by Sherry F. Colb
My Verdict column this week discusses the recent Supreme Court case of Fernandez v. California, which held that one co-occupant can give the police valid consent to a search, even if the other co-occupant expressed his opposition to the search earlier (and is absent from the premises only because the police removed him in the course of a lawful arrest). My column takes the occasion of this decision to talk about how the Court classifies "consent" searches as "reasonable" searches and contends that the classification (and its doctrinal development) are less than ideal. In this post, I want to talk about the relationship between consent and non-consent more generally.
In its opinion in Fernandez, a majority of the Court contends that the consenting co-occupant's autonomy is best honored by treating her consent as decisive, notwithstanding the earlier objections of her now-absent (and abusive) boyfriend. In response to this claim, Justice Ginsburg suggests in a footnote of her dissent that the woman who consented to the search may have felt pressured to do so by the police and did not truly experience herself as exercising any real autonomy under the circumstances. This is a very important point and one that, I argue, should have received more attention in the dissent.
Let us put to one side, however, the question whether the woman in Fernandez did or did not truly consent to the police search at issue in the case. I want to focus here on the asserted relationship between consent and non-consent in facilitating autonomy.
As the majority in the case suggests, it dis-serves the autonomy of a person who sincerely wishes to consent to a search if we ignore that consent or allow someone else (in this case, a battering boyfriend) to overrule the consent from afar. In the case of police searches, of course, it may seem odd to maintain that prohibiting a search to which a homeowner has consented will substantially undermine the woman's autonomy. The Fourth Amendment, after all, protects people's interest in security against unreasonable searches and seizures rather than the affirmative interest in being searched, upon a voluntary consent.
If we turn from the area of search and seizure, however, to the area of sexuality, we can quickly see that the ability to have one's privacy against unwanted intrusions honored is significantly connected to the corresponding ability to have one's interest in pursuing wanted sexual interactions honored as well.
When I was growing up, I attended an ideologically conservative, Orthodox Jewish elementary school. In this school, our curriculum was divided into religious subjects, taught by religiously devout teachers, and secular subjects (such as math, science, social studies, literary arts, etc.), taught mainly by secular, religiously nonobservant teachers. In my religious classes, I learned about the concept of "modesty" or "tzniyut," in Hebrew. One aspect of modesty in Orthodox Judaism requires women and adolescent girls to avoid wearing clothing that might be described as sexy or provocative. Different groups of Orthodox Jews interpret this requirement in different ways, but in my school, we were taught to wear skirts that covered our knees and shirts that covered our elbows and were not very tight. The goal was to obscure the salience of the female form.
The teacher who taught us about modesty told us that Judaism (and by extension, other religions that impose rules of modesty on women and girls) respects females and aims to protect them from harassment and mistreatment. By contrast, the teacher claimed, secular America embraces pornographic images that implicitly value women only for their bodies and sexual attractiveness. At the time, this sounded plausible to me, and the highly sexualized images of women that we saw all around us (on billboards, in magazines, in television advertisements, etc.) seemed to confirm the claim. In a religious setting, a woman could obscure her sexual attractiveness and nonetheless be taken seriously as a thinking person, I concluded. The secular world highlighted women's sexuality and used it to degrade and subordinate women.
What I failed to appreciate at the time was that "modesty" of my school and the hyper-sexualized imagery of the world outside were not quite the opposites that my teacher had maintained. They instead represented the two "options" for women in settings in which women are given little autonomy: you can either be a Madonna (the mother of Jesus, not the singer) -- a good girl who refuses sexual advances and maintains her purity -- or a Whore, one who is sexually available to the highest bidder. One cannot, however, choose to be neither of these and instead dress however one pleases, consent to sex with some people, and refuse to consent to sex with others, and be taken seriously on one's own terms. One cannot, in other words, be an autonomous sexual agent, in the way that men can be autonomous sexual agents.
The very idea of "provocative" clothing implies that men (those who are, in this scenario, "provoked" by a woman's revealing clothing) are not really responsible for their sexual behavior. Once a woman turns them on, they simply must act on their arousal by harassing or assaulting the woman in question. The woman therefore has only one choice to make -- will she hide her sexuality and stay safe (or at least have people take her sexual assault seriously, if it occurs) or will she act on her own sexual urges and then assume the risk that she will arouse men in whose sexual company she is uninterested. Stated differently, the woman's non-consent is honored, but only so long as she never consents. Once she consents, she waives the right to withdraw that consent in the future, either from the particular man or, if she is unmarried, from any man.
My teacher said none of this, of course, but I think that it was implicit in the suggestion that it is women's responsibility to dress modestly and thereby avoid "attracting" unwanted attention. To say that one has to cover one's body to avoid being harassed or assaulted is to strongly imply that if one is harassed or assaulted after failing to cover up, it is one's own fault. When I attended college, long after I had learned about modesty, I came to believe in the contrasting slogan chanted at "Take Back the Night" rallies: "However we dress, wherever we go, yes means yes and no means no." In other words, dressing provocatively or walking around alone at night does not constitute any sort of "waiver" of bodily and sexual integrity. To suggest otherwise is to (improperly) blame predatory behavior on the victim.
How is all of this relevant to the Fourth Amendment? Its relevance is, as I suggested above, not very clear when the issue is whether to permit a consent search to go forward. Unlike sexual autonomy, it is rare that anyone would feel very strongly about her right to say yes to a police request for consent to search her home. The Fourth Amendment importance of consent to non-consent, however, has application beyond the consent search context. For example, people regularly decide to share their privacy (in their persons, houses, papers, and effects) with other people, and that ability to include others in their private zones is in fact part of what makes the privacy so valuable to people in the first place.
Yet the Supreme Court has consistently viewed people's decision to share their privacy with others as akin to a forfeiture of that privacy. Examples include the fact that none of the following receives privacy protection under the Fourth Amendment against police intrusion: the garbage one has left outside the curb of one's home (in part because one has consensually "shared" the garbage with the garbage collector and thereby effectively waived any interest in its privacy); the secrets one confides in a close friend who is actually an undercover police officer wearing a wire and electronic transmitter (because one has consensually "shared" one's confidences with a perceived friend); and -- most significant to the legality of the NSA's surveillance -- the phone numbers that one calls from one's telephone (because one has consensually "shared" that information with the telephone company).
In each of these examples and many others, the person in question could not really function in the world without "sharing" information or visual access to one's life to someone, a third party -- whether a close friend or a business whose services one needs. Yet the Court has often treated such life-enhancing (or life-necessitating) sharing as a waiver of one's privacy against police intrusions into the private areas of one's life.
It is true, of course, that if one broadcasts information or visual (or audio) access to one's life to "everyone" (for example, by yelling secrets across a crowded street), then police invade no reasonable expectation of privacy by also listening in. However, individuals sometimes choose to share their privacy in a less indiscriminate manner, much as people decide to have consensual sex with some but not other individuals. For police to treat such limited exposures as a relinquishment of privacy from government surveillance shares something in common with the decision to treat "promiscuous" women as subject to lawful harassment or worse.
Ultimately, for the law to show respect for an individual's right to say no (i.e., the right to privacy against unwanted intrusions), it must show due regard for the same individual's right to say yes to some intrusions and nonetheless retain the option of saying no to others. In that way, the options of consent and non-consent are intimately linked, and there truly is an autonomy interest (even as the Court perhaps opportunistically invokes it in Fernandez) in deciding when one wishes to share one's most private spaces with others, of one's own free will.