consent and the grammar of theft law - SSRN papers

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CONSENT AND THE GRAMMAR OF THEFT LAW Stuart P. Green*

INTRODUCTION Harvard Law Professor Joseph Beale, referring to the general and special parts of the criminal law, once remarked that “no one should try to study one until he has mastered the other.”1 Despite its paradoxical quality, Beale’s observation rings true. Anyone who studies, teaches, or writes about the criminal law faces a significant challenge in balancing concern with general principles against attention to specific offenses: An overemphasis on the special part can lead to a certain narrowness of focus; too much emphasis on the general part can result in incompleteness and overabstraction. During his distinguished career, George Fletcher has navigated the path between the special and the general parts with unusual skill and ingenuity.2 Among his earlier works, Rethinking Criminal Law3 is particularly notable in this regard. Rather than beginning with a * L.B. Porterie Professor of Law, Louisiana State University. An earlier version of this article was presented at the Benjamin N. Cardozo School of Law Conference on George Fletcher’s The Grammar of Criminal Law, where I received many helpful comments and questions. I also benefited from separate conversations with Vera Bergelson, Antony Duff, and Ken Simons. 1 I originally heard of Beale’s remark from my late colleague, Lee Hargrave, though I have been unable to find any additional documentation of it. . 2 Since this conference is intended as an appreciation of George Fletcher, it seems appropriate to say a few words about the man here. I first had contact with George about a dozen years ago, when I was an unpublished, assistant law professor teaching in my first year at LSU. George was already an internationally known scholar and author of various classic works in criminal law theory. I had sent him, unsolicited, a draft of an article I had just completed, hoping, at most, for an acknowledgement. A couple of weeks later, to my delight and surprise, I received from George a lengthy email containing a collection of insightful comments on the piece. George’s thoughts were both a practical help in the process of revision and a source of real encouragement. In the years since, I have been the beneficiary of George’s help and encouragement on numerous other occasions as well, usually communicated through the magic of email received from a variety of far-flung locations, such as Jerusalem, Beijing, and Freiburg (rarely, it seems, New York). Like George himself, the emails have been warm and generous, amusing and erudite, and only occasionally exasperating. After all these years, it is still a thrill to see George’s name pop up in my inbox. 3 GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW (1978) [hereinafter RETHINKING CRIMINAL LAW].

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consideration of what might loosely be called “general part”4 concepts such as the nature of crime, the purposes of punishment, the principle of legality, the idea of harm and wrongdoing, and the concepts of actus reus and mens rea, Fletcher began with a detailed consideration of theft and homicide law that occupied the first four hundred of the book’s nearly nine hundred pages. His methodology was to find in the law of theft and homicide basic patterns and principles that were used later in the book to illuminate patterns and principles in the criminal law more generally. In more recent years, Fletcher has moved away from this sort of methodology. His latest work, The Grammar of Criminal Law,5 like his earlier Basic Concepts of Criminal Law,6 follows the more prevalent approach of focusing primarily on general part concepts such as harm, duty, guilt, and acts, rather than on the special part (though the discussion is often informed by reference to specific offenses). My aim here is not to criticize Fletcher for this shift in methodology. Whether one is teaching criminal law or doing criminal law scholarship, one must, to one degree or another, make a choice between the special and general parts. Indeed, that is exactly the point of Beale’s remark. Nevertheless, it seems fair to say that the success of any theory of the criminal law’s general principles must ultimately be judged by its ability to account for various aspects of the special part: If examination of one or more specific offenses proves that there are too many qualifications or exceptions to a theory of the general part that need to be explained away, then we should be skeptical about the adequacy of that theory. In this article, I would like to examine what Fletcher’s Grammar has to say about the role of one important general part concept—that of consent; and to test this account of consent by seeing how it might play out in the context of one specific offense—namely, theft.7 My aim is not to offer a detailed critique of his theory. Rather, I want to use what he has to say about consent as a jumping off point for a discussion of some issues in theft law that I have recently begun thinking about. In the process, I hope also to provide to the literature of consent something

4 On the meaning of the “general” and “special” parts, see generally R.A. Duff & Stuart P. Green, Introduction: The Special Part and Its Problems, in DEFINING CRIMES: ESSAYS ON THE SPECIAL PART OF THE CRIMINAL LAW (2005). 5 GEORGE P. FLETCHER, THE GRAMMAR OF CRIMINAL LAW: AMERICAN, COMPARATIVE, INTERNATIONAL (forthcoming 2007) (manuscript on file with the Cardozo Law Review) [hereinafter GRAMMAR MANUSCRIPT]. 6 GEORGE P. FLETCHER, BASIC CONCEPTS OF CRIMINAL LAW (1998). 7 In seeking to “test” Fletcher’s theory by applying it to specific cases, I am using a variation on the methodology that I earlier used in a review of Fletcher’s Basic Concepts of Criminal Law. See Stuart P. Green, The Universal Grammar of Criminal Law, 98 MICH. L. REV. 2104 (2000).

