criminal law essay on consent

• Search Menu
• Sign in through your institution
• Browse content in Arts and Humanities
• Browse content in Archaeology
• Anglo-Saxon and Medieval Archaeology
• Archaeological Methodology and Techniques
• Archaeology by Region
• Archaeology of Religion
• Archaeology of Trade and Exchange
• Biblical Archaeology
• Contemporary and Public Archaeology
• Environmental Archaeology
• Historical Archaeology
• History and Theory of Archaeology
• Industrial Archaeology
• Landscape Archaeology
• Mortuary Archaeology
• Prehistoric Archaeology
• Underwater Archaeology
• Zooarchaeology
• Browse content in Architecture
• Architectural Structure and Design
• History of Architecture
• Residential and Domestic Buildings
• Theory of Architecture
• Browse content in Art
• Art Subjects and Themes
• History of Art
• Industrial and Commercial Art
• Theory of Art
• Biographical Studies
• Byzantine Studies
• Browse content in Classical Studies
• Classical Literature
• Classical Reception
• Classical History
• Classical Philosophy
• Classical Mythology
• Classical Art and Architecture
• Classical Oratory and Rhetoric
• Greek and Roman Papyrology
• Greek and Roman Archaeology
• Greek and Roman Epigraphy
• Greek and Roman Law
• Late Antiquity
• Religion in the Ancient World
• Digital Humanities
• Browse content in History
• Colonialism and Imperialism
• Diplomatic History
• Environmental History
• Genealogy, Heraldry, Names, and Honours
• Genocide and Ethnic Cleansing
• Historical Geography
• History by Period
• History of Emotions
• History of Agriculture
• History of Education
• History of Gender and Sexuality
• Industrial History
• Intellectual History
• International History
• Labour History
• Legal and Constitutional History
• Local and Family History
• Maritime History
• Military History
• National Liberation and Post-Colonialism
• Oral History
• Political History
• Public History
• Regional and National History
• Revolutions and Rebellions
• Slavery and Abolition of Slavery
• Social and Cultural History
• Theory, Methods, and Historiography
• Urban History
• World History
• Browse content in Language Teaching and Learning
• Language Learning (Specific Skills)
• Language Teaching Theory and Methods
• Browse content in Linguistics
• Applied Linguistics
• Cognitive Linguistics
• Computational Linguistics
• Forensic Linguistics
• Grammar, Syntax and Morphology
• Historical and Diachronic Linguistics
• History of English
• Language Evolution
• Language Reference
• Language Variation
• Language Families
• Language Acquisition
• Lexicography
• Linguistic Anthropology
• Linguistic Theories
• Linguistic Typology
• Phonetics and Phonology
• Psycholinguistics
• Sociolinguistics
• Translation and Interpretation
• Writing Systems
• Browse content in Literature
• Bibliography
• Children's Literature Studies
• Literary Studies (Romanticism)
• Literary Studies (American)
• Literary Studies (Modernism)
• Literary Studies (Asian)
• Literary Studies (European)
• Literary Studies (Eco-criticism)
• Literary Studies - World
• Literary Studies (1500 to 1800)
• Literary Studies (19th Century)
• Literary Studies (20th Century onwards)
• Literary Studies (African American Literature)
• Literary Studies (British and Irish)
• Literary Studies (Early and Medieval)
• Literary Studies (Fiction, Novelists, and Prose Writers)
• Literary Studies (Gender Studies)
• Literary Studies (Graphic Novels)
• Literary Studies (History of the Book)
• Literary Studies (Plays and Playwrights)
• Literary Studies (Poetry and Poets)
• Literary Studies (Postcolonial Literature)
• Literary Studies (Queer Studies)
• Literary Studies (Science Fiction)
• Literary Studies (Travel Literature)
• Literary Studies (War Literature)
• Literary Studies (Women's Writing)
• Literary Theory and Cultural Studies
• Mythology and Folklore
• Shakespeare Studies and Criticism
• Browse content in Media Studies
• Browse content in Music
• Applied Music
• Dance and Music
• Ethics in Music
• Ethnomusicology
• Gender and Sexuality in Music
• Medicine and Music
• Music Cultures
• Music and Media
• Music and Culture
• Music and Religion
• Music Education and Pedagogy
• Music Theory and Analysis
• Musical Scores, Lyrics, and Libretti
• Musical Structures, Styles, and Techniques
• Musicology and Music History
• Performance Practice and Studies
• Race and Ethnicity in Music
• Sound Studies
• Browse content in Performing Arts
• Browse content in Philosophy
• Aesthetics and Philosophy of Art
• Epistemology
• Feminist Philosophy
• History of Western Philosophy
• Metaphysics
• Moral Philosophy
• Non-Western Philosophy
• Philosophy of Language
• Philosophy of Mind
• Philosophy of Perception
• Philosophy of Action
• Philosophy of Law
• Philosophy of Religion
• Philosophy of Science
• Philosophy of Mathematics and Logic
• Practical Ethics
• Social and Political Philosophy
• Browse content in Religion
• Biblical Studies
• Christianity
• East Asian Religions
• History of Religion
• Judaism and Jewish Studies
• Qumran Studies
• Religion and Education
• Religion and Health
• Religion and Politics
• Religion and Science
• Religion and Law
• Religion and Art, Literature, and Music
• Religious Studies
• Browse content in Society and Culture
• Cookery, Food, and Drink
• Cultural Studies
• Customs and Traditions
• Ethical Issues and Debates
• Hobbies, Games, Arts and Crafts
• Natural world, Country Life, and Pets
• Popular Beliefs and Controversial Knowledge
• Sports and Outdoor Recreation
• Technology and Society
• Travel and Holiday
• Visual Culture
• Browse content in Law
• Arbitration
• Browse content in Company and Commercial Law
• Commercial Law
• Company Law
• Browse content in Comparative Law
• Systems of Law
• Competition Law
• Browse content in Constitutional and Administrative Law
• Government Powers
• Judicial Review
• Local Government Law
• Military and Defence Law
• Parliamentary and Legislative Practice
• Construction Law
• Contract Law
• Browse content in Criminal Law
• Criminal Procedure
• Criminal Evidence Law
• Sentencing and Punishment
• Employment and Labour Law
• Environment and Energy Law
• Browse content in Financial Law
• Banking Law
• Insolvency Law
• History of Law
• Human Rights and Immigration
• Intellectual Property Law
• Browse content in International Law
• Private International Law and Conflict of Laws
• Public International Law
• IT and Communications Law
• Jurisprudence and Philosophy of Law
• Law and Society
• Law and Politics
• Browse content in Legal System and Practice
• Courts and Procedure
• Legal Skills and Practice
• Primary Sources of Law
• Regulation of Legal Profession
• Medical and Healthcare Law
• Browse content in Policing
• Criminal Investigation and Detection
• Police and Security Services
• Police Procedure and Law
• Police Regional Planning
• Browse content in Property Law
• Personal Property Law
• Study and Revision
• Terrorism and National Security Law
• Browse content in Trusts Law
• Wills and Probate or Succession
• Browse content in Medicine and Health
• Browse content in Allied Health Professions
• Arts Therapies
• Clinical Science
• Dietetics and Nutrition
• Occupational Therapy
• Operating Department Practice
• Physiotherapy
• Radiography
• Speech and Language Therapy
• Browse content in Anaesthetics
• General Anaesthesia
• Neuroanaesthesia
• Clinical Neuroscience
• Browse content in Clinical Medicine
• Acute Medicine
• Cardiovascular Medicine
• Clinical Genetics
• Clinical Pharmacology and Therapeutics
• Dermatology
• Endocrinology and Diabetes
• Gastroenterology
• Genito-urinary Medicine
• Geriatric Medicine
• Infectious Diseases
• Medical Toxicology
• Medical Oncology
• Pain Medicine
• Palliative Medicine
• Rehabilitation Medicine
• Respiratory Medicine and Pulmonology
• Rheumatology
• Sleep Medicine
• Sports and Exercise Medicine
• Community Medical Services
• Critical Care
• Emergency Medicine
• Forensic Medicine
• Haematology
• History of Medicine
• Browse content in Medical Skills
• Clinical Skills
• Communication Skills
• Nursing Skills
• Surgical Skills
• Medical Ethics
• Browse content in Medical Dentistry
• Oral and Maxillofacial Surgery
• Paediatric Dentistry
• Restorative Dentistry and Orthodontics
• Surgical Dentistry
• Medical Statistics and Methodology
• Browse content in Neurology
• Clinical Neurophysiology
• Neuropathology
• Nursing Studies
• Browse content in Obstetrics and Gynaecology
• Gynaecology
• Occupational Medicine
• Ophthalmology
• Otolaryngology (ENT)
• Browse content in Paediatrics
• Neonatology
• Browse content in Pathology
• Chemical Pathology
• Clinical Cytogenetics and Molecular Genetics
• Histopathology
• Medical Microbiology and Virology
• Patient Education and Information
• Browse content in Pharmacology
• Psychopharmacology
• Browse content in Popular Health
• Caring for Others
• Complementary and Alternative Medicine
• Self-help and Personal Development
• Browse content in Preclinical Medicine
• Cell Biology
• Molecular Biology and Genetics
• Reproduction, Growth and Development
• Primary Care
• Professional Development in Medicine
• Browse content in Psychiatry
• Addiction Medicine
• Child and Adolescent Psychiatry
• Forensic Psychiatry
• Learning Disabilities
• Old Age Psychiatry
• Psychotherapy
• Browse content in Public Health and Epidemiology
• Epidemiology
• Public Health
• Browse content in Radiology
• Clinical Radiology
• Interventional Radiology
• Nuclear Medicine
• Radiation Oncology
• Reproductive Medicine
• Browse content in Surgery
• Cardiothoracic Surgery
• Gastro-intestinal and Colorectal Surgery
• General Surgery
• Neurosurgery
• Paediatric Surgery
• Peri-operative Care
• Plastic and Reconstructive Surgery
• Surgical Oncology
• Transplant Surgery
• Trauma and Orthopaedic Surgery
• Vascular Surgery
• Browse content in Science and Mathematics
• Browse content in Biological Sciences
• Aquatic Biology
• Biochemistry
• Bioinformatics and Computational Biology
• Developmental Biology
• Ecology and Conservation
• Evolutionary Biology
• Genetics and Genomics
• Microbiology
• Molecular and Cell Biology
• Natural History
• Plant Sciences and Forestry
• Research Methods in Life Sciences
• Structural Biology
• Systems Biology
• Zoology and Animal Sciences
• Browse content in Chemistry
• Analytical Chemistry
• Computational Chemistry
