consent defense in Mississippi

2013See Phillipson, 943 So.2d at 672 (“The age of a minor is [a] complete bar to the legal exercise of consent to sexual intercourse.”); Collins, 691 So.2d at 924 (‘“[t]he child was under the age of consent, and it was not material whether the rape was accomplished by force or violence and against the will of the child.’ Consent is no defense to the charge.” (quoting McBride, 492 So.2d at 584) (emphasis added)); Brooks v. State, 242 So.2d 865, 867 (Miss.1971) (“It is immaterial whether the rape was accomplished by force or violence or against the will of the child, because she was under the age of

2009See Phillipson, 943 So. 2d at 672 (“The age of a minor is [a] complete bar to the legal exercise of consent to sexual intercourse.”); Collins, 691 So. 2d at 924 (“‘[t]he child was under the age of consent, and it was not material whether the rape was accomplished by force or violence and against the will of the child.’ Consent is no defense to the charge.” (quoting McBride, 492 So. 2d at 584 ) (emphasis added)); Brooks v. State, 242 So. 2d 865, 867 (Miss. 1971) (“It is immaterial whether the rape was accomplished by force or violence or against the will of the child, because she was under the

2013See Phillipson, 943 So.2d at 672 (“The age of a minor is [a] complete bar to the legal exercise of consent to sexual intercourse.”); Collins, 691 So.2d at 924 (‘“[t]he child was under the age of consent, and it was not material whether the rape was accomplished by force or violence and against the will of the child.’ Consent is no defense to the charge.” (quoting McBride, 492 So.2d at 584) (emphasis added)); Brooks v. State, 242 So.2d 865, 867 (Miss.1971) (“It is immaterial whether the rape was accomplished by force or violence or against the will of the child, because she was under the age of

2009See Phillipson, 943 So. 2d at 672 (“The age of a minor is [a] complete bar to the legal exercise of consent to sexual intercourse.”); Collins, 691 So. 2d at 924 (“‘[t]he child was under the age of consent, and it was not material whether the rape was accomplished by force or violence and against the will of the child.’ Consent is no defense to the charge.” (quoting McBride, 492 So. 2d at 584 ) (emphasis added)); Brooks v. State, 242 So. 2d 865, 867 (Miss. 1971) (“It is immaterial whether the rape was accomplished by force or violence or against the will of the child, because she was under the

2006With respect to the consent exception to the warrant requirement, this Court has established the following rule: "[i]n order for there to be a valid consent to a search not otherwise authorized by law, . . . the person searched [must] be aware he has the legal right to refuse." Penick v. State, 440 So.2d 547, 550 (Miss.1983) ( citing Smith v. State, 133 Miss. 730 , 98 So. 344, 345 (1923)). [2] Consent is valid only where a person knowingly and voluntarily waives the right not to be searched.

2006With respect to the consent exception to the warrant requirement, this Court has established the following rule: "[i]n order for there to be a valid consent to a search not otherwise authorized by law, . . . the person searched [must] be aware he has the legal right to refuse." Penick v. State, 440 So.2d 547, 550 (Miss.1983) ( citing Smith v. State, 133 Miss. 730 , 98 So. 344, 345 (1923)). [2] Consent is valid only where a person knowingly and voluntarily waives the right not to be searched.

2006With respect to the consent exception to the warrant requirement, this Court has established the following rule: "[i]n order for there to be a valid consent to a search not otherwise authorized by law, . . . the person searched [must] be aware he has the legal right to refuse." Penick v. State, 440 So.2d 547, 550 (Miss.1983) ( citing Smith v. State, 133 Miss. 730 , 98 So. 344, 345 (1923)). [2] Consent is valid only where a person knowingly and voluntarily waives the right not to be searched.

2005With respect to the consent exception to the warrant requirement, this Court has established the following rule: “[i]n order for there to be a valid consent to a search not otherwise authorized by law, . . . the person searched [must] be aware he has the legal right to refuse.” Pennick v. State, 440 So.2d 547, 550 (Miss. 1983) (citing Smith v. State, 98 So. 344, 345 (Miss. 1923)).2 Consent is valid only where a person knowingly and voluntarily waives the right not to be searched.

1998In affirming, the Indiana Supreme Court adopted the reasoning of the New Mexico Court of Appeals in State v. Fransua, 85 N.M. 173 , 510 P.2d 106, 107 (N.M.Ct.App. 1973), a similar case in which one man invited another to shoot him: Defendant asserts that the actions of the victim in procuring the weapon and inviting the defendant to shoot him constitutes consent to the shooting and as such is a good defense to the crime of aggravated battery.