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of a corrective, by broadening its focus beyond a preoccupation with the law of rape.8 The concept of consent plays a significant role at two key points in Fletcher’s theory. The first is as one of three basic structural components (the others being aggression and self-defense) that, he says, provide a “matrix” for understanding criminal law.9 Fletcher suggests that consent has the potential to “transform” an aggressive criminal act into a non-criminal act—a theft into a sale, a rape into lovemaking, and, in international law, an invasion into humanitarian aid.10 The second is in connection with his discussion of how “certain basic positions about the nature of state and society work themselves out in the criminal law.”11 Fletcher seeks to show the importance that consent plays in liberal and libertarian political theory. In this context, he says, the fact that conduct is performed within a consensual relationship—whether of a sexual or business nature—often provides a good reason for avoiding criminal sanctions.12 My own discussion of consent will proceed along the following lines: First, I take issue with the suggestion, made not only by Fletcher but also by other criminal law scholars, that consent has the ability to “transform” unlawful acts into lawful ones, and vice versa. I argue that this way of speaking about consent offers a misleadingly selective picture of what distinguishes certain kinds of criminal from noncriminal conduct. Second, I call into question the closely related practice, to which Fletcher also subscribes, of thinking of consent as a binary concept, according to which an act is either consented to (in which case it is lawful) or it is not (in which case it is unlawful). Drawing on, and extending, an analytical framework developed by Peter Westen,13 I argue that there are several distinct senses of consent, and that these senses play a crucial role in distinguishing not only between criminal and non-criminal acts, but also between different forms of criminality, especially in connection with the offenses of larceny, false pretenses, extortion, and embezzlement. Third, I argue that the recognition of this multi-faceted conception of consent is also helpful in 8 For recent consent-focused works dealing primarily or exclusively with rape law, see, for example, DAVID ARCHARD, SEXUAL CONSENT (1998); ALAN WERTHEIMER, CONSENT TO SEXUAL RELATIONS (2003); PETER WESTEN, THE LOGIC OF CONSENT (2004); Nathan Brett, Sexual Offenses and Consent, 11 CAN. J.L. & JURIS. 69 (1998); Simon H. Bronitt, Rape and Lack of Consent, 16 CRIM. L.J. 289 (1992); Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. CAL. L. REV. 777 (1988); H.M. Malm, The Ontological Status of Consent and Its Implications for the Law on Rape, 2 LEGAL THEORY 147 (1996); Robin West, A Comment on Consent, Sex, and Rape, 2 LEGAL THEORY 233 (1996). 9 GRAMMAR MANUSCRIPT, supra note 5, at 34. 10 Id. at 39. 11 Id. at 226. 12 Id. at 238. 13 See WESTEN, supra note 8.


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addressing the difficult question of when consent (or, more precisely, non-consent) should be viewed as an element of theft, and when instead it should be viewed as an affirmative defense. I. THE “TRANSFORMATIVE” FORCE OF CONSENT Let us begin by considering the role of consent in Fletcher’s “matrix” of legal order. Fletcher asks us to imagine a simple scenario in which a thief (a burglar) seeks entry to a home (an act that he characterizes as one of “aggression”).14 The homeowner affirms that the intruder is unwanted (he fails to give his consent to entry). The thief persists and the homeowner kills him to prevent the intrusion (he acts in self-defense). Fletcher says that these three basic concepts— aggression, consent, and self-defense—“generate a legal order” at both the domestic and international level.15 Without such a legal order, he says, peaceful coexistence among individuals and nations within society would be impossible. While Fletcher argues for the fundamentality of these three basic concepts, he also acknowledges their extreme complexity. “All three,” as he says, “raise profound questions at both the core and the periphery.”16 In this part of the book, as in others, Fletcher is interested primarily in imaging, at a fairly high level of abstraction, a framework for analysis and a set of questions to be considered. He offers an implicit invitation to other scholars to test the theory and work out some of the details. Although my main interest here is in what Fletcher has to say about consent, it is also appropriate to say something about the other two legs of his construct, aggression and self-defense. As indicated below, I agree with Fletcher that aggression of some sort provides a key element in much criminality, but I do not believe that he tells us enough about exactly what form such aggression takes. Aggression seems less a concept of criminal law doctrine or theory than a concept in criminology or social psychology, where it is in any event highly contested.17 Aggression is also, as Fletcher points out, a (notoriously vague) term of art in international criminal law.18 It is unclear from Fletcher’s account whether we are meant to understand the term

14 15 16 17

GRAMMAR MANUSCRIPT, supra note 5, at 37. Id. Id. See, e.g., K.E. Moyer, Kinds of Aggression and their Physiological Basis, 2A COMMUNICATIONS IN BEHAVIORAL BIOLOGY 65 (1968); KONRAD LORENZ, ON AGGRESSION (Marjorie Kerr Wilson trans., 1966). 18 GRAMMAR MANUSCRIPT, supra note 5, at 38.