• Crystallography
• Environmental Chemistry
• Industrial Chemistry
• Inorganic Chemistry
• Materials Chemistry
• Medicinal Chemistry
• Mineralogy and Gems
• Organic Chemistry
• Physical Chemistry
• Polymer Chemistry
• Study and Communication Skills in Chemistry
• Theoretical Chemistry
• Browse content in Computer Science
• Artificial Intelligence
• Computer Architecture and Logic Design
• Game Studies
• Human-Computer Interaction
• Mathematical Theory of Computation
• Programming Languages
• Software Engineering
• Systems Analysis and Design
• Virtual Reality
• Browse content in Computing
• Business Applications
• Computer Games
• Computer Security
• Computer Networking and Communications
• Digital Lifestyle
• Graphical and Digital Media Applications
• Operating Systems
• Browse content in Earth Sciences and Geography
• Atmospheric Sciences
• Environmental Geography
• Geology and the Lithosphere
• Maps and Map-making
• Meteorology and Climatology
• Oceanography and Hydrology
• Palaeontology
• Physical Geography and Topography
• Regional Geography
• Soil Science
• Urban Geography
• Browse content in Engineering and Technology
• Agriculture and Farming
• Biological Engineering
• Civil Engineering, Surveying, and Building
• Electronics and Communications Engineering
• Energy Technology
• Engineering (General)
• Environmental Science, Engineering, and Technology
• History of Engineering and Technology
• Mechanical Engineering and Materials
• Technology of Industrial Chemistry
• Transport Technology and Trades
• Browse content in Environmental Science
• Applied Ecology (Environmental Science)
• Conservation of the Environment (Environmental Science)
• Environmental Sustainability
• Environmentalist Thought and Ideology (Environmental Science)
• Management of Land and Natural Resources (Environmental Science)
• Natural Disasters (Environmental Science)
• Nuclear Issues (Environmental Science)
• Pollution and Threats to the Environment (Environmental Science)
• Social Impact of Environmental Issues (Environmental Science)
• History of Science and Technology
• Browse content in Materials Science
• Ceramics and Glasses
• Composite Materials
• Metals, Alloying, and Corrosion
• Nanotechnology
• Browse content in Mathematics
• Applied Mathematics
• Biomathematics and Statistics
• History of Mathematics
• Mathematical Education
• Mathematical Finance
• Mathematical Analysis
• Numerical and Computational Mathematics
• Probability and Statistics
• Pure Mathematics
• Browse content in Neuroscience
• Cognition and Behavioural Neuroscience
• Development of the Nervous System
• Disorders of the Nervous System
• History of Neuroscience
• Invertebrate Neurobiology
• Molecular and Cellular Systems
• Neuroendocrinology and Autonomic Nervous System
• Neuroscientific Techniques
• Sensory and Motor Systems
• Browse content in Physics
• Astronomy and Astrophysics
• Atomic, Molecular, and Optical Physics
• Biological and Medical Physics
• Classical Mechanics
• Computational Physics
• Condensed Matter Physics
• Electromagnetism, Optics, and Acoustics
• History of Physics
• Mathematical and Statistical Physics
• Measurement Science
• Nuclear Physics
• Particles and Fields
• Plasma Physics
• Quantum Physics
• Relativity and Gravitation
• Semiconductor and Mesoscopic Physics
• Browse content in Psychology
• Affective Sciences
• Clinical Psychology
• Cognitive Psychology
• Cognitive Neuroscience
• Criminal and Forensic Psychology
• Developmental Psychology
• Educational Psychology
• Evolutionary Psychology
• Health Psychology
• History and Systems in Psychology
• Music Psychology
• Neuropsychology
• Organizational Psychology
• Psychological Assessment and Testing
• Psychology of Human-Technology Interaction
• Psychology Professional Development and Training
• Research Methods in Psychology
• Social Psychology
• Browse content in Social Sciences
• Browse content in Anthropology
• Anthropology of Religion
• Human Evolution
• Medical Anthropology
• Physical Anthropology
• Regional Anthropology
• Social and Cultural Anthropology
• Theory and Practice of Anthropology
• Browse content in Business and Management
• Business Ethics
• Business History
• Business Strategy
• Business and Technology
• Business and Government
• Business and the Environment
• Comparative Management
• Corporate Governance
• Corporate Social Responsibility
• Entrepreneurship
• Health Management
• Human Resource Management
• Industrial and Employment Relations
• Industry Studies
• Information and Communication Technologies
• International Business
• Knowledge Management
• Management and Management Techniques
• Operations Management
• Organizational Theory and Behaviour
• Pensions and Pension Management
• Public and Nonprofit Management
• Strategic Management
• Supply Chain Management
• Browse content in Criminology and Criminal Justice
• Criminal Justice
• Criminology
• Forms of Crime
• International and Comparative Criminology
• Youth Violence and Juvenile Justice
• Development Studies
• Browse content in Economics
• Agricultural, Environmental, and Natural Resource Economics
• Asian Economics
• Behavioural Finance
• Behavioural Economics and Neuroeconomics
• Econometrics and Mathematical Economics
• Economic History
• Economic Methodology
• Economic Systems
• Economic Development and Growth
• Financial Markets
• Financial Institutions and Services
• General Economics and Teaching
• Health, Education, and Welfare
• History of Economic Thought
• International Economics
• Labour and Demographic Economics
• Law and Economics
• Macroeconomics and Monetary Economics
• Microeconomics
• Public Economics
• Urban, Rural, and Regional Economics
• Welfare Economics
• Browse content in Education
• Adult Education and Continuous Learning
• Care and Counselling of Students
• Early Childhood and Elementary Education
• Educational Equipment and Technology
• Educational Strategies and Policy
• Higher and Further Education
• Organization and Management of Education
• Philosophy and Theory of Education
• Schools Studies
• Secondary Education
• Teaching of a Specific Subject
• Teaching of Specific Groups and Special Educational Needs
• Teaching Skills and Techniques
• Browse content in Environment
• Applied Ecology (Social Science)
• Climate Change
• Conservation of the Environment (Social Science)
• Environmentalist Thought and Ideology (Social Science)
• Natural Disasters (Environment)
• Social Impact of Environmental Issues (Social Science)
• Browse content in Human Geography
• Cultural Geography
• Economic Geography
• Political Geography
• Browse content in Interdisciplinary Studies
• Communication Studies
• Museums, Libraries, and Information Sciences
• Browse content in Politics
• African Politics
• Asian Politics
• Chinese Politics
• Comparative Politics
• Conflict Politics
• Elections and Electoral Studies
• Environmental Politics
• Ethnic Politics
• European Union
• Foreign Policy
• Gender and Politics
• Human Rights and Politics
• Indian Politics
• International Relations
• International Organization (Politics)
• International Political Economy
• Irish Politics
• Latin American Politics
• Middle Eastern Politics
• Political Behaviour
• Political Economy
• Political Institutions
• Political Theory
• Political Methodology
• Political Communication
• Political Philosophy
• Political Sociology
• Politics and Law
• Politics of Development
• Public Policy
• Public Administration
• Quantitative Political Methodology
• Regional Political Studies
• Russian Politics
• Security Studies
• State and Local Government
• UK Politics
• US Politics
• Browse content in Regional and Area Studies
• African Studies
• Asian Studies
• East Asian Studies
• Japanese Studies
• Latin American Studies
• Middle Eastern Studies
• Native American Studies
• Scottish Studies
• Browse content in Research and Information
• Research Methods
• Browse content in Social Work
• Addictions and Substance Misuse
• Adoption and Fostering
• Care of the Elderly
• Child and Adolescent Social Work
• Couple and Family Social Work
• Direct Practice and Clinical Social Work
• Emergency Services
• Human Behaviour and the Social Environment
• International and Global Issues in Social Work
• Mental and Behavioural Health
• Social Justice and Human Rights
• Social Policy and Advocacy
• Social Work and Crime and Justice
• Social Work Macro Practice
• Social Work Practice Settings
• Social Work Research and Evidence-based Practice
• Welfare and Benefit Systems
• Browse content in Sociology
• Childhood Studies
• Community Development
• Comparative and Historical Sociology
• Economic Sociology
• Gender and Sexuality
• Gerontology and Ageing
• Health, Illness, and Medicine
• Marriage and the Family
• Migration Studies
• Occupations, Professions, and Work
• Organizations
• Population and Demography
• Race and Ethnicity
• Social Theory
• Social Movements and Social Change
• Social Research and Statistics
• Social Stratification, Inequality, and Mobility
• Sociology of Religion
• Sociology of Education
• Sport and Leisure
• Urban and Rural Studies
• Browse content in Warfare and Defence
• Defence Strategy, Planning, and Research
• Land Forces and Warfare
• Military Administration
• Military Life and Institutions
• Naval Forces and Warfare
• Other Warfare and Defence Issues
• Peace Studies and Conflict Resolution
• Weapons and Equipment

• < Previous chapter
• Next chapter >

28 The Defense of Consent

Rutgers School of Law–Newark

• Published: 04 March 2015
• Cite Icon Cite
• Permissions Icon Permissions

This chapter examines the doctrine of consent in criminal law and the debates surrounding its meaning and boundaries. The defense of consent is reviewed in its relation to the goals and justification of punishment. The chapter outlines the requirements for valid consent and exposes the controversies associated with those requirements. The chapter gives special consideration to the issue of consent to serious physical harm and analyzes the rationales for disallowing such consent; among those are: breach of peace, susceptibility to becoming public charge, immorality, violation of dignity, and disrespect for law and social order. Finally, the chapter proposes a new set of requirements for the defense of consent that would lead to more fair, consistent, and morally sustainable criminal adjudication.

