As applied to battery
• The general rule is that consent is ordinarily a defense to the charge of battery in cases: (1) involving sexual overtones, (2) involving reasonably foreseeable and known hazards of lawful athletic contests or competitions, lawful sports or professions, or occupations, (3) where consent establishes justification for the serious harm, (4) involving reasonable corporal punishment by a teacher upon a pupil for disobedience and where reasonably necessary for the proper education and discipline of the pupil, and (5) where the battery is not atrocious, aggravated, or fatal and does not include a breach of the public peace.
See Govan v. State, 913 N.E.2d 237, 242 (Ind. Ct. App. 2009), trans. denied(citing Helton v. State, 624 N.E.2d 499, 514 n. 22 (Ind. Ct. App. 1993), trans. denied, cert. denied, 520 U.S. 1119 (1997))(“We noted the general rule, however, that consent is ordinarily a defense to the charge of battery in cases involving sexual overtones.”)
• However, our supreme court recently recognized exceptions to the general rule.
• Consent is not a defense to the charge of battery in these limited circumstances: (1) Where the defendant goes beyond acts consented to and beats to death the victim who consented only to the defendant’s execution of the organization’s initiation ritual of being struck in the stomach until he passed out; (2) Where it is against public policy to permit the conduct or resulting harm even though it is consented to, as where there are no sexual overtones and the battery is a severe one which involves a breach of the public peace, as well as, an invasion of the victim’s physical security; (3) Where consent is ineffective as where it is obtained by fraud or from one lacking legal capacity to consent; (4) Where a deadly weapon is employed; (5) Where death results; or, (6) Where the battery is atrocious or aggravated.
Govan v. State, 913 N.E.2d 237, 242 (Ind. Ct. App. 2009), trans. denied(citing Helton v. State, 624 N.E.2d 499, 514 (Ind. Ct. App. 1993), trans. denied, cert. denied, 520 U.S. 1119 (1997))(“We therefore held that consent is not a defense to battery in the following circumstances . . . .”)
• Although the Jaske court made the broad statement that “consent is not a defense to the charge of battery,” our supreme court did not hold that consent could never be a defense to the charge of battery. The rule in Jaske must be limited to its facts and the facts of the supporting cases cited therein. The Jaske rule that consent is no defense to the offense of battery is the exception, rather than the general rule. If our supreme court had held that defense could never be a defense to the charge of battery, it would have banned numerous legal activities, such as athletic contests, professions, and occupations involving invasions of one’s physical integrity. Obviously, the Jaske court did not intend its holding to reach such conduct.
Govan v. State, 913 N.E.2d 237, 242 (Ind. Ct. App. 2009), trans. denied(quoting Helton v. State, 624 N.E.2d 499, 514 (Ind. Ct. App. 1993), trans. denied, cert. denied, 520 U.S. 1119 (1997))(“As such, we held as follows . . . .”)
As applied to burglary and residential entry: In general
• In jurisdictions, such as Indiana, which retain the common law definition of burglary by requiring a breaking, there can be no breaking and therefore no burglary where the owner or other authorized person consents to entry, since a consensual entry is not an unlawful or illegal entry.
• A defendant’s reasonable belief that he had permission of the dwelling’s owner to enter is a defense to the charge of residential entry.
• A defendant’s belief that he has permission to enter must be reasonable in order for him to avail himself of the defense of consent.
As applied to burglary and residential entry: Authority to give consent
• [I]t is no defense to a burglary charge where defendant is given consent to enter by one having no authority to do so.
• In this case, defendant could not have reasonably believed that the adult, nonoccupant son had authority to consent to defendant’s entering of the parents’ residence for the purpose of stealing valuables which belonged to his parents. Therefore, defendant did not have authorized consent to enter the victim’s home.
• [A]ge alone is not an automatic barrier to authority to consent. Instead, courts should look to the totality of the circumstances to determine whether minors have the authority to give consent to another person to enter the house in which they live, such as the age, intelligence, and maturity of the minor, the scope of the consent to enter, and whether the minor had the right to invite the person to the house.
E.g., Holman v. State, 816 N.E.2d 78, 82 (Ind. Ct. App. 2004), trans. denied(“The evidence shows that although [the minor] was seventeen years old at the time, she knew that her parents disapproved of her relationship with [the defendant], who was currently evading authorities, and that he was not allowed to come over to their house. And on every occasion that [the minor] had [the defendant] over to her house, she did so surreptitiously without her parents’ knowledge or permission. Viewing the totality of the circumstances, we conclude that [the minor] did not have the authority to give consent to [the defendant] to enter the [minor’s] residence.”)
As applied to burglary and residential entry: Scope of consent
• [I]n jurisdictions which recognize consent to entry as a defense to burglary, consent may be limited in scope by the purpose of the consent.
E.g., Smith v. State, 477 N.E.2d 857, 863 (Ind. 1985)(“In the present case, defendant’s premise was consent to enter the victim’s home for the limited purpose of taking the victim’s guns, based upon an alleged insurance fraud scheme. However, the record shows that several articles were collected by defendant which were not guns. Therefore, even if defendant had authorized consent to enter the victim’s home, defendant had exceeded the scope of such consent.”)
As applied to burglary and residential entry: Raising the defense
• [T]he defendant has the burden of raising consent as a defense.
See McKinney v. State, 653 N.E.2d 115, 118 (Ind. Ct. App. 1995)(citing Lyles v. State, 576 N.E.2d 1344, 1348 (Ind. Ct. App. 1991), reh’g denied, trans. denied)(“[I]t is the defendant who must claim and prove the defense of consent.”)
As applied to burglary and residential entry: Overcoming the defense
• Once the defense is raised, the State has the burden of disproving the defense beyond a reasonable doubt.
As applied to rape and child molestation: In general
• Consent is a defense to rape.
• Consent is neither an element to be proved in a child molestation case nor a defense to such a charge. . . .
• For more information about consent as it pertains to rape, please review Rape.
As applied to rape and child molestation: Timeliness of consent
• [A]n honest and reasonable belief that a member of the opposite sex will consent to sexual conduct at some point in the future is not a defense to rape or criminal deviate conduct. The only consent that is a defense is the consent that immediately precedes the sexual conduct; it is the defendant’s honest and reasonable belief at that point in time, and not at any other point, that is relevant.
As applied to rape and child molestation: Relationship to the Rape Shield Rule
• Rule 412 permits evidence of the defendant’s past experience with the victim, but does not permit a defendant to base his defense of consent on the victim’s past sexual experiences with third persons.
See Conrad v. State, 938 N.E.2d 852, 855 (Ind. Ct. App. 2010)(quoting Williams v. State, 681 N.E.2d 195, 201 (Ind. 1997))(“While the Rule permits introduction of evidence of past sexual conduct with the accused, it ‘does not permit a defendant to base his defense of consent on the victim’s past sexual experiences with third persons.’”)
• For more information on Rule 412, please review Rape Shield.
As applied to homicide
• [C]onsent is not a defense to conduct causing another human being’s death.
• Thus, even if we assume for argument sake that through her actions and course of conduct [the victim] expressed a desire that [the defendant] kill her, her consent would not be a defense for [the defendant’s] actions.