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“aggression” in its descriptive sense, which applies to certain aspects of human (and perhaps even animal) behavior, or whether instead “aggression” is meant to be understood in its normative sense. Given that there is both a great deal of aggression that is not criminalized and a great deal of crime that does not seem to involve aggression in its usual senses, I am puzzled as to exactly what role it is meant to play in our conceptualization of criminal law. As for self defense, the concept seems to me less broadly applicable than Fletcher implies. Even if self-defense is taken, as it sometimes is in Continental criminal law theory, as a kind of stand-in for the more general concept of justification or necessity, it is still relevant to only a relatively small category of criminal cases. Moreover, it seems odd to speak of self-defense as an “exception” to the prohibition against aggression.19 Once again, there is an ambiguity here: it is unclear whether aggression is meant to be understood in its descriptive sense or its normative sense. If aggression is understood in the latter sense, then it seems problematic to think of self-defense as an exception to its prohibition, since self-defense is presumably not aggressive in the normative sense. In any event, my main interest here is specifically with the role that consent plays in Fletcher’s triad. He begins with what he says is the logical relationship between the concepts. “In the international arena,” he says, “consent converts invasion into international aid. Consent to the taking of an object transforms theft into a loan or sale . . . . These are radical reversals in our perceptions of human interaction, and they all derive from a single idea: The potential victim consents.”20 The idea that consent has the power to “transform” illegal conduct into conduct that is legal can be traced at least as far back as Rollin Perkins, who wrote that “[w]hat is called a ‘fond embrace’ when gladly accepted by a sweetheart is called ‘assault and battery’ when forced upon another without her consent ….”21 Indeed, this way of speaking about consent has become so seemingly attractive that, in recent years, it has been adopted by various scholars, including Heidi Hurd,22 Alan Wertheimer,23 and Peter Westen.24 I myself have previously cited Hurd with approval on this point.25 19 20 21

Id. at 37. Id. at 39. ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 1075 (3d ed. 1982). We might also say that the removal of consent transforms an otherwise legal act into an illegal one. 22 Heidi M. Hurd, The Moral Magic of Consent, 2 LEGAL THEORY 121, 123 (1996) (“[C]onsent turns a trespass into a dinner party; a battery into a handshake; a theft into a gift; an invasion of privacy into an intimate moment; a commercial appropriation of name and likeness into a biography.”). 23 Alan Wertheimer, What is Consent? And is it Important?, 3 BUFF. CRIM. L. REV. 557, 559 (2000) (“B’s consent can render A’s action morally, institutionally, or legally permissible, as when B’s consent to surgery transforms A’s act from a battery to a permissible medical


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On further reflection, however, it now seems to me that this way of thinking about consent is problematic. To be sure, one can imagine a case in which it might make sense to say, loosely, that a particular course of criminal conduct really was transformed into a non-crime by the addition of consent. For example, suppose that T takes a shortcut across O’s property, knowing that it is O’s property, thereby committing trespass. Imagine further that O observes T in his act, and right there and then, and as a result of nothing more than his own generosity and fellow-feeling (rather than any deception or coercive force), gives his consent to T’s conduct, permitting him to walk across his land. In such a case, we might accurately say that O’s consent had “transformed” T’s illegal trespass into a lawful easement. However, this is certainly not the typical case. As Fletcher himself recognizes, assaults, rapes, and military invasions all typically involve an element of aggression that is absent from fond embraces, lovemaking, and international aid.26 Indeed, the entire character of the respective acts is different. To say that a theft has been transformed into a gift or a rape into lovemaking hardly conveys the psychological complexity of the underlying interaction. Admittedly, consent does play a key role in distinguishing between criminality and noncriminality. For example, consent is a necessary condition for lovemaking, and the lack of consent is (or ought to be) a sufficient condition to make intercourse rape. Nevertheless, by saying, or implying, that the only, or key, difference between these acts is the presence of consent, we run the risk of trivializing the moral wrongfulness of the underlying criminal act. Rather than seeing the difference between rape and lovemaking in terms of one particular quality (or lack of quality), we need instead to think in terms of a host of contextual factors. This contextual emphasis might have two levels: first, the decision whether something is rape or lovemaking would be based on a host of contextual factors; and, second, even if it comes down to consent, or if it comes down to consent being crucial, the analysis of what it means for V to consent to D will depend not on some identifiable mental state but on another host of contextual factors.27 procedure, or when B’s consent to A’s use of her land absolves A of trespass.”). 24 WESTEN, supra note 8, at 112 (“Legal consent by S vis-à-vis A transmutes what would otherwise be ‘larceny’ by A into charity; ‘kidnapping’ into companionship; ‘trespass’ into hospitality; ‘assault’ into sport; ‘maiming’ into surgery; and ‘rape’ into intimacy.”). 25 Stuart P. Green, Theft by Coercion: Extortion, Blackmail, and Hard Bargaining, 44 WASHBURN L.J. 553, 568-69 (2005) [hereinafter Theft by Coercion]. 26 Though it doesn’t seem quite right to say, as Fletcher does, that consent “negate[s] the illegitimate quality of aggression.” GRAMMAR MANUSCRIPT, supra note 5, at 39. Rather, it seems that aggression and lack of consent run on parallel tracks. 27 It may be helpful to think about this second point in Wittgenstinian terms. Wittgenstein challenges the view that concepts such as meaning, understanding, and intending can be reduced to mental states (or, indeed, any state whatsoever). He asks particularly about the connection


