Blaming the Victim: ‘Consent’ within the Fourth Amendment and Rape Law

Abstract

The history of rape law can illuminate the Fourth Amendment’s doctrine of consent. Over the past forty years, feminists have criticized rape law for treating unwanted physical intrusions as if they were consensual. Feminist theorists argued that the underlying purpose of rape law should be the protection of women’s autonomy and bodily integrity and that the law should therefore recognize even subtle forms of coercion as incompatible with true consent. Turning to the legal hurdles against rape convictions, feminist scholars criticized the force requirements as too onerous. Instead, the law should credit the woman’s perspective in determining if she submitted due to coercion or if she truly consented to the sexual intercourse. Whatever one thinks about feminism’s success or failure in changing rape law, the theorists certainly shed light on the fact that the law often fails to credit women’s subjective experience when determining consent. This article posits that the Fourth Amendment consent doctrine suffers from many of the same infirmities as rape law. Examining the theories that helped propel change to rape law, this article shows how critiques of rape law apply with equal force to the ever-expanding Fourth Amendment consent doctrine. Under the current Supreme Court rules, police may bypass the usual Fourth Amendment requirements for searches and seizures, such as probable cause and warrant, as long as the officer convinces a judge that an individual consented to the seizure of his person or to a search. As a practical matter, consent legitimizes searches and seizures based on hunches, racial profiling, or even harassment. The Court justifies this end-run around the constitutional protections by explaining that the consent exception promotes the dignity of individuals by giving them the choice whether to invite police intrusions. As this article shows, there are many parallels to be drawn between rape and Fourth Amendment consent law. Although both claim to protect the dignity of choice, like rape law, the Fourth Amendment fails to ask if a subject wishes to be seized or touched, focusing instead on the amount of force and coercion used by the police. Also like rape law, the Fourth Amendment fails to recognize that subtle forms of coercion are incompatible with true consent. Both Fourth Amendment and rape law blame subjects who submit to subtle coercion, telling them they had a choice. Just as rape victims were told they asked for it by wearing short dresses and not screaming for help, individuals are told they asked for it by extending their arms to be searched. The consent-to-search doctrine has long troubled lawyers and scholars in the criminal justice field. With this article, the inequities will also become apparent to those less familiar with the Supreme Court's search and seizure decisions.