I. Introduction to the Defense of Consent

The concept of consent is central to many areas of law. In criminal law, consent of the victim may exonerate the perpetrator charged with an offense that involves intrusive, harmful, or offensive conduct with respect to that victim. That may happen in two sets of circumstances: one, when consent of the victim negatives an element of the offense, and two, when it prevents the infliction of the harm or evil which the criminal statute seeks to prevent. 1 In the first case, consent leads to the failure of proof defeating the charges of such offenses as rape, theft, or kidnapping. In the second case, consent serves as an affirmative defense to what would otherwise be a criminal act. For example, consent to a boxing match may shield its participants from criminal liability for assault and battery.

Some jurisdictions explicitly recognize the general defense of consent by their statutes whereas other jurisdictions have incorporated the concept of consent in the Special Part of their penal codes, making non-consent an element of an offense or providing for the defense of consent with respect to specific crimes. Where the statute does not explicitly mention consent, case law usually explains in what circumstances the consent of the victim may function as a defense. 2

In recent years, the question of the role of consent in criminal law has moved to the forefront of public, legislative, and academic debates in a number of countries due to a series of high-profile criminal trials, which involved consenting victims in various contexts—from sadomasochism (e.g. R. v. Brown ) 3 and cannibalism (the case of Armin Meiwes) 4 to experimental medical treatment (e.g. People v. Brown ), 5 and mercy killing (e.g. People v. Kevorkian ). 6 In all those cases, courts disregarded the consent of the victims and convicted the defendants. Those decisions exposed the need to develop consistent rules of consent. For example, R. v. Brown , in the words of Law Commission for England and Wales, “cast fresh light on the unprincipled way in which [the rules of consent] had developed, and revealed considerable disagreement about the basis and policy of the present law, its detailed limits and its scope for future development.” 7 This chapter has its goal in reviewing the current law and doctrine of consent and proposing some changes to both.

II. What Is Consent?

Few doctrines of criminal law involve as many controversies as the doctrine of consent—starting with the very basic question: what is consent ? Is it one’s inner thoughts (attitudinal consent) or one’s act, manifestation of acquiescence (expressive or performative consent)? For example, in a prosecution for rape, what should determine the defendant’s guilt or innocence—the victim’s state of mind or the victim’s actions and words?

Advocates of the attitudinal approach usually argue that criminal law should rely on the parties’ true feelings because those feelings determine whether or not the victim has been wronged. How can we say that a person was raped if that person tacitly welcomed the sexual act? Consent, they maintain, is like belief; and belief may be present or absent regardless of its expression. This understanding of consent is reflected, for example, in the definition of sexual assault adopted by the Canadian Criminal Code. “In making it an offense for a person to have sexual intercourse with another without the latter’s ‘consent,’ the Canadian Parliament defines consent as a choice the latter person subjectively experiences—as opposed to a choice she objectively manifests.” 8

The adherents of the expressive theory of consent disagree. In their view, consent is an act, not a belief. It is like “I do” in the exchange of marital vows. For them, consent does not describe the state of events but rather creates a new normative reality: patients may not give physicians consent to surgery without communicating their acquiescence. In the same sense, consent to a sexual act must be explicit, and not merely mental, in order to negate a charge of rape. This view has been incorporated into the definition of rape included in the Crimes Act adopted in Victoria, Australia. 9

The difference between the two theories of consent has deep roots and essentially stems from the understanding of the goals and justification of punishment. The attitudivists focus on the wrongful harm to the victim and put the burden on the state. For them, criminal law is largely driven by the goal of protecting people’s autonomy. The state is justified in employing the harshest and most intrusive powers against an individual by the overarching need to enforce the rights and obligations of all members of society. Consent involves changing the balance of those rights and corresponding obligations. So, if a rational and responsible putative victim B mentally gave his free and voluntary approval (even without expressing it) to A’s act, then B was not wronged. B was not wronged, even if he was objectively harmed, that is, his interests were set back (say, upon B’s request, A destroyed B’s valuable stamp collection). And if the putative victim was not wronged, the perpetrator did not commit the crime charged. 10

In contrast, the performativists focus not on the victim but on the perpetrator, and ultimately on society at large. For them, consent is relevant mainly because it changes the perpetrator’s reasons for action, in other words, for them the essence of the crime is not the violation of the rights of an individual victim but the perpetrator’s moral/social transgression. Regardless of the victim’s idiosyncratic choices, we, all of us , are harmed when the perpetrator acts for a wrong reason. Thus, in a prosecution for rape it is unimportant that the victim tacitly welcomed the sexual act. The defendant was not aware of the victim’s inner thoughts and acted, at a minimum, with reckless disregard for the victim’s autonomy. He is, therefore, subjectively culpable (wrong), and is as dangerous and deserving of punishment as any other perpetrator who was not so atypically lucky with respect to his victim’s feelings.

In recent years, there has been a distinct trend in favor of the performativist model of consent, particularly in the area of sexual crimes. Many jurisdictions worldwide have revised their laws to define consent as an explicit affirmative permission given by words or actions.

III. The Requirements of Valid Consent

To be valid, consent must be rational and voluntary, that is, freely given by a person legally competent to give consent and informed. Certain groups of people (e.g. children, mentally ill, intoxicated), in most instances, are deemed incapable of granting valid consent. Consent obtained by duress or fraud regarding the nature of the perpetrator’s act is void ab initio . 11 Consent must be present and continuous; once given but later revoked consent is invalid. Finally, in many jurisdictions, consent to harmful conduct is deemed valid only to the extent that such conduct or harm does not violate public policy or good morals.

1. Legal competence

The requirement of legal competence is relatively uncontroversial and easier to classify legislatively than the other requirements. However, even that requirement raises questions of the degree of one’s competence. Those questions often arise when the victim is mildly to moderately mentally retarded or when the victim has given consent while under the influence of drugs or alcohol. 12 Most states in the United States disregard the victim’s consent if the victim has been significantly incapacitated by drugs or alcohol given to the victim by the defendant. However, many U.S. rape statutes do not impose liability if the victim was in an incapacitated condition short of complete unconsciousness due to someone else’s actions. In the United Kingdom, too, “drunken consent is still consent.” The court in R. v. Bree held that this phrase “provides useful shorthand accurately encapsulating the legal position according to which a person who is very drunk is capable of consenting and when someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing, consenting.” 13 That position has been sharply criticized. One scholar has argued that, “As a matter of normative fact, one which is based on empirical and medical research, a drunken consent should not be recognised as legal consent.” In her view, in order to establish whether consent should be recognized, “two questions need to be asked: (1) was the victim drunk so as to make her incapable of giving a valid consent? If so, then (2) did she consent to sex before getting drunk? If no such consent was given, then it should be concluded that no consent to sex was given in accordance with [the law].” 14

Another set of questions involving legal competence has been raised in connection with the age of consent. Currently, most countries specify it as a fixed age, which may be as low as 13 (e.g. in Japan or Spain) or as high as 20 (Tunisia) but is most commonly set between 16 and 18 (e.g. the United States). An argument has been made that the law needs to take into account the realities of sexual interactions among teenagers and shield them from criminal punishment for consensual sex. 15

The story of an American teenager Genarlaw Wilson has been often cited as an illustration of the harshness of the existing laws regulating sexual behavior of minors: the young man was given a mandatory ten-year sentence for having had consensual oral sex with a 15-year-old girl when he was 17. Wilson’s sentence was eventually changed from a felony to a misdemeanor and he was released from prison but not before he had already served two years of his sentence. 16

Some jurisdictions have addressed the issue by providing that sexual conduct with a minor is not to be punished if the partners are of similar age and development. For example, the age of consent in Finland is 16, but the law states that, even beyond that, the act will not be punished if “there is no great difference in the ages or the mental and physical maturity of the persons involved.” 17

2. Free, rational, and informed consent

The circumstances under which consent is given must be free of force, duress, or deception. This requirement has had a more contentious history, particularly in connection with allegations of rape and sexual assault. The major question in this regard has been how to define force. The diverging interpretations have ranged from viewing force as “physical compulsion necessary to overcome the resistance of the victim” 18 to any compulsion, including “physical, intellectual, moral or psychological.” 19

b) Rationality and voluntariness

From time to time, courts have refused to recognize the validity of consent, arguing that it must have been irrational or involuntary, even in the absence of direct compulsion. In People v. Samuels , for example, the defendant was convicted of aggravated assault for whipping an apparently willing victim in the course of the production of a pornographic movie. The case was complicated by the fact that the victim could not be found to confirm his consent. However, the court dismissed the very possibility of such consent, saying: “It is a matter of common knowledge that a normal person in full possession of his mental faculties does not freely consent to the use, upon himself, of force likely to produce great bodily injury.” 20 The Samuels ’s logic is a disturbing example of circular reasoning: according to this court, a person who consents to X is insane because one has to be insane to consent to X. After the victim’s insanity is thus established, the conviction follows automatically because the consent of an insane person is invalid.