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At the very least, we need to refine our way of speaking about the acts that are said to be transformed by consent. One possible approach would be to incorporate the concept of “basic actions,” which has been dealt with by scholars such as Antony Duff.28 In describing the relationship between voluntary acts and volitions in his work on criminal attempts, Duff enumerates the multiple descriptions under which any given human act might be characterized. For example, if Pat breaks John’s window, we could offer at least the following (increasingly complex) descriptions of what Pat did: “Pat moved her arm,” “Pat threw a stone,” “Pat threw a stone at John’s window,” “Pat broke John’s window,” “Pat committed criminal damage,” and so forth.29 As Duff recognizes, most, if not all, of these descriptions refer to non-basic actions—actions which are done by doing something else.30 For example, Pat threw the stone and broke John’s window and committed criminal damage by moving her arm. In the end, Duff is properly skeptical that any fully adequate account of action “basicness” can be developed that will serve the theoretical ends he has set for himself.31 Nevertheless, an approach that incorporates some notion of basicness would seem to be promising in the current context. Rather than saying that some criminal act is transformed into a non-criminal act by the addition of consent (or that some non-criminal act is transformed into a criminal one by the removal of consent), we should say instead that some more basic act will be regarded as criminal or non-criminal depending on whether such act is accompanied or informed by consent (as well as other relevant factors).32 The problem is determining exactly what the basic act should be. In the case of rape and lovemaking, a good candidate is the act of sexual intercourse. Under such an approach, we would say that an act of sexual intercourse should be regarded either as rape or as lovemaking depending on whether it is accompanied or informed by consent (among other factors). In the case of theft and gift-giving, however, it is more

between intending to play a game of chess and actually playing it. LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS § 197 (Basil Blackwell ed., G.E.M. Anscombe trans., 1978). He asks, “Where is the connexion effected between the sense of the expression ‘Let’s play a game of chess’ and all the rules of the game?” His answer, as I understand it, is that the intention to play a game consists not in some identifiable mental state but rather “in the list of rules of the game, in the teaching of it, in the day-to-day practice of playing.” Id. I am grateful to Steven Gerrard for his help in formulating this point. 28 R.A. DUFF, CRIMINAL ATTEMPTS 239-63 (1996). 29 Id. 30 Id. 31 Id. at 256-63. 32 Indeed, Fletcher himself gets this right when he says at one point that “[c]onsent to sexual intercourse transmutes an act that would otherwise be rape into … love-making.” GRAMMAR MANUSCRIPT, supra note 5, at 39.


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difficult to say exactly what the basic act should be. Presumably, it is something like “taking possession of property.” Thus, we would say not that a theft is transformed into a gift by means of consent, but, rather, that what determines whether the more basic action of taking another’s property should be regarded as a theft, or as a gift, is whether the action is accompanied by (among other things) the taker’s awareness that the person from whom property is taken has given her consent. In suggesting that it is problematic to talk about the ability of consent to transform illegal acts into legal ones (and of non-consent to transform legal acts into illegal ones), I hope to do more than raise a quibble with the existing literature. In fact, I believe that this way of talking about consent is symptomatic of a deeper and more pervasive conceptual error into which some consent theorists have fallen— namely, the tendency to think of consent as a binary concept in the criminal law, according to which the victim either consents or does not; and to think that such consent is relevant solely to the question of whether the actor has performed a criminal act, rather than to the type of criminal act committed. It is to these subjects that I now turn. II. VARIETIES OF CONSENT The second way in which the concept of consent figures in Fletcher’s theory is in connection with his discussion of political theory. According to Fletcher, consent plays a particularly significant role in the philosophy of libertarianism (and, to a lesser extent, that of liberalism).33 Conduct that libertarians regard as consensual—whether in the sexual or economic sphere (such as incest or usury, respectively)—falls outside the scope of what they believe should properly be subject to state sanctions, in part because whatever harm such conduct causes is not the kind of “public” harm that is properly subject to such sanctions. Under this view, people who do not enter into such relationships have nothing to fear.34 People who do enter into such relationships and find themselves victimized are partly to blame for their predicament.35 According to Fletcher, the influence of such libertarian-type views has led to some surprising doctrines in the history of theft law. As he explains in his discussion of embezzlement: A entrusts goods to B, who then appropriates them to his own use. If the owner did not trust the suspect, the latter would never be in a 33 34 35

Id. at 31-51. Id. at 235. Id.


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position to commit the crime. When a bank teller takes money from the till, the bank’s personnel department is at least partly to blame for not having checked the teller’s background more carefully. In fact, embezzlement did not come under the sanctions of the criminal law until the end of the eighteenth century. A mere breach of trust was not thought to be a crime—it was not perceived as threatening the public interest. This was true not only in England, but in France, Germany and other Continental jurisdictions.36

At the same time, Fletcher recognizes that such a broad conception of consent can pose a real potential for mischief. As he puts it: [T]he notion of consent becomes tenuous in these cases. The bank consents to the hiring of the employee, but not the misappropriation of the money. Desirée Washington consented to visiting boxer Mike Tyson in his hotel suite at 2:00 a.m., but she did not thereby consent to sexual relations. The only true form of consent is one in which the affected party fully embraces the harmful event, either as an end or a means.37

In this section, I want to focus on the just-quoted claim that the “only true form of consent is one in which the affected party fully embraces the harmful event.” At one level, this assertion seems uncontroversial: If by “true form of consent,” Fletcher means “fully valid, legal consent,” then it seems right to say that a “full embrace” of the act’s consequences is required. At another level, however, the implication that the criminal law is concerned only with whether the victim consents, and not with the particular circumstances of such consent, seems mistaken. As I shall now suggest, there are various senses in which we can talk about consent, and these senses are relevant in distinguishing not only between criminal acts and non-criminal acts but also between different types of criminal conduct. In identifying the various forms of consent that I have in mind, it will be helpful to begin with the basic conceptual framework developed by Peter Westen.38 According to Westen, there are four basic senses in which we use the term “consent.” The first, which he calls “factual attitudinal consent” reflects the consenter’s state of mind at the time she consents; it occurs when the consenter’s “all things considered” desire is to acquiesce in the requested conduct.39 Thus, a person who agrees to have sex or surrender property in order to avoid threatened physical

36 Id. at 235-36. Fletcher goes on to note: “The same reasoning applies to the proposed punishment of fraud in the Corpus Juris for the European Union. No one can defraud the Union unless the Union is willing to do business with them. The relationship is voluntary and therefore the Union always contributes to the circumstances of its ill-advised payments to dishonest recipients.” Id. at 236. 37 Id. at 238. 38 WESTEN, supra note 8. 39 Id. at 4.