1998In affirming, the Indiana Supreme Court adopted the reasoning of the New Mexico Court of Appeals in State v. Fransua, 85 N.M. 173 , 510 P.2d 106, 107 (N.M.Ct.App. 1973), a similar case in which one man invited another to shoot him: Defendant asserts that the actions of the victim in procuring the weapon and inviting the defendant to shoot him constitutes consent to the shooting and as such is a good defense to the crime of aggravated battery.

2017Ct. App. 1998) ; see Davis v. United States , 328 U.S. 582 , 593, 66 S.Ct. 1256 , 90 L.Ed. 1453 (1946).

2017Ct. App. 1998) ; see Davis v. United States , 328 U.S. 582 , 593, 66 S.Ct. 1256 , 90 L.Ed. 1453 (1946).

2012State v. Adefusika, 989 A.2d 467, 476-77 (R.I.2010) (finding that the trial court did not err in refusing to instruct the jury that the victim must have demonstrated lack of consent where the statute defined first-degree sexual assault as sexual penetration with the use of “force or coercion,” and the jury instruction had used the verb “overcomes,” which meant that the jury had to have found lack of consent) (citations omitted); United States v. Martin, 528 F.3d 746, 751-53 (10th Cir.2008) (finding that the district court did not err in refusing defendant’s proposed consent instruction because

2012Compare Martin, 528 F.3d at 752 (using this same reasoning as support for why a consent instruction was not required in a federal sexual-assault case).

2012State v. Adefusika, 989 A.2d 467, 476-77 (R.I.2010) (finding that the trial court did not err in refusing to instruct the jury that the victim must have demonstrated lack of consent where the statute defined first-degree sexual assault as sexual penetration with the use of “force or coercion,” and the jury instruction had used the verb “overcomes,” which meant that the jury had to have found lack of consent) (citations omitted); United States v. Martin, 528 F.3d 746, 751-53 (10th Cir.2008) (finding that the district court did not err in refusing defendant’s proposed consent instruction because

2012State v. Adefusika, 989 A.2d 467, 476-77 (R.I.2010) (finding that the trial court did not err in refusing to instruct the jury that the victim must have demonstrated lack of consent where the statute defined first-degree sexual assault as sexual penetration with the use of “force or coercion,” and the jury instruction had used the verb “overcomes,” which meant that the jury had to have found lack of consent) (citations omitted); United States v. Martin, 528 F.3d 746, 751-53 (10th Cir.2008) (finding that the district court did not err in refusing defendant’s proposed consent instruction because

2012State v. Koperski, 254 Neb. 624 , 578 N.W.2d 837, 839-47 (1998) (finding that an instruction on the substantive elements alone was insufficient); Mery v. Com., 12 Va.App. 821 , 407 S.E.2d 18, 21 (1991) (“inferential treatment of the principle of consent did not adequately instruct the jury on a subject that was both vital to [defendant’s] defense and sufficiently supported by the evidence to make it a jury issue[ ]”); State v. Suka, 70 Haw. 472 , 777 P.2d 240 , 243^4 (1989) (rejecting the argument that a consent instruction was unnecessary since the jury had been instructed on forcible consent

2012State v. Koperski, 254 Neb. 624 , 578 N.W.2d 837, 839-47 (1998) (finding that an instruction on the substantive elements alone was insufficient); Mery v. Com., 12 Va.App. 821 , 407 S.E.2d 18, 21 (1991) (“inferential treatment of the principle of consent did not adequately instruct the jury on a subject that was both vital to [defendant’s] defense and sufficiently supported by the evidence to make it a jury issue[ ]”); State v. Suka, 70 Haw. 472 , 777 P.2d 240 , 243^4 (1989) (rejecting the argument that a consent instruction was unnecessary since the jury had been instructed on forcible consent

2012State v. Adefusika, 989 A.2d 467, 476-77 (R.I.2010) (finding that the trial court did not err in refusing to instruct the jury that the victim must have demonstrated lack of consent where the statute defined first-degree sexual assault as sexual penetration with the use of “force or coercion,” and the jury instruction had used the verb “overcomes,” which meant that the jury had to have found lack of consent) (citations omitted); United States v. Martin, 528 F.3d 746, 751-53 (10th Cir.2008) (finding that the district court did not err in refusing defendant’s proposed consent instruction because

2012State v. Adefusika, 989 A.2d 467, 476-77 (R.I.2010) (finding that the trial court did not err in refusing to instruct the jury that the victim must have demonstrated lack of consent where the statute defined first-degree sexual assault as sexual penetration with the use of “force or coercion,” and the jury instruction had used the verb “overcomes,” which meant that the jury had to have found lack of consent) (citations omitted); United States v. Martin, 528 F.3d 746, 751-53 (10th Cir.2008) (finding that the district court did not err in refusing defendant’s proposed consent instruction because

2012Compare Cruz, 923 P.2d at 312 (setting forth the same considerations as support for why a trial court had not erred in refusing a consent instruction tendered by the defendant in a first-degree sexual-assault case). ¶ 44.