Similarly, courts often distrust the rationality and voluntariness of the victim’s choice when they disprove of the consented to activity. In the British case of R. v. Brown , the defendants were members of a gay sadomasochistic club. Among the articulated reasons for their conviction was that the court perceived the consent of the masochists in the group as “dubious or worthless,” suggesting that those individuals were younger than the men on the sadist side and psychologically vulnerable. 21

Yet the most serious debates about the rationality and voluntariness of consent arise in connection with assisted suicide and mercy killings. It is well documented that those who attempt suicide usually suffer from depression or other mental disorders. Frequently people feel particularly vulnerable due to constant pain, and this vulnerability may be exploited by others.

Most penal laws proscribe euthanasia and assisted suicide. Voluntary euthanasia is currently legal only in the Netherlands, Belgium, and Luxembourg. Assisted suicide is legal in Switzerland and (in a very narrow form) in the U.S. states of Washington, Oregon, Vermont, and Montana. In most countries, however, a person who helps another to die or who actually does the killing is subject to criminal prosecution for homicide and the consent of the dying person is not recognized as a defense in such prosecution.

Those who support the current law maintain that the “difficulty in defining terminal illness and the risk that a dying patient’s request for assistance in ending his or her life might not be truly voluntary justifies the prohibitions on assisted suicide.” 22 Others, however, argue that when the reason for a criminal ban lies in an uncertainty regarding the validity (voluntariness and rationality) of an individual’s consent, the law should be directed at those uncertainties by demanding persuasive proof of the valid consent and not by taking away the power to give it. 23

Finally, courts have struggled with drawing the line between consent obtained by morally reprehensible but non-criminal psychological pressure or untruthfulness, on the one hand, and punishable threats or deception, on the other.

All legal systems provide that fraud regarding the fact itself (fraud in the factum) vitiates consent; however, in most legal systems, consent is valid if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement). 24

In the U.S. case of Boro v. Superior Court , the male defendant lied to the female victim that she had a life-threatening disease which could be cured by having sexual intercourse with a donor who had been injected with a “serum.” The defendant pretended to be such a donor and the victim consented under the mistaken belief that otherwise she would die. 25 The defendant was prosecuted on several charges, including rape. That charge failed, however, as the court held that fraud in the inducement did not vitiate consent. The court characterized the defendant’s lies as fraud in the inducement because the deception related not to the nature of the sexual intercourse but merely to the incentive for having that intercourse.

A different rule, such that invalidates consent in cases of any fraud, including fraud in the inducement, has been adopted in Israel. In 2008, the High Court of Justice set a precedent on “rape by deception” when it upheld the rape conviction of a defendant who had been impersonating a senior government official and who had been promising women apartments and increased social security payments in exchange for sex. 26 The precedent was affirmed two years later in the case of a Palestinian man who had lied about his ethnic/religious background and marital status in order to have sex with a young Jewish woman. 27

Some jurisdictions choose an intermediate approach and recognize fraud in the inducement in narrowly defined circumstances. For example, in the aftermath of Boro , California revised its Penal Code, and today sexual intercourse is qualified as rape if the perpetrator has obtained the victim’s consent through the “fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.” 28

3. Duration of consent

Suppose a person has waived certain rights by issuing valid consent, should that consent remain valid until the action to which he consented is completed? This question implies two separate inquiries—one dealing with the validity of remote consent, and the other with the revocability of consent.

The first inquiry literally acquires life-and-death dimensions when it comes up in connection with decisions recorded in living wills. Standard forms of living wills are either silent on duration or explicitly provide for unlimited duration. Like wills of property, they become operative at some indefinite time in the future, thus the problem of remote consent is built into the very structure of a living will. As Kenney Hegland phrased it, the “root problem, the unsolvable problem, is that living wills are written long before they come into play: We are asked to decide now what we want then, and we don’t have much of a clue. The stuff of a Greek tragedy.” 29

Indeed, a 30-year-old person signs a living will requesting to be allowed to die if he should ever be in a certain medical condition. At the age of 60, he suffers a stroke and finds himself in that exact condition, no longer capable of signing a new consent form. In the intervening 30 years, many things have changed, starting with the man himself and ending with medical prospects and methods of care for bedridden patients. Should his living will still be respected? Should the doctor who respected that will and refused to treat the patient with a simple antibiotic despite the pleas of the patient’s family be prosecuted? If so, should the doctor be allowed to raise the defense of consent even though that consent was given 30 years earlier?

Many have argued that the terms of a living will should be respected even in these difficult circumstances: “In virtue of the extended temporal bounds of de jure sovereignty…, a competent autonomous person may consent for his future as well as his present self.” 30 This argument is persuasive. After all, prospective autonomy is well established in various areas of law. For example, if a competent person agreed to undergo surgery, his consent would remain valid while he is under general anesthesia the next day. The same would be true if the surgery were to take place in a week or a month. “Unless there were some material reasons to think that the patient had altered his or her decision, the initial, competently made instruction would govern.” 31

The view that remote consent should be valid is not uniformly held, however. Consider a recent Canadian case, R. v. J.A. , in which a couple had been experimenting with erotic asphyxiation. One night “J.A. placed his hands around the throat of his long-term partner K.D. and choked her until she was unconscious.” 32 He then proceeded to engage in various sexual acts. Two months later K.D. made a complaint to the police and stated that while she had consented to the choking, she had not consented to the sexual activity that followed. She later recanted her allegation, saying that she had made the complaint because J.A. had threatened to seek sole custody of their young son.

Nevertheless, J.A. was convicted of sexual assault; the appellate court reversed the conviction and the case reached the Supreme Court of Canada on the issue “whether a person can perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious.” The majority affirmed the conviction stating that the Canadian Criminal Code protects the right of an individual “to consent to particular acts and to revoke her consent at any time,” and does not allow individuals to consent to sex if they are not conscious.

The dissenting opinion, however, pointed out the far-reaching implications of such a rule, saying: “Notably, it would criminalize kissing or caressing a sleeping partner, however gently and affectionately. Prior consent, or even an explicit request—‘kiss me before you leave for work’—would not spare the accused from conviction.”

It appears that, in this decision, the Supreme Court of Canada had to choose between a person’s future and present abilities to make autonomous decisions—and preferred the latter. To support this choice, the Supreme Court relied on the statutory definition of consent which “does not extend to advance consent to sexual acts committed while the complainant is unconscious.” According to the majority, the legislation required “ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.” As important as this objective is, the decision raises the question of permissible boundaries of state paternalism with respect to rational adult individuals: if a person desires temporarily to suspend his right to contemporaneous control over his body, what gives the state the authority to override his autonomy?

The other important issue pertaining to the temporal boundaries of consent involves its revocation. All laws recognize a person’s power to revoke sexual consent at any time. In all jurisdictions, the defendant would not be allowed to claim the consent of the victim as his defense if that consent was later revoked. The consequences of such revocation, however, would not be uniform. In some jurisdictions, continued intercourse after the revocation of consent would qualify as rape; in other jurisdictions it would not. 33 One court explained:

The essence of the crime of rape is the outrage to the person and feelings of the female resulting from the nonconsensual violation of her womanhood. When a female willingly consents to an act of sexual intercourse, the penetration by the male cannot constitute a violation of her womanhood nor cause outrage to her person and feelings. If she withdraws consent during the act of sexual intercourse and the male forcibly continues the act without interruption, the female may certainly feel outrage because of the force applied or because the male ignores her wishes, but the sense of outrage to her person and feelings could hardly be of the same magnitude as that resulting from an initial nonconsensual violation of her womanhood. 34

More recent decisions have criticized that reasoning as being based on archaic and outmoded social conventions and ruled that a defendant is guilty of forcible rape if, “during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection.” 35

The amount of time deemed reasonable following a request to stop unwanted activity certainly depends on the circumstances. It may be a few hours in the context of revoked permission to use a person’s car and a few moments in the context of unwanted sexual intercourse. In Re John Z. , the defendant argued that the act of sexual intercourse arouses a male’s primal urge to reproduce; it is therefore, “unreasonable for a female and the law to expect a male to cease having sexual intercourse immediately upon her withdrawal of consent. It is only natural, fair and just that a male be given a reasonable amount of time in which to quell his primal urge.” The court rejected the primal urge argument and opined that the defendant’s failure to withdraw for four or five minutes after the victim’s first request was not reasonable. 36 Similarly, in State v. Bunyard , the court held that, “When consent is withdrawn, continuing sexual intercourse for five to ten minutes is not reasonable and constitutes rape.” 37

Douglas Husak has suggested that perhaps rape is too harsh a charge when “a woman agrees to have sex with a man, allows him to penetrate her, but changes her mind and asks him to stop in the midst of sexual intercourse.” 38 Husak thought that, in those circumstances, the perpetrator’s fault might be mitigated due to the victim’s initial consent.