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injury can be said to have consented in the factual attitudinal sense of the term because, all things considered, she prefers to submit rather than to suffer the threatened harm. The second kind of consent Westen refers to is “factual expressive consent.”40 Here, the consenter not only acquiesces mentally to the proposed action but also makes her acquiescence known. Her physical act of expression (whether verbal or non-verbal) refers to her underlying state of mind and sends a signal to an observer that she consents. To the extent that her observer is contemplating some action vis-à-vis the putative consenter, such expression of consent is of obvious significance. The third of Westen’s forms of consent is “prescriptive consent.”41 This is the first of two kinds of consent, he says, that is recognized by the law. In order for consent to be prescriptive, it must be made voluntarily, knowingly, and competently. Factual attitudinal or expressive consent is involuntary if it is made under the pressure of coercion; it is unknowing if it is obtained through deception; and it is incompetent if it is given by one who is incapable of understanding that to which she consents. The final form of consent that Westen identifies is “imputed consent.”42 Imputed consent is a second form of legal consent, but one that does not achieve legal effect by incorporating elements of factual attitudinal or factual expressive consent. There are several forms of imputed consent: constructive, informed, and hypothetical. In the case of constructive consent, consent to X equals consent to Y; in the case of informed consent, consent to a risk of X equals consent to Y; in the case of hypothetical consent, we determine that, based on what we know about the consenter, she would consent if she were competent to do so. Although Westen’s overarching concern is with rape law, his framework will nevertheless be helpful as a starting point for our discussion of theft. To that end, let us consider the following four hypotheticals: (1) V stores his bicycle on a rack next to his house so that it is clearly visible from the street. One day, while V is away from home, D walks onto his property and carries the bike away with the intention of depriving V of it permanently. (2) D threatens V that unless V gives D his bicycle, D will: (a) burn down V’s house; or (b) reveal V’s extramarital affair to V’s spouse. V submits to D’s threat and hands over the bike.

40 41 42

Id. at 5. Id. at 6. Id. at 7.


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(3) D offers to pay $100 for V’s bicycle, and V accepts D’s offer. D takes possession of the bicycle, falsely promising to return shortly with the money. He never does. (4) D is a neighborhood teenager who sometimes does odd chores for V. One day, V loans his bicycle to D to ride to the hardware store to pick up some tools. D rides off with the bicycle and never returns.

The questions I want to begin with are: (1) which, if any, of Westen’s forms of consent are present in these hypotheticals?; and (2) how does such consent figure in the way in which the applicable offenses are defined? The first hypothetical obviously involves larceny, which is the unlawful taking and carrying away of the property of another with the intent to deprive the owner permanently of such property. It seems clear in this case that V has not consented—attitudinally, expressively, or prescriptively—to D’s taking. Nor is there, on these bare facts, any basis for imputing consent to V. The second hypothetical, involving extortion and blackmail, has a dramatically different character. Using Westen’s terminology, we can say that the victim has consented in both the attitudinal and expressive senses of the term but not in its prescriptive sense. In deciding to surrender his bicycle, and expressing such consent to D, V has decided that, all things considered, he prefers to surrender his bike rather than suffer the threatened harm. But because V was subject to coercion from D, he lacks the voluntariness that prescriptive consent requires. The third hypothetical involves fraud (or false pretenses). Once again, we have a case of attitudinal and expressive consent but no prescriptive consent. V falsely believes that D will return shortly with his money, and he acquiesces on the basis of this false belief. V is unable to give prescriptive consent because he lacks the relevant knowledge that prescriptive consent normally requires. Relying on Westen’s framework in this way should offer a useful means of avoiding many of the confusions and ambiguities that attend the use of the term “consent.” But, perhaps because it is less sensitive to the particular concerns of theft law than it is to rape law, it will be necessary to extend, and elaborate on, Westen’s theory. Let us begin by reconsidering the offense of extortion. Extortion is typically defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear . . . .”43 Westen, as indicated, would refer to the kind of consent required by the definition of extortion as expressive consent. The interesting point, however, is that, to the extent that such consent is contained in the definition of the offense, it is not merely expressive 43

Hobbs Act, 18 U.S.C. § 1951(b)(2) (2000) (emphasis added).


