may not go in this regard, ...'" (Ibid.) Presumably, the limits set by the due process clause are those statutes which offend "'some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." [Citation.]'" (Ibid.)

    Applying the cited test, California's definition of consent is completely out of step with traditional common law. In this regard, the 230 year old rule in Anglo-American law is that consent will not be found when the person's "'will has been overborne and his capacity for self determination critically impaired, ...'" (Schneckloth v. Bustamonte (1973) 412 US 218, 225 [93 SCt 2041; 36 LEd2d 854].) Under California Penal Code § 261.6, this traditional rule has been cast aside as has been demonstrated in the hypothetical.

    Moreover, it must be emphasized that the definition set forth in California Penal Code § 261.6 cannot be squared with any rational notion of the nature of legal consent. For example, when a citizen consents to a police search of his or her property, is the consent given with a "positive attitude?" Usually not. Thus, it is simply unfair to a defendant to create a rarefied and nontraditional definition of consent when lack of consent is an element of a criminal offense. Such a result defies our traditional notions of justice. (See Schad v. Arizona (1991) 501 US 624, 640 [111 SCt 2491; 115 LEd2d 555] (plurality opn. of Souter, J.) ["a freakish definition of the elements of a crime that finds no analogue in history or the criminal law of other jurisdictions will lighten the defendant's burden" of showing a due process violation]; but see People v. Gonzalez (CA 1995) 33 CA4th 1440, 1442-43 [39 CR2d 778].) 

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].

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PRACTICE NOTE: The term "consent" has been recognized to be a "concrete and commonly understood" word (People v. Acevedo (CA 1985) 166 CA3d 196, 204 [212 CR 328]) and, therefore, specific definition of the term is not necessary. Moreover, stating that "mere passivity does not amount to consent" raises the term to a "higher level of abstraction" and could "only cause ... confusion ...." (Acevedo, 166 CA3d at 204.) If specific instruction on the term is to be given, that instruction should be based on the common dictionary definition such as "voluntary agreement to or concurrence in" the asportation. (See Kiseskey v. Carpenter's Trust (CA 1983) 144 CA3d 222, 235 [192 CR 492].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.10 [Consent].