Law, Order, and the Consent Defense

[Excerpt] Among the benefits that we gain on leaving the state of nature and joining together in a civilized society is some amount of added protection of our individual possessions and person. Among our losses is the ability to plunder, at will, the possessions and bodies of those who are weaker than we are. These two statements are generally, but not absolutely, true. I propose that one hallmark of civilization is the security of everyone who lives under its authority that they are free from the unwanted interferences of others with their personal integrity and property rights.\u27 One way to gauge the proximity of my two opening statements to absolute truth, and thereby any society\u27s proximity to absolute civilization, is to examine the use of the consent defense in the criminal law. In this essay I will give a framework for examining the consent defense for this purpose. When we consider the consent defense, we typically think of it as occupying the border between individual liberty and governmental control. In the customary way that the criminal law is discussed and taught, as a control on individual conduct, this is a perfectly acceptable way to think of the consent defense. However, the criminal law can also be used as a means of controlling and oppressing groups. It is this type of control that makes a society more tribalistic and less democratic. And it is this type of control that is revealed on close examination of the consent defense