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consent: It is also prescriptive, in the sense that its presence or absence determines not whether a theft has been committed in the first place, but rather which form of theft has been committed. If property is taken without consent of any kind being given, then we have a simple case of larceny; but if property is taken pursuant to the giving of attitudinal and expressive consent, and such consent has been obtained as a result of coercion, then we have a case of extortion. Moreover, the law cares not only about the fact that consent is prescriptively invalid but also about the specific causes of its invalidity. If property was acquired through consent obtained by coercion, then, as we just saw, we treat the act as extortion. But if property is acquired through consent obtained by deception, then we treat it as fraud. Once again, we might say that the distinction among different forms of invalid consent has prescriptive force.44 Indeed, with respect to coercion, the law of theft makes an even more finely nuanced distinction. If consent is obtained as a result of D’s threatening to engage in what would, absent the threat, be illegal behavior—for example, if D threatens to “break V’s kneecaps” unless V pays up—then we say that extortion proper has occurred. But if consent is obtained as a result of D’s threatening to engage in otherwise legal, if unwanted, behavior—for example, if D threatens to expose V’s embarrassing secret unless V pays up—then we say (at least in American usage) that the crime committed is blackmail.45 44 Such distinctions between non-consent and invalid consent can be observed in the law of sexual offenses as well, though in a less dramatic fashion. For example, the Model Penal Code distinguishes between “rape” and “deviate sexual intercourse by force or imposition.” MODEL PENAL CODE §§ 213.1, 213.2 (Proposed Official Draft 1962). Rape is analogous to larceny. The defendant forces the victim to submit by force or physical injury. Deviate sexual intercourse is analogous to fraud and extortion. The defendant causes the victim to engage in intercourse by means of a threat or by tricking her into being unaware that a sexual act is being committed upon her. Consent is also often an element of statutory rape, a typical formulation of which is that a “person who is nineteen years of age or older has sexual intercourse, with consent, with a person who is thirteen years of age or older but less than seventeen years of age . . . .” La. Crim. Code 14:80(A)(1) (2006) (emphasis added). Here, the term “with consent” is used to distinguish statutory rape from forcible rape, even though the minor’s consent is held to be per se invalid as a matter of law. While rape law distinguishes between sex obtained without any consent and sex obtained through invalid consent, it does not distinguish between cases in which invalid consent is obtained through fraud and those in which it is obtained through coercion. Rape law in this context is thus somewhat less finely nuanced than the law of theft. 45 I explore the different meanings of blackmail in American and British usage and how the offense differs from extortion in detail in Theft by Coercion, supra note 25. There does not appear to be any analogous distinction in the law of rape. On the other hand, there is one way in which the law of rape is more nuanced than that of theft with respect to deception-obtained consent. If sexual intercourse was obtained as a result of deception that caused the victim to misunderstand the very nature of the conduct in which she is engaging (“fraud in the factum”), then we say that her consent is vitiated. For example, it is rape if the victim is unaware that she has consented to the act of sexual intercourse, as where she was tricked by her doctor (or someone posing as a doctor) into believing that what was taking place was a vaginal examination or surgical operation when in fact it was sexual intercourse. See, e.g., Boro v. Superior Court,


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Finally, there is the offense of embezzlement, reflected in the fourth hypothetical above. Here, as Fletcher himself recognizes, V does indeed consent—attitudinally, expressively, and prescriptively. But what D consents to is V’s use of the bike, not his conversion of the bike for his own purposes. Indeed, as in the case of larceny, V does not give even his attitudinal or expressive consent to D’s conversion, since he was in fact unaware of D’s act. Once again, the fact that V consented to a prior act of D’s affects not whether the act should be regarded as criminal, but rather the particular crime it constitutes. So what, if anything, is the deeper significance of all of these various consent-related distinctions? The answer, I believe, lies in connection with the notion of fair labeling, the concern of which is, in Andrew Ashworth’s words, to “see that widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signaled by the law, and that offences should be divided and labeled so as to represent fairly the nature and magnitude of the law-breaking.”46 Such labeling is important in determining what constitutes a proportional punishment, for evaluating prior convictions, and in sending the appropriate signal to the public. The question I want to ask, then, is whether the principle of fair labeling recommends distinguishing between larceny, embezzlement, fraud, and extortion. Some authorities have suggested that the traditional distinctions among larceny, false pretenses, embezzlement, and extortion are the product of nothing more than historical accident.47 Indeed, this seems to be the basic premise upon which the supposedly progressive, Model Penal Code-inspired consolidation of theft law is premised. This is not the place to argue against the wisdom of such consolidation, although I expect to do so on a future occasion.48 For the moment, I simply want 163 Cal. App. 3d 1224 (Cal. Ct. App. 1985). However, if the victim understands the basic nature of the transaction but is mistaken about certain material facts (“fraud in the inducement”), then her consent will not normally be vitiated. For example, it is not rape if the victim consented to sex, knowing that it was sex, but was misled into believing that her partner was a certain celebrity or that he intended to marry her. See, e.g., State v. Ely, 194 N.W. 988 (Wash. 1921). Theft law reflects no such distinctions. A defendant who obtains property from a victim by misleading her regarding the specific material terms of the agreement is just as guilty of fraud as one who misleads her regarding the basic nature of the agreement. The fact that fraud was used “in the inducement” rather than “in the factum” is no defense in the criminal law of theft, although it may in some cases affect the validity of the contracts entered into. See generally JOEL FEINBERG, HARM TO SELF 292-93 (1986). 46 ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW 89-90 (4th ed. 2003). 47 See, e.g., Van Vechten v. Am. Eagle Fire Ins. Co., 146 N.E. 432, 433 (N.Y. 1925) (“The distinction [between embezzlement and larceny], now largely obsolete, did not ever correspond to any essential difference in the character of the acts or in their effect upon the victim.”); John G. Douglass, Rethinking Theft Crimes in Virginia, 38 U. RICH. L. REV. 13, 35 (2003) (similar); Dale E. Bennett, The Louisiana Criminal Code: A Comparison with Prior Louisiana Criminal Law, 5 LA. L. REV. 6, 37 (1942) (distinctions between larceny, embezzlement, and false pretenses said to be “technical . . . [and] without any substantial basis . . . . [the] product of historical accident.”). 48 I am currently working on a book tentatively titled PROPERTY, CRIME, AND MORALS:


