Legal Commentary

any physical strike or instrumental contact with a person; any attempted physical strike or instrumental contact that does not take effect; or any significant physical contact that restricts the movement of a person. ? The term does not include escorting or handcuffing a person, with no or minimal resistance. [emphasis mine]

Under this definition, an ?ordinary? custodial arrest involves no use of force, even if the suspect is handcuffed and placed in the back of a police cruiser. He?s been subject to physical contact that restricts his movement, but unless he resists, no force has been used. Even minimal resistance is not enough; the arrestee must really fight back before the arrest is forceful.

This is not the only context in which force has been linked to resistance. Under the common law, the crime of rape was defined as ?the carnal knowledge of a woman forcibly and against her will.? Force and non-consent were two separate requirements, and to convict of rape, the state had to establish that the defendant used force. Many courts interpreted the force element as a resistance requirement: if the woman didn?t resist, the sex wasn?t forced and it wasn?t rape. One (in)famous opinion called resistance the ?sine qua non [of] the crime of rape,? and went on to explain that minimal resistance wouldn?t suffice for a conviction. Instead, the woman must give ?her utmost? resistance; ?there must be the most vehement exercise of every physical means or faculty within the woman?s power to resist the penetration of her person?.?

In the past few decades, many jurisdictions have abandoned formal force or resistance requirements as elements of rape. And rape reform advocates have urged that we view all nonconsensual sex as not just forced but violent, whether or not the victim fights back or winds up bloodied and bruised. It?s unclear whether these reform efforts have had substantial effects on actual rape convictions. But the old force-resistance link of rape law seems strikingly parallel to the force-resistance requirement in the above definition of police force. My own view is that the resistance requirement defines force too narrowly. In the context of policing and punishment, it leads us to forget what, in "Violence and the Word," Robert Cover urged readers to remember??that most prisoners walk into prison because they know they will be dragged or beaten into prison if they do not walk.? Like Cover, I ?do not wish us to pretend that we talk our prisoners into jail.?

[Cross-posted at Concurring Opinions.]

Full post as published by Balkinization on August 21, 2009 (boomark / email).