Wednesday, March 05, 2014

The Relationship Between Consent and Nonconsent

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.


David Ricardo said...

With respect to searches and consent I would as a non-attorney like to pose the following question.

Are police allowed to search the premises (1) unless the party(ies) object, or (2) are police not allowed to search the premises unless the party(ies) consent?

This is not just rhetoric. In the first case it would seem that once one of the parties residing in the premises has objected then the search cannot be made absent a warrant. Otherwise the objecting party’s rights are violated after that party clearly stated that he or she objected to the search. The second party should not be allowed to unilaterally abrogate the Constitutional rights of the objecting party. And the fact that the police hauled away the objecting party after he made his objection, leaving the premises in control of the non-objecting party would appear to be a clear violation of the protection against unreasonable search.

However, if the second situation rules than it would seem that once the objecting party has been removed, for whatever reason, then if consent is given by the remaining party that search is legal. In this situation the police have indeed obtained consent from a party residing on the premises, which is their only requirement.

Which is it, or is this analysis flawed?

matt30 said...

I'm confused by the analogy. In your example your religious instructor thought that piety/modesty was the best way to respect the autonomy of women from the threat of male subjugation.

Your chief insight is that option to be modest, regardless of the consequences, is true autonomy.

Here the boyfriend's autonomy is being violated by the government because it doesn't allow him the option of pre-defining the scope of his privacy and make it effective on others (the government, the girlfriend)?

Seem like the analogy is flawed because it doesn't take into account the new factor in the Fernandez case, the autonomy of the girlfriend.

Privacy only exists to the extent your confidants also recognize that some piece of information is in fact private.

The girlfriend could have just brought all the incriminating evidence to the door, and I think in that case we would say that the boyfriends attempt to control his sphere of privacy is irrelevant.

It seems utterly strange to say that a person's words are talismanic, regardless of the effort (or lack thereof) a person puts into making something something private.

I suppose I'm Lockean about privacy.

egarber said...

I think there is another dimension to all of this: whether as a matter of law the government has the power to act irrespective of any "consent" given.

As an (admittedly stupid) analogy, if I'm Novak Djokovic playing in the Australian Open, I'm not allowed to over-rule through consent a line call that *benefits* me. Likewise, if I voluntarily give up my First Amendment right to read DoL, my "consent" doesn't somehow empower the state to monitor my blog habits.

I guess I'm curious about the whole doctrine behind waiving rights generally. Why wouldn't the safer play just be to always put the burden on the state when a basic right is implicated? Like you say, "consent" in a fourth amendment context might actually be coercion (my paraphrase), which is something the constitution guards against.

Unknown said...

Here the boyfriend's autonomy is being violated by the government because it doesn't allow him the option of pre-defining the scope of his privacy and make it effective on others (the government, the girlfriend)? | |

Seem like the analogy is flawed because it doesn't take into account the new factor in the Fernandez case, the autonomy of the girlfriend.

Unknown said...


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