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to ask whether there are widely felt differences between the kinds of conduct that underlie larceny, fraud, extortion, and embezzlement. Does fairness demand that larceners, extortionists, fraudsters, and embezzlers be treated differently? Is it appropriate to send a signal to the public that these acts should be regarded as morally distinguishable? Conclusive answers to these questions are not easily arrived at. It is certainly not obvious how extortion, larceny, fraud, and embezzlement should be ranked in terms of their degree of moral wrongfulness. On the one hand, we might think that both fraud and extortion are more morally wrongful than larceny because, in addition to the wrongful taking of property, they also involve the use of deception and coercion, respectively.49 On the other hand, we might think that the victim of fraud or coercion, who is at least negligent in “allowing himself” to be defrauded or coerced into giving his consent to the taking of his property, can be said to share in the offender’s fault.50 For the moment, I shall not attempt to resolve this question. Instead, I shall be content merely to suggest that, regardless of the wrongfulness ranking we ultimately arrive at, it seems reasonable to suppose that the acts underlying larceny, fraud, extortion, and embezzlement should, at least for purposes of fair labeling, be regarded as morally distinct. THEFT LAW IN THE INFORMATION AGE. I certainly take comfort in Fletcher’s own skepticism about the wisdom of theft consolidation. As he notes in Rethinking Criminal Law: The curious aspect of this reduction of all theft offenses to assaults upon the single interest of property is that it equates all [such] offenses in their gravity. Yet we have reason to believe that the offenses should be differentiated in their seriousness. How else can we explain why larceny dates back to the beginning of recorded legal history, while embezzlement is born of legislative command in the late eighteenth century? How else can we explain the tendency at various stages of history to regard one of the offenses as worthy of greater condemnation [and punishment]? RETHINKING CRIMINAL LAW, supra note 3, at 30. 49 This is the kind of approach I take in STUART P. GREEN, LYING, CHEATING, AND STEALING: A MORAL THEORY OF WHITE COLLAR CRIME 223-24 (2006). 50 For an argument to this effect, see generally Vera Bergelson, Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law, 8 BUFF. CRIM. L. REV. 385 (2005) (proposing that the perpetrator’s liability be reduced to the extent that the victim, by his own acts, has diminished his right not to be harmed). An analogous argument has been made in the realm of tort law. In tort law, a plaintiff who brought a claim for fraud traditionally had to show not only that he had relied on the defendant’s misrepresentation but also that he was reasonable in doing so; thus, a plaintiff who was at fault in relying on a defendant’s misrepresentation would be barred from recovery. See Andrew R. Klein, Comparative Fault and Fraud, 48 ARIZ. L. REV. 983 (2006) (arguing that a plaintiff who is at fault in relying on a defendant’s misrepresentations should have his claim evaluated according to comparative fault principles). The idea that the consent of the victim, even when invalid, might reduce the fault of the theft offender also raises an additional possible wrinkle in the first hypothetical: Imagine that the bicycle that V stored outside his house was not locked or in any other way protected from theft, that this fact was apparent to anyone passing by on the street, and that V lives in a “high crime” neighborhood where bicycle thefts occur frequently. If V’s bike were stolen while he was away from home, there would clearly be no argument that he had given attitudinal, expressive, or prescriptive consent to its taking. But it would be interesting to consider the possibility that the case involves some (admittedly outlying) form of what Westen calls “informed” consent.


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III. NON-CONSENT AS AN ELEMENT, CONSENT AS A DEFENSE One of the curious things about the concept of consent in the criminal law is that it surfaces in both a positive and negative form. Consent in the positive form can serve as an affirmative defense: The prosecution alleges that D raped V; D offers evidence that V consented to intercourse. Here, consent plays an exculpatory role. Consent in its negative form can also function as an offense element: For example, in order to prove that D committed rape on V, the government may be required to show that D did not consent to intercourse. Here, consent’s role would be inculpatory. There is no consistent, across-the-board rule to determine which form of consent should apply to any given offense. In the case of assault offenses, for example, consent has traditionally functioned as a defense.51 By contrast, in the case of rape (at least in its modern form), non-consent serves as an element of the offense.52 In this section, I want to say something about how consent should function in the allocation of proof as it occurs in the law of theft. As we shall see, the multi-faceted approach to consent recommended in the previous section with respect to the definition and grading of theft offenses will prove relevant here. Fletcher’s Rethinking Criminal Law53 offers some important insights into the process of determining when consent should be a defense, and when non-consent should be an element of the offense.54 Under the approach described there, we would examine the underlying prima facie moral norm according to which the suspect conduct is prohibited and ask whether this underlying norm ordinarily includes a lack of consent. If the basic prohibitory norm includes the idea of nonconsent—i.e., if the conduct becomes bad only or primarily when consent is lacking—then the offense should include non-consent as an element. But if consent arises primarily as an exception to the norm, then it should function as a defense.55 As in the case of “basic actions,” dealt with above, it will sometimes be difficult to determine the proper level of abstraction when describing the relevant prohibitory norm. There is no a priori means for 51 See, e.g., MODEL PENAL CODE § 2.11(2) (“[w]hen conduct is charged to constitute an offense because it causes or threatens bodily harm, consent to such conduct . . . is a defense . . . .”). 52 See, e.g., Ariz. Rev. Stat. 13-1406 (1999) (defining sexual assault as sexual intercourse with another person “without consent of such person”). 53 RETHINKING CRIMINAL LAW, supra note 3. 54 Id. at 568-68; see also Claire Oakes Finkelstein, When the Rule Swallows the Exception, 19 QUINNIPIAC L. REV. 505 (2000). 55 RETHINKING CRIMINAL LAW, supra note 3, at 568-68