2012State v. Adefusika, 989 A.2d 467, 476-77 (R.I.2010) (finding that the trial court did not err in refusing to instruct the jury that the victim must have demonstrated lack of consent where the statute defined first-degree sexual assault as sexual penetration with the use of “force or coercion,” and the jury instruction had used the verb “overcomes,” which meant that the jury had to have found lack of consent) (citations omitted); United States v. Martin, 528 F.3d 746, 751-53 (10th Cir.2008) (finding that the district court did not err in refusing defendant’s proposed consent instruction because

2012State v. Koperski, 254 Neb. 624 , 578 N.W.2d 837, 839-47 (1998) (finding that an instruction on the substantive elements alone was insufficient); Mery v. Com., 12 Va.App. 821 , 407 S.E.2d 18, 21 (1991) (“inferential treatment of the principle of consent did not adequately instruct the jury on a subject that was both vital to [defendant’s] defense and sufficiently supported by the evidence to make it a jury issue[ ]”); State v. Suka, 70 Haw. 472 , 777 P.2d 240 , 243^4 (1989) (rejecting the argument that a consent instruction was unnecessary since the jury had been instructed on forcible consent

2012State v. Koperski, 254 Neb. 624 , 578 N.W.2d 837, 839-47 (1998) (finding that an instruction on the substantive elements alone was insufficient); Mery v. Com., 12 Va.App. 821 , 407 S.E.2d 18, 21 (1991) (“inferential treatment of the principle of consent did not adequately instruct the jury on a subject that was both vital to [defendant’s] defense and sufficiently supported by the evidence to make it a jury issue[ ]”); State v. Suka, 70 Haw. 472 , 777 P.2d 240 , 243^4 (1989) (rejecting the argument that a consent instruction was unnecessary since the jury had been instructed on forcible consent

2009See Phillipson, 943 So. 2d at 672 (“The age of a minor is [a] complete bar to the legal exercise of consent to sexual intercourse.”); Collins, 691 So. 2d at 924 (“‘[t]he child was under the age of consent, and it was not material whether the rape was accomplished by force or violence and against the will of the child.’ Consent is no defense to the charge.” (quoting McBride, 492 So. 2d at 584 ) (emphasis added)); Brooks v. State, 242 So. 2d 865, 867 (Miss. 1971) (“It is immaterial whether the rape was accomplished by force or violence or against the will of the child, because she was under the

2009See Phillipson, 943 So. 2d at 672 (“The age of a minor is [a] complete bar to the legal exercise of consent to sexual intercourse.”); Collins, 691 So. 2d at 924 (“‘[t]he child was under the age of consent, and it was not material whether the rape was accomplished by force or violence and against the will of the child.’ Consent is no defense to the charge.” (quoting McBride, 492 So. 2d at 584 ) (emphasis added)); Brooks v. State, 242 So. 2d 865, 867 (Miss. 1971) (“It is immaterial whether the rape was accomplished by force or violence or against the will of the child, because she was under the

2005Furthermore, the Mississippi Supreme Court has held that "[i]n an election, those who are indifferent to the election to the extent that they do not go and vote are not entitled to control the result of those who vote in the election, and the result is obtained by the majority who vote in the election and not by a majority of all the voters of the municipality." In re Validation of Municipal Bonds, 188 Miss. 817, 835 , 196 So. 258, 263 (1940).

2005Furthermore, the Mississippi Supreme Court has held that "[i]n an election, those who are indifferent to the election to the extent that they do not go and vote are not entitled to control the result of those who vote in the election, and the result is obtained by the majority who vote in the election and not by a majority of all the voters of the municipality." In re Validation of Municipal Bonds, 188 Miss. 817, 835 , 196 So. 258, 263 (1940).

1999Phillips v. Hull, 516 So.2d 488, 492 (Miss. 1987) (quoting P. Lasky, Consent to Medical and Surgical Procedures, in 11B HOSPITAL LAW MANUAL 1 (1986)).