Originally Posted by GradGirl
Thank you, MSY-MSP. I found another interesting reference
the law of assault that shows what happened to me at that fateful BWI checkpoint meets the definition of unlawful penetration with force:
"Penetration is defined as "however slight". Merely putting a finger between the folds of skin over a vagina is penetration, and according to the intrinsic force standard, the act of penetration subsumes, or includes by inference, the act of force. " In my case it was an HHMD rather than a finger, but the definition fits exactly.
However, as you noted, MSY-MSP, the missing element here is consent or lack thereof. The only argument by which the TSA can possibly defend its practices as not constituting assault is the argument that passengers have consented to this degrading treatment. Implied consent is a misguided invention of the courts, and I look forward to the day when it will be rejected as a defense for abuse of passengers. Only explicit consent to the specific treatment intended, without the threat of LEO questioning and arrest for failing to comply, (though the threat of not being permitted to fly stands) should be valid.
The other important factor in your particular incident, GradGirl, is intent. If you think you can prove that the screener <i>intended</i> to touch you in that area with the wand, then you would perhaps have a case. But, if the touching was accidental, you would not have met the requisite intent.
I also have to disagree with you once again on the issue of implied consent. It is not "misguided". If you walk past a sign that says "ALL PASSENGERS PAST THIS POINT SUBJECT TO SEARCH," get in line for the WTMD, plop your bags down on the X-ray...there is no reason for TSA to have to ask you "May we x-ray your bags?" or "May we use this magnetometer to search your person for metallic objects?" You've implied your consent by your actions.
But the previous poster is also correct. Implied consent (or explicit consent for that matter) has limits. If the TSA asks you to take your pants off, it is reasonable to conclude that this is beyond the reach of the implied consent. The legal question then becomes less one of whether TSA can make you take your pants off, but one of whether TSA can deny your right to fly for not granting that consent. That's where we get into the sticky "right to travel" issues I'm researching.