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doing so; we must appeal to the social context in which the acts are performed. In the case of rape, there is only some small subset of acts of sexual intercourse that can be considered harmful or wrongful in a way that the criminal law is properly concerned with—namely, those acts of intercourse that are performed without the consent of one of the parties. Thus, it seems reasonable to define the prohibited norm not as “sexual intercourse” per se but rather as “sexual intercourse without consent.” In fact, the law of rape reflects just such an understanding. Even in those jurisdictions that do not follow the modern approach of expressly defining rape as “sexual intercourse without consent,” the offense definition still requires that sexual intercourse be obtained “through force”—a proxy (though an admittedly poor one, in light of modern sensibilities56) for lack of consent. To take the alternative route and define rape as simply “sexual intercourse,” and then allow “consent” to be asserted as a defense, would invite an almost comically inefficient, intrusive, and disorienting use of prosecutorial and judicial resources. In the case of murder and assault, on the other hand, the most plausible underlying norm—namely, the norm against killing and injuring—is so broad that it makes sense to introduce concepts such as self-defense and consent only as defenses (if at all). That is, killings and injurings are prima facie wrongful; it is only some limited subset of them that are not. It is these exceptions that comprise the applicable defenses. And what about theft? Fletcher maintains that, here, the choice between non-consent as an element and consent as a defense is more difficult than in the case of rape or assault. As he puts it, “how does the norm against stealing read? Do not take the goods of another? Or is it rather: Do not take the goods of another without consent?”57 Fletcher continues, “[w]e find it hard to determine whether taking and using another’s property is sufficiently incriminating to constitute an incriminating event. Should the element of non-consent be added to seal the inculpatory effect? Need we consider the intent permanently to deprive as an aspect of [the] prohibitory norm?”58 In the end, Fletcher leaves unanswered the question of how exactly theft law should decide the issue of consent as a defense versus non-consent as an element. In my view, the role of consent in theft law is both less, and more, complicated than Fletcher acknowledges. It is less complicated in the sense that lack of consent does seem like an essential element, if not of all theft offenses, then at least of the most basic form of theft, namely, 56 See generally Donald A. Dripps, Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent, 92 COLUM L. REV. 1780 (1992). 57 RETHINKING CRIMINAL LAW, supra note 3, at 566. 58 Id. at 568.


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larceny.59 Thus, the answer to his (properly rephrased) question, “how does the norm against [larceny] read?,” is surely “do not take goods of another without consent,” rather than “do not take the goods of another.” The latter rule seems overly broad in the way that “do not have sexual intercourse” is an overly broad means of defining the norm underlying the offense of rape. The fact is that we “take the goods of others” every time we purchase goods at the store, accept a gift, or receive a loan. It is in large part the lack of the property holder’s consent that makes such takings wrong and therefore incriminating. Indeed, the offense of larceny is invariably defined as the “unlawful” taking of property of another, where the term “unlawful” serves as a (perhaps imperfect) proxy for “lack of consent” in much the same way that “with force” serves as a proxy for “lack of consent” in the law of rape. As we move, however, away from the core theft offense of larceny, and toward alternative theft offenses such as extortion, fraud, and embezzlement, the roles of consent and non-consent become even more complex than Fletcher acknowledges. The reason is that the offenses of extortion, fraud, and embezzlement all involve prohibitory norms that are distinguishable from that underlying larceny: As we saw above, larceny prohibits property takings that are done without any consent at all on the part of the victim; extortion and fraud prohibit takings that are done pursuant to invalid consent; and embezzlement consists of takings done with consent to possession but not to the taking of title. What each of the offenses do have in common, however, is that the absence of consent, the denial of consent, the giving of invalid consent, and the giving of elsewhere-directed consent are appropriately treated as an element of the offense rather than as an affirmative defense. CONCLUSION Professor Fletcher is surely correct to assign consent a central role in his “grammar” of criminal law. No adequate analysis of the syntax or semantics of criminal law could be undertaken without considering the basic role that consent plays in defining offenses, delineating defenses, and describing the basic structure of criminal responsibility. Ultimately, however, the test of any grammar is its ability to predict the way a “language” is spoken and used in practice. What I have sought to

59 In this line of reasoning, I am in agreement with Vera Bergelson, who contends that lack of consent should function as an element in the offense of larceny. See Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 GEO. WASH. L. REV. (forthcoming, 2007) (manuscript at 50, on file with author).


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do here is to test Fletcher’s account of consent by applying it in the difficult and sometimes murky context of theft law.