This suggestion appears flawed. The perpetrator may be entitled to mitigation based on the victim’s conduct only when the victim is partially responsible for the resulting harm. The victim may be partially responsible when the victim either assaults an important right of the perpetrator (as in cases of provocation) or assumes the risks inherent in the consented to conduct (as, say, in drug race cases). Accordingly, a perpetrator in a post-penetration rape might be entitled to mitigation if he had a right that his sexual partner would continue the intercourse as long as the perpetrator desired or if his sexual partner had to assume the risk of forcible sexual intercourse.

But the perpetrator does not have this right. By consenting to undergo root canal procedure or attend a friend’s poetry reading, one does not acquire the obligation to go through the painful experience until the very end. Moreover, one does not assume the risk that the dentist will continue drilling despite the patient’s desperate objections. It seems obvious that the same should be true for sexual contact, regardless of the reason for the request to stop—pain, psychological discomfort, or anything else.

4. Public policy

The requirement that the consented to conduct does not violate public policy allows courts or the legislature to deny the defendant a defense of consent if they conclude that such conduct is harmful or immoral. For example, the German Criminal Code provides: “Whoever commits bodily injury with the consent of the injured person only acts unlawfully if the act is, despite the consent, contrary to good morals.” 39

Violation of an important public policy or good morals has been a traditional ground for legislation criminalizing such vices as gambling, prostitution, drug distribution, fornication, adultery, and incest, regardless of whether the prohibited conduct is consensual. A commentary to the U.S. Model Penal Code lists more offenses to which an individual may not give valid consent. The most prominent among them is homicide—the victim’s consent to being killed does not exculpate the perpetrator. Other offenses include riot, escape, breach of the peace, bribery, and bigamy. 40

Interestingly, the reasons for denying the defense of consent in the case of homicide have little in common with the reasons for denying the defense in the other cases. If we look closely at the group of offenses from riot to bigamy and from gambling to prostitution, it will be clear why consent may not work as a defense. There is simply no identifiable victim who would be able to give consent and thus legitimize the defendant’s conduct. Or, put differently, the victim is the general public, and the general public has already spoken out by adopting a law proscribing the respective behavior.

Homicide is unlike that. There is a specific victim in each act of homicide, the person who was killed. Therefore, it is not the lack of a subject capable of waiving his rights that explains why homicide may not be consented to. The reasons are probably partly historical and partly pragmatic. Historically, at least in Western culture, the non-recognition of consent to killing can be explained by the influence on criminal law of Christianity and the Christian moral philosophy that did not view the life of an individual as his own. Blackstone, for example, postulated that one’s natural life, being “the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority.” 41 Suicide was a crime; therefore, the victim of a consensual killing was, in fact, the perpetrator’s co-conspirator and accomplice. Naturally, consent of a co-felon did not suffice to obliterate the criminal nature of the act. This logic, however, holds little force today because, in the overwhelming majority of jurisdictions, suicide is no longer a crime. Accordingly, there is a strong argument that assisting in a legal act should not be a crime either.

The other explanation for invalidating consent to homicide deals with the already discussed fear of abuse and manipulation of people in a situation or state of mind in which they are not capable of making rational choices of that magnitude. These concerns ought not to be lightly discarded. And the state certainly has an interest in protecting “vulnerable groups—including the poor, the elderly, and disabled persons—from abuse, neglect, and mistakes.” 42 An argument can be made, however, that it is important to distinguish a rule from the abuse of that rule. The abuse is something that is not the rule, that is outside the rule. After all, anything, even a good thing, can be abused and turned into a bad thing, but that is not a reason to prohibit the good thing itself.

One could say that, by criminalizing assisted suicide, society significantly reduces the number of instances when suicide is actually committed. 43 But even if this were true, as much as the reduction in death is desirable, it certainly comes at a price: by denying individuals the power to exercise control over their end-of-life decisions, society imposes on them substantial pain and indignity. According to the recent U.S. Supreme Court jurisprudence, an individual has no constitutionally protected right to assisted suicide, 44 yet he may have the right to starve himself to death. 45 It is plausible that fewer people choose this torturous way of dying compared to the number of those who would choose death by lethal injection. Should that persuade us that criminalization of assisted suicide is justified?

To answer this question, conduct a mental experiment. Suppose that a legislature considers a Bill promoting a new level of capital punishment for particularly egregious crimes: death by starvation. Assume further that the Bill is accompanied by a convincing study, which shows that by this simple change in the form of the death penalty we can reduce the violent crime rate by 50%. Deterrence is one of the main priorities of criminal justice; however, it is highly unlikely that the reduction of crime (and even the accompanying reduction in the number of death penalties) would help such a Bill to pass. Accordingly, there is a strong argument that, if we are unwilling to make criminals suffer a painful and degrading death despite the potential decrease in the number of murders and executions, how can we use the same numerical argument to prohibit humane forms of dying to non-criminals?

Finally, as Joel Feinberg has insightfully pointed out, denying an individual the right to assisted suicide leads to absurd results in any jurisdiction that recognizes the death penalty. A person wishing to die can achieve his goal only by murdering someone else and thus forfeiting the right to life which he cannot alienate voluntarily. And a person wishing to die with someone else’s help can receive that help from one person only, his executioner.

The law’s rejection of consent to killing is the ultimate expression of a more general rule which does not recognize an individual’s consent to any serious self-regarding harm. Under this rule, one may not lawfully agree to be maimed or tortured. Thus, the defendant charged with maiming or torturing his consenting victim may not use that consent as a defense. Similarly, one may not agree to a fist fight or duel. Thus, the parties to such a fight or duel may not claim each other’s consent as a defense. To understand the true reasons for this rule, it would be instructive to look at its history, modern application, and rationales.

IV. The Past and Present of the Defense of Consent

Historically, the principle underlying the defense of consent, volenti non fit injuria (“no wrong is done to one who consents”), goes back to Roman law where it was recognized as early as the sixth century. The first reported case in England that mentions the volenti rule dates back to the beginning of the fourteenth century. By the seventeenth century, volenti had been established as a “maxim.” In Maxims of Reason: Or, the Reason of the Common Law of England, it is said that a person invited into a house to dine is not a trespasser for “ volenti non fit injuria .” 46

Originally, consent was viewed as a complete ban on prosecution. A person was free to consent to practically anything. As one fourteenth-century case said, “the law will suffer a man of his own folly to bind himself to pay on a certain day if he does not make the Tower of London come to Westminster. ‘ Volenti non fit iniuria .’” 47

Changes in the power of an individual to consent to personal harm came in the seventeenth century. They were a natural consequence of the monopolization of the system of punishment by the state. “In contrast to the understanding of crime as a violation of the victim’s interest, the emergence of the state developed another interpretation: the disturbance of the society.” 48 An increasing number of historically “private” offenses were reconceptualized as “public.” The state (or king) became the ultimate victim and the sole prosecutor of a criminal act 49 and, as a result, an individual lost the power to consent to what the state regarded as harm to itself.

In Matthew v. Ollerton , decided in the late seventeenth century, the court decided that the victim’s consent was not a defense to assault and battery “because ’tis against the peace.” The new rule was followed. Fifty years later, a court said that consent of the victim to participate in an unlawful fight does not bar his action. 50 Similar considerations determined the adjudication of Wright’s Case , which involved the offense of mayhem. In that often cited case, a man asked his friend to cut off his hand, so that he would have “more colour to beg.” 51 The consent of the victim did not exculpate the perpetrator because, by maiming a capable man, he deprived the king of the aid and assistance of one of his subjects.

Today, U.S. law, as well as U.K. law, continues to maintain that one’s life and body do not quite belong to him. Accordingly, consent of the victim may not serve as a defense to homicide or serious injury, with two exceptions: recognized medical treatment and athletic activities. 52 This rule, which reflects the law in the absolute majority of common law jurisdictions, has been criticized for its narrow scope and arbitrary boundaries. As one judge remarked, it is “very strange that a fight in private between two youths where one may, at most, get a bloody nose should be unlawful, whereas a boxing match where one heavyweight fighter seeks to knock out his opponent and possibly do him very serious damage should be lawful.” 53

Civil law jurisdictions tend to treat the defense of consent a bit more liberally. For example, the Danish Criminal Code allows the judge to reduce the penalty for assault and battery not resulting in death, as well as to remove any penalty for breach of peace, if the victim has consented to the crime. The German and Austrian Criminal Codes provide that bodily injury inflicted with the consent of the victim is not illegal unless the act is contrary to social mores. And the Italian Criminal Code contains a general provision under which a person who harms or compromises an alienable right of another person with that person’s consent is not criminally liable. 54

Yet, in general, both in common law and civil law jurisdictions, consent to physical harm is recognized only in limited, narrowly defined circumstances. It is often puzzling why the line between lawful and unlawful conduct was drawn where it was in the existing rules. Consider some examples.

Familial Breast Cancer Syndrome, Body Integrity Identity Disorder, and Gender Identity Disorder. A woman who carries a breast cancer gene may choose to have preventive mastectomy. Such radical surgery, although quite lawful, is considered controversial in medical literature: there is little proof that, for the purposes of cancer prevention, it is superior to less extreme and disfiguring alternatives. For women with “familial breast cancer syndrome,” a condition indicating a high risk of developing breast cancer, the primary advantage of the surgery is that it helps to relieve chronic stress and anxiety over the substantial likelihood of developing the disease.

