Prosecutors should have to prove voluntariness in cases arising out of resistance to arrest. During an arrest, police violence—such as the use of pepper spray or police canines—may induce involuntary resistance. Such resistance may give rise to criminal charges. The actus reus element of criminal responsibility, however, provides that a person may only be held criminally responsible for voluntary conduct.

And yet, prosecutors are often not forced to prove voluntariness in resisting cases. Instead, as the case studies in this Article show, trial courts reject requests for voluntariness jury instructions, shift the burden to resisters to prove involuntariness, and—in some cases—disregard the voluntariness requirement altogether. This subversion matters because it wrongfully enables the criminalization of involuntary resisters.

Psychological and other scientific literature suggest that stressful events—like arrests—may evoke great fear. Such fear may be inborn, conditioned by violent and racially subordinating policing, or both. The more imminent a fearsome threat, the more likely one is to lose control over their response thereto. This loss of control significantly impairs one’s ability to refrain from resisting. Thus, during some arrests, the state may induce the resistance it punishes.

This Article contributes to the voluntariness-requirement scholarship by offering a normative theory for how the requirement should be applied in resisting cases. This Article calls for making voluntariness an explicit, essential element of resisting offenses. In doing so, this Article reveals a means by which fact finders may disrupt cycles of harm perpetuated by police violence and criminal punishment.

Continue reading Punishing Involuntary Resistance.