Consent Upon a Sure Foundation

Is lack of consent an element of burglary?  This post arises from a conversation I had with a colleague who asserted that the homeowner’s consent could legitimize an entry that would otherwise constitute a burglary.  Insofar as a defendant might introduce evidence at trial to establish a lawful entry, that’s certainly correct.  But does the State affirmatively have to allege and prove a lack of consent?  One of the nine common law felonies, burglary was defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein.  4 Bl. *224.  North Carolina statute divides the crime into degrees – it’s first-degree if the home is occupied – but otherwise retains the common law definition.  N.C.G.S. § 14-51.  Whatever the State might now have to prove at trial to obtain a conviction, the common law elements did not explicitly include a lack of consent.  This post explores the issue of consent in our criminal law and attempts to determine how consent operates to prove or disprove a burglary. Consent Generally: Three Categories of Crimes. In general, consent is a defense when it negates an element of the offense or precludes infliction of the harm that the law defining the offense sought to prevent.  Wayne R. LeFave, 1 Substantive Criminal Law § 6.5 (3rd ed. 2002).  Perkins proposes three categories of crimes: (1) those such as murder where the victim’s consent is immaterial to the defendant’s guilt, (2) those such as rape where the absence [...]