Yet no amount of emotional pain legitimizes elective surgery on a patient with Body Integrity Identity Disorder (BIID), a rare ailment whose victims seek to become amputees. The limited statistics seem to indicate that, if BIID patients succeed in their pursuit, their quality of life improves dramatically. 55 A surgeon who agrees to perform such an amputation, however, opens himself up to criminal liability because his patients’ consent is legally invalid. 56 BIID patients often compare themselves to those suffering from Gender Identity Disorders (GIDs), describing the common experience as “being trapped in the wrong body.” The law, however, treats the two groups very differently: GID patients can consent to a sex-change operation, which often involves removal of healthy sexual organs, whereas BIID sufferers cannot consent to amputation of an arm or a leg. Rejected by the medical community, some BIID sufferers turn to self-help or illegal practitioners in order to achieve their goal—the amputation of unwanted limbs:

In May of 1998 a seventy-nine-year-old man from New York traveled to Mexico and paid $10,000 for a black-market leg amputation; he died of gangrene in a motel. In October 1999 a mentally competent man in Milwaukee severed his arm with a homemade guillotine, and threatened to sever it again if surgeons reattached it. That same month a legal investigator for the California state bar, after being refused a hospital amputation, tied off her legs with tourniquets and began to pack them in ice, hoping that gangrene would set in, necessitating an amputation. She passed out and ultimately gave up. Now she says she will probably have to lie under a train, or shoot her legs off with a shotgun. 57

To what extent all these restrictions are justified is an open question. On the one hand, the liberal tradition with its emphasis on personal autonomy opposes criminal limitations on the decision-making power of rational adult citizens if their choices do not directly harm others. 58 On the other hand, concerns over the rationality of certain irreversible decisions and untested medical technologies dictate caution. This conflict of fundamental humanitarian values has been at the center of bioethical debates in a number of countries.

Sadomasochistic beating vs. Religious flagellation. In accordance with the current rules of consent, in practically every case involving consensual sadomasochistic encounters, the defendant has been convicted of assault. In People v. Jovanovic , for example, the New York Appellate Court held:

Indeed, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person cannot consent to his or her own murder, as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act. 59

Similarly, in R. v. Brown , one judge stated that “the satisfying of sado-masochistic libido does not come within the category of good reason.” 60

Religious flagellation, on the other hand, has enjoyed much more deferential treatment by authorities. In a nineteenth-century Scottish case, the court opined that “In some cases, a beating may be consented to as in the case of a father confessor ordering flagellation; but this is not violence or assault, because there is consent.” 61

In its consultation paper, Consent in the Criminal Law , the Law Commission of England and Wales sympathetically describes a woman who belongs to the liberal edge of the Roman Catholic Church and “takes her religion seriously”:

For many years she has occasionally found self-mortification the appropriate penance, if she has behaved in a way that falls gravely short of what a committed Christian faith involves. …Now that she is married, her husband helps her. He inflicts an adequate level of pain to ensure that the punishment is full and effective. As she put it, the threshold for “actual bodily harm” is clearly exceeded. 62

People may approve or disapprove of the way this couple practices religion. However, under the current law, both in theory and in practice, the “religious” husband is not guilty of any offense. At the same time, if his primary motive for the infliction of pain were not religious but sexual gratification, he most likely would be convicted of assault.

The different treatment of the two kinds of flagellation is disturbing: in both instances the perpetrator may perform the exact same acts, with the consent of the victim, and for the purpose of satisfying an emotional need of the victim. Yet, if that emotional need has a sexual undertone, the perpetrator is likely to be convicted of a felony. It appears that this rule is a typical example of morals legislation intended to punish the perpetrator for causing the “wrong” kind of satisfaction.

Boxing. “Consent of the victim is not generally a defense to assault or battery, except in a situation involving…blows incident to sports such as football, boxing or wrestling.” Thus, while infliction of pain during a sadomasochistic encounter constitutes assault, boxing remains entirely legal, despite the often severe battering caused by the fighters to each other. One court aptly described the sport as an “activity, in which participants excel by injuring their opponents. Indeed, the very acme of achievement for a boxer is to so batter the opponent as to induce a temporary coma—otherwise known as a knockout.” 63 The court pointed out that permanent injuries and even death sometimes result from those fights and that, in any other context, “such an activity would be unacceptable, indeed, criminal.” 64

Consensual transmission of HIV. Even though consensual beating constitutes a crime, consensual intentional transmission of HIV is not punishable in a significant number of jurisdictions. The phenomenon, known as “bug-chasing,” involves “bug-chasers” (HIV-negative men who actively seek out infection by having unprotected sex with infected partners) and “gift-givers” (HIV-positive men willing to infect “bug-chasers”). According to one source, this practice is the cause of 25% of all new infections among American gay men. 65 These statistics have been questioned, but even if they are not entirely accurate, there is a general consensus that “bug-chasing” and “gift-giving” present a serious problem for the gay community. 66 Nevertheless, many jurisdictions do not criminalize the act of knowingly exposing another person to HIV, whereas jurisdictions that do criminalize such an act often explicitly recognize the consent of the victim as an affirmative defense or reach the same outcome by making failure to disclose one’s HIV status an element of the crime.

“Serious” harm. Since any harmful act that does not fit into the “athletic” or “medical” exception is, by definition, criminal, unless the inflicted injury is not serious, assessment of the seriousness of the victim’s injury determines the outcome of many cases involving the defense of consent. A typical penal statute classifies bodily injury as serious if it “creates a substantial risk of death or…causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 67 Pursuant to this definition, any short-term, non-life-threatening injury should not be deemed “serious.” Yet, as the Model Penal Code acknowledges, the assessment of the seriousness of harm is often affected by judges’ “moral judgments about the iniquity of the conduct involved.” 68 Courts tend to inflate the risk and harmfulness of an activity they want to denounce.

For example, in In re J.A.P. , a group of eighth graders played the game of “passout,” the object of which is for one player to make a fellow player faint. 69 The offender grabbed his friend around the neck and proceeded to choke him for a few seconds until the boy lost consciousness and fell to the ground. The victim suffered a few facial lacerations and chipped teeth. By the time of the trial, all his injuries had been treated and healed. Nevertheless, the juvenile court concluded that the offender had engaged in delinquent conduct by committing aggravated assault, an offense which required a finding of “serious bodily harm.”

On appeal, the J.A.P court concluded that a rational juror could determine that the act of choking presented a substantial risk of death; thus, the “serious harm” element of the charged offense was established. Accordingly, since one may not give valid consent to “serious harm,” whether or not the victim had consented to the choking was irrelevant for the defendant’s liability. What the court apparently overlooked is that, under the state law, a “serious injury” was defined as an injury that created a substantial risk of death, not merely an activity that created such a risk. Otherwise, following the court’s logic, a driver who exceeded the speed limit and was stopped by the police before he had a chance to be involved in an accident would be automatically guilty of causing serious injury to his passengers even though none of them had suffered a scratch.

Some penal codes include physical pain in the definition of “bodily harm.” 70 In State v. Guinn , the defendant was convicted of inflicting “serious physical injury” in the course of a sexual encounter. There was no evidence that the victim “ever required any medical attention or suffered any wounds of any sort.” 71 Yet the appellate court sustained the assault conviction, reasoning that the sadomasochistic paraphernalia used by the defendant must have caused serious physical pain (candle wax was “hot and it stung” and nipple clamps were “tight and cutting”), and “physical pain” satisfied the definition of “physical injury.” Naturally, under a statute of this type, practically any sadomasochistic activity may be characterized as criminal.

The current rule of consent to harm may be criticized on many levels: not only is it arbitrary and strict; it is also autocratic and absolute. People are allowed to consent to harm only if their activities are on the list of things approved by the state. The law envisions no balancing or accommodation of conflicting interests of an individual and society. The disregard for an individual, inherent in this rule, goes against the basic principles of autonomy and personal responsibility defining the liberal criminal law doctrine. Moreover, the authoritarian presumption that it is not the individual, but rather the state, that is the victim of every crime is flawed: were that so, consent would not be a defense to any harm, not merely physical harm. 72 However, the law allows individuals to consent to various kinds of harm—emotional, financial, or reputational—as long as those harms are not physical.

This critique prompts two questions: one, why do we perceive consent to bodily harm so differently than consent to any other activity, specifically, why does consent preclude such offenses as theft, rape, or kidnapping but not murder or battery; and two, if we were to revise the current law of consent, how should the defense of consent be defined? Before trying to answer those questions, it may be helpful to review the rationales usually invoked by courts as the reason for refusing to recognize the defendant’s defense of consent in cases of physical harm.

V. Rationales for Disallowing the Defense of Consent in Cases of Physical Harm

Traditional rationales for disallowing the defense of consent in cases of physical harm include: (a) public violence may disturb peace; (b) the injured person may become a public charge; (c) the harmful conduct expresses the parties’ disrespect for the law and social order or is immoral; and (d) certain harmful conduct violates people’s dignity.

Breach of the peace. The reasoning behind this policy has been that when assaults are committed publicly or in the presence of others, they tend to incite riotous and disorderly or offensive behavior. 73 Duels and prize fights have been held to threaten peace; therefore, an agreement to fight has been held invalid. 74

Opponents of this rationale argue that the defense of consent is precluded not only for public actions but also for those carried out in private (e.g. assisted suicide). In addition, in the current era of a well-established police force and numerous statutory offenses directed at specific instances of public disorder, the “breach of peace” rationale for overriding people’s autonomy is outdated and unpersuasive. 75

Public charge . A more general argument in favor of the state’s right to strike individuals’ consensual actions is based on the risk that those individuals would become a “public charge.” 76 Courts have held that the state has an interest in preventing citizens who are capable of being productive members of society from disabling themselves if they or their dependents would be forced to rely either on the gifts of others or on the state itself for support. 77

This argument has been criticized for the assumption that society is justified in restricting people’s rights solely on utilitarian grounds. Under the “public charge” rationale, for instance, the state could criminally ban those who live below the poverty line from having children. Critics of this rationale maintain that a society that respects its members may not use this logic as a basis for its social policies.

