3 - Consenting to Searches: What We Can Learn from Feminist Critiques of Sexual Assault Laws

Summary

The Supreme Court excuses a range of unwelcome searches, even strip searches, because the victim did not resist. Feminist critiques of rape law shed a bright spotlight onto the deficiencies in the Court’s analysis of consent to search. In 2018, New York State recognized that any sex with an on-duty officer is inherently coercive. Under the new law, police officers can’t argue consent when they’re accused of on-duty rape. Eliminating the consent defense for sex recognizes that police hold all the cards. That’s an excellent step, but then why should the law allow that officer to claim that the civilian consented to a search of her body or purse? The situations involve the same unfair power differential. In both situations, police have the power to let you go or charge you, what to charge and whether to be rough or gentle. Ultimately, civilians submit to police because it’s the safest thing to do. Consent within the Fourth Amendment suffers from the same legal myopia as consent within rape law. In both instances, courts often blame the victim for their fate as a way to support dominance by the group that holds power.