Disrespect for law and social order . The rationale of social order and respect for law is typically used to explain why one set of rules is “good for all” and why the state may not permit individuals to contract around the law. As one court said, “To allow an otherwise criminal act to go unpunished because of the victim’s consent would not only threaten the security of our society but also might tend to detract from the force of the moral principles underlying the criminal law.” 78

Those who disagree with this logic may argue that respect for law and social order would only suffer if citizens perceive laws applied in particular cases as unfair or unnecessarily intrusive. 79 Polls show that the public’s view of consensual harm differs dramatically from the current law. As a result, jurors tend to use the power of nullification, disregarding both formal instructions and their own oaths to follow those instructions, when they perceive that the law goes against the community’s principles of appropriate liability and punishment.

Immorality . Courts have used this argument primarily to ban perceived sexual transgressions, such as sodomy, fornication, bigamy, adultery, incest, sadomasochism, and prostitution. In State v. Collier , for example, the court opined: “It is obvious to this court that the legislature did not intend [to legitimize] an activity which has been repeatedly disapproved by other jurisdictions and considered to be in conflict with the general moral principles of our society.” 80

In recent years, however, this argument has lost some of its ground as many jurisdictions struck their homosexual sodomy laws insofar as they applied to the private conduct of two consenting adults. In the United States, the Supreme Court held in Lawrence v. Texas that the majority may not “use the power of the State to enforce [their] views on the whole society through operation of the criminal law.” 81

Violation of dignity . This argument is more academic than judicial or legislative. In the view of its proponents, certain harmful actions violate their victims’ dignity regardless of the consent of the latter. Such actions may include: gladiatorial matches; deadly torture; or the barroom practice known as “dwarf tossing.” But perhaps the most dramatic and disturbing example that gives support to this rationale is the recent German case of Armin Meiwes who killed his consenting victim and ate his flesh “washing it down with a South African red.” His principal defense at the trial was the victim’s consent. Meiwes was initially convicted of manslaughter but on appeal and retrial he was found guilty of murder and sentenced to life in prison.

Proponents of this rationale argue that the law should not allow people to consent to harm that violates their dignity because dignity is so essential to people’s humanity that, in cases of a conflict between autonomy (the ability to consent) and dignity, the former ought to yield. 82

Opponents of this rationale usually cite the vagueness of the concept of “dignity” and express concern that the rationale would bring back all criminal bans based on the “immorality” rationale.

VI. Two Models of Consent: One More Rationale for a Special Treatment of Physical Harm

What distinguishes cases of theft, rape, or kidnapping, on the one hand, from cases of killing or maiming on the other? One obvious answer is that, in the first group of cases, the consent of the participants bars criminal conviction, whereas in the second group it does not. But why?

I have argued elsewhere that the moral difference between the two groups of cases has to do with the character of the act in question and the message criminal law wants to send to the community. 83 In the case of theft, rape, or kidnapping, the act itself does not violate a prohibitory norm. Having sex, transporting someone to a different location, or taking other people’s property is not bad in itself. 84 It becomes bad only due to the absence of consent. In other words, using George Fletcher’s terminology, 85 in the case of theft, rape, or kidnapping, non-consent is a part of the definition of the offense regardless of how a particular criminal statute is drafted. Its role is inculpatory. Therefore, the mere presence of consent defeats the charge against the defendant—the prosecutor simply would not be able to establish all the required elements of the offense.

In contrast, causing pain, injury, or death is not morally neutral—it is regrettable. Bringing about a regrettable state of events is bad and should be avoided. Therefore, we would want a conduct rule that prohibits the very act of killing or hurting, providing, of course, for the necessary exceptions such as self-defense. However, the fact that a person may be legally justified in killing an aggressor in self-defense does not make the killing as morally neutral as borrowing a book—it is still regrettable. Similarly, consensual killing or hurting is regrettable and prima facie prohibited. In certain circumstances consent may be able to overcome this presumption against killing and hurting. Accordingly, the role of consent here is exculpatory; it may only serve as an affirmative defense. Unlike the failure of proof, the affirmative defense shields the defendant from punishment only if there are special circumstances that may excuse or justify the prima facie prohibited act. We, therefore, need two distinct sets of consent rules—one, for offenses like rape, theft, or kidnapping, in which the mere presence of consent defeats the charge; and the other for offenses involving physical harm (e.g. homicide or battery) for which consent may only serve as an affirmative defense.

By giving consent, an individual waives a right he used to have and gives other people rights they did not previously have. A person’s consent does not impose any obligations on other people; it merely provides them with an option. Even when the waiver of rights is combined with a request, these other people still have no duty to follow it. For example, a patient may request (and simultaneously consent to) surgery. If his doctor does not believe the patient needs it or does not want to perform it himself, he is under no duty to do so.

In other words, consent or even a request creates a very weak content- independent reason for action, compared to, say, threats or orders of authority. Consent by one person does not diminish another person’s capacity for free choice; it does not create a volitional or cognitive impairment of that other person; so, the defense of consent is not an excuse. Instead, being a waiver of rights, consent eliminates the violation of the consent-giver’s rights by the actor and thus eliminates (or at least diminishes) the wrongfulness of the actor’s conduct. Its function is, therefore, justificatory and the defense of consent may serve as a justification, provided the defendant can satisfy the minimal set of requirements essential to all defenses of justification. In a very general form those requirements include:

a valid basis for the defense—for example, necessity (for the choice-of-evils defense) or the immediate need to fend off an unlawful attack (for self-defense);

an objectively preferable outcome—for example, a positive balance of harms and evils (for the choice-of-evils defense) or avoiding the harm to an innocent victim (for self-defense); and

the perpetrator’s good faith, that is, his awareness of (a) and (b) and his subjective belief in the necessity of overstepping a prohibitory norm in order to achieve the preferable outcome.

For illustration, consider self-defense. If the perpetrator used force in the absence of an immediate need to fend off an unlawful attack (no basis for the defense) or injured several innocent bystanders in order to immobilize the aggressor (not an objectively preferable outcome), he would not be justified. He also would not be justified if he did not realize that he was being attacked when he used force. Nor would his defense succeed if he merely used the attack as a ploy to harm the aggressor (bad faith).

Similarly, a defendant raising the defense of consent would succeed only if he has the valid consent of the victim (the basis for the defense); his harmful actions result in a positive balance of harms and evils; and he is aware of the victim’s valid consent and is driven by the desire to bring about a preferable outcome (e.g. to respect the wishes of the victim).

The defense of consent structured in this way would have two normative consequences. One is that consent alone does not suffice to justify the victim’s death or injury even though it suffices to preclude conviction of rape, theft, or kidnapping. The other is that consent should always be at least a partial defense, because it defeats at least one aspect of harm, namely, violation of rights. A partial justification does not make a wrongful act right; it only makes it less wrongful compared to an identical but non-consensual act.

The perpetrator should not be entitled to complete justification if any of the following is true:

the harmful consensual act has brought about more bad than good (e.g. the euthanized patient was not in pain and had excellent prospects of recovery);

the harmful consensual act has significantly set back both the victim’s interests and dignity (e.g. Meiwes’s case of murder and cannibalism); or

the perpetrator’s conscious goal was not benevolent (e.g. killing a consenting, terminally ill patient to put hands on his property).

Under the so structured defense of consent, many of the cases cited in this chapter would be decided differently. For example, the members of the gay sadomasochistic club in R. v. Brown would be acquitted: the injuries involved were neither dangerous to life and health (no medical care was ever required) nor permanent; the harmful actions were directed at satisfying the emotional preferences of the victims; and the defendants were not motivated by a desire to set back their partners’ interests. Some other decisions would not change or would change only with respect to the level of punishment. For example, Armin Meiwes would still be convicted: he was motivated by the egotistical desire of experiencing killing and cannibalism and his actions clearly did not bring about more good than evil. However, under the revised rule, Meiwes may be entitled to partial justification and reduced punishment. After all, as bad as his offense is, it would be much worse had the same things been done to a non-consenting victim.

The proposed rule makes sense both theoretically and practically. From the theoretical perspective, it places consent squarely within the family of justification defenses. All of them, from self-defense to necessity, seek to overcome the deontological constraint against intentional infliction of harm. These defenses may be granted to a person who chose a certain course of action despite its negative effects (as opposed to for the sake of its negative effects) and succeeded in producing a better outcome. From the practical perspective, this rule leaves room for balancing the harms and benefits caused by the perpetrator. This is an important difference from the current law, which is absolute in what it allows and disallows. Overall, adopting a rule based on a uniform principle common to other justification defenses would lead to more fair, consistent, and morally sustainable verdicts.

VII. Conclusion

Courts and legislatures in many countries have been struggling with defining the meaning and boundaries of the defense of consent. Some aspects of this defense are relatively noncontroversial (e.g. the requirements of free, rational, and informed consent), even though they include uncertainties and “gray areas.” Other aspects are less settled and explained. The biggest issue with this defense is whether it should be allowed in cases of physical harm. Since the consent of the victim eliminates the standard ground for criminal prosecution—violation of the victim’s rights—courts and legislatures needed to produce other rationales for disallowing the defense. Most of them have been criticized as inadequate, outdated, or autocratic. And still, not many people have argued in favor of allowing the defense in all circumstances. One thing is clear about the defense of consent—the debate about it is far from being over.

Alexander, Larry , “ The Moral Magic of Consent II, ” ( 1996 ) 2 Legal Theory 165

Google Scholar

Baker, Dennis J , “ The Moral Limits of Consent as a Defense in the Criminal Law, ” ( 2009 ) 12 New Crim. LR 93

Brett, Nathan , “ Sexual Offenses and Consent, ” ( 1988 ) XI Canadian Journal of Law & Jurisprudence 69

Dan-Cohen, Meir , “ Basic Values and the Victim’s State of Mind, ” ( 2000 ) 88 California LR 759

Dubber, Markus D. , “ Toward a Constitutional Law of Crime and Punishment, ” ( 2004 ) 55 Hastings LJ 509

Green, Stuart P. , “ Offenses and Defenses: Consent and the Grammar of Theft Law, ” ( 2007 ) 28 Cardozo LR 2505

Hurd, Heidi M. , “ The Moral Magic of Consent, ” ( 1996 ) 2 Legal Theory 121

Ingman, Terence , “A History of the Defense of Volenti Non Fit Injuria ,” ( 1981 ) 26 Juridical Review 1

Miller, Franklin G. and Wertheimer, Alan (eds.), The Ethics of Consent: Theory and Practice ( 2010 )

Google Preview

Roberts, Paul , “ Philosophy, Feinberg, Codification, and Consent: A Progress Report on English Experiences of Criminal Law Reform, ” ( 2001 ) 5 Buffalo Crim. LR 173

Simons, Kenneth W. , “ The Conceptual Structure of Consent in Criminal Law, ” ( 2006 ) 9 Buffalo Crim. LR 577

Thomson, Judith Jarvis , The Realm of Rights ( 1990 )

Wertheimer, Alan , Consent to Sexual Relations ( 2003 )

Westen, Peter , The Logic of Consent. The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct ( 2003 )

Westen, Peter K. , “ Some Common Confusions About Consent in Rape Cases, ” ( 2004 ) 2 Ohio State Journal of Crim. Law 332

Wright, R. George , “ Consenting Adults: The Problem of Enhancing Human Dignity Non-Coercively, ” ( 1995 ) 75 Boston University LR 1397

Model Penal Code (1980) § 2.11.

Vera Bergelson , “The Right to Be Hurt: Testing the Boundaries of Consent,” (2007) 75 George Washington LR 165 .

R. v. Brown [1994] 1 A.C. 212 (H.L.).

The Case of Armin Meiwes, BGH ( Bundesgerichtshof , German Federal Court of Justice), May 26, 2004, 49 BGHSt 166.

People v. Brown , 01 S.O.S. 3877 (Ca. App. 2001).

People v. Kevorkian , 639 N.W.2d 291 (Mich. Ct. App. 2001).

Law Commission, Criminal Law: Consent in the Criminal Law (Law Com Consultation Paper No. 139), 1. The Commission has analyzed numerous cases, attempting to develop general principles of the law of consent but the attempt proved to be largely unsuccessful. No legislative recommendations were issued. In 2001, the Commission admitted its inability to reach a consensus and terminated the consent project.

Peter K. Westen , “Some Common Confusions About Consent in Rape Cases,” (2004) 2 Ohio State Journal of Crim. Law 332, 336 .

Simon Bronitt , “The Direction of Rape Law in Australia: Toward A Positive Consent Standard,” (1995) 18 Crim. LJ 249, 253 .

Whether the crime was attempted is a separate question.

See e.g. American Law Institute, Model Penal Code and Commentaries (1980), § 2.11(d)(3), § 2.11, 3.

Deborah D. Denno , “Sexuality, Rape and Mental Retardation,” (1997) University of Illinois LR 315, 434 ; Alan Wetheimer, Consent to Sexual Relations (2003).

R. v. Bree [2007] EWCA Crim. 804, [2007] 2 Cr. App. R. 13.

Shlomit Wallerstein , “A Drunken Consent Is Still Consent’—or Is It? A Critical Analysis of the Law on a Drunken Consent to Sex Following Bree ,” (2009) 73 Journal of Crim. Law 318, 344 .

Brenda Goodman , “Georgia Supreme Court Hears 2 Appeals in Teenage Sex Case,” The New York Times , July 21, 2007, available at: < http://www.nytimes.com/2007/07/21/us/21rape.html > .

Age of Consent, “FINLEX ®—Translations of Finnish acts and decrees: 39/1889 English.” Finlex.fi. 2009-05-29 (as at Jan. 14, 2013).

Gibbins v. State , 495 S.E.2d 46, 48 (Ga. App. 1997).

State in the Interest of M.T.S ., 609 A.2d 1266 (N.J. 1992).

People v. Samuels , 58 Cal. Rptr. 439, 447 (Ct. App. 1967).

Brown (n. 3 ).

Washington v. Glucksberg , 138 L. Ed. 2d 772, 738 (O’Connor, J., concurring) (1997).

See e.g. Franklin G. Miller et al., “Regulating Physician-Assisted Death,” (1994) 331 New England Journal of Medicine 119, 120 .

Perkins and Boyce (n. 1 ) 1079.

Boro v. Superior Court , 163 Cal. App. 3d 1224 (1985).

California Penal Code § 261(a)(4)(D).

Kenney Hegland , “Suggestions, Not Demands: Rethinking Living Wills,” (2004) 41 Arizona Attorney 14, 15 .

Hegland, (2004) 41 Arizona Attorney 14.

Norman L. Cantor , Advance Directives and the Pursuit of Death with Dignity (1993), 27 .

R. v. J.A . [2011] 2 SCR 448.

See e.g. State v. Way , 254 S.E.2d 760, 762 (N.C. 1979).

People v. Vela , 172 Cal. App. 3d 237, 243 (1985).

In re John Z ., 29 Cal. 4th 756, 786 (2003). See also, State v. Robinson , 496 A.2d 1067, 1070–71 (Me. 1985); McGill v. State , 18 P.3d 77, 84 (Alas. App. 2001); State v. Bunyard , 75 P.3d 750, 756–757 (Kan. App. 2003).

John Z . (n. 35 ) 763.

Bunyard (n. 35 ) 756.

Douglas N. Husak , “Comparative Fault in Criminal Law: Conceptual and Normative Perplexities,” (2005) 8 Buffalo Crim. LR 523, 540 .

§ 228 StGB ( Strafgesetzbuch , German Criminal Code), available at: < http://www.gesetze-im-​internet.de/englisch_stgb/englisch_stgb.html >.

Model Penal Code and Commentaries (1980) § 2.11, 1.

William Blackstone , Commentaries on the Laws of England (1765–1769), 133 .

Glucksberg (n. 22 ) 731–732.

Glucksberg (n. 22 ) (“The State has an interest in preventing suicide, and in studying, identifying, and treating its causes”).

Glucksberg (n. 22 ) 736 (O’Connor, J., concurring).

See Cruzan v. Director, Missouri Department of Health , 497 U.S. 261, 279 (1990).

Terence Ingman , “A History of the Defense of Volenti Non Fit Injuria ,” (1981) 26 Juridical Review 1, 4 .

Ingman, (1981) 26 Juridical Review 1, 3.

Stephen Schafer , Victimology: The Victim and His Criminal (1977), 22 .

Blackstone (n. 41 ) 5–6; Markus D. Dubber , “Toward a Constitutional Law of Crime and Punishment,” (2004) 55 Hastings LJ 509, 570 .

Ingman (n. 47 ) 4.

Blackstone (n. 41 ) 205.

Model Penal Code (1980) § 2.11(2).

Brown (n. 3 ) (per Lord Slynn).

Marie-Thérèse Meulders-Klein , “The Right Over One’s Own Body: Its Scope and Limits in Comparative Law,” (1983) 6 British Columbia International & Comparative LR 29, 39–40 .

Editorial, “When It Feels Right to Cut Off Your Leg,” Geelong Advertiser , July 4, 2005, 15.

But see, Tim Bayne and Neil Levy , “Amputees by Choice: Body Integrity Identity Disorder and the Ethics of Amputation,” (2005) 22 Journal of Applied Philosophy 75, 84–85 .

Carl Elliot , “A New Way to Be Mad,” (2000) Atlantic Monthly 73, available at: < http://www.theat​lantic.com/doc/prem/200012/madness > .

See e.g. John Stuart Mill, On Liberty (1869), ch. IV, paras. 10–11.

People v. Jovanovic , 263 A.D.2d 182, 197 fn. 5 (N.Y. App. Div. 1999).

R. v. Brown [1992] 2 All E.R. 552 (C.A.).

Law Commission (n. 7 ) paras. 10-1–10-4.

Law Commission (n. 7 ) 131.

Foronda v. Hawaii International Boxing Club , 2001 Haw. App. LEXIS 117, *48 (Int. Ct. App. Hi 2001).

Foronda (n. 63 ).

Amanda Weiss, Comment, “Criminalizing Consensual Transmission of HIV,” (2006) University of Chicago Legal Forum 389, 389–390.

Model Penal Code (1980) § 210.0(3). Following the Model Penal Code, many states have adopted an identical or similar definition. See e.g. N.J. State Ann. (2005) § 2C:11-1(b); Tex. Penal Code. Ann. (2005) § 1.07(46).

Model Penal Code and Commentaries (1980) § 2.11, 2 fn.8.

In re J.A.P ., No. 03-02-00112-CV, 2002 Tex. App. LEXIS 7374, *3 (Tex. Crim. App. Oct. 17, 2002).

See e.g. Wash. Rev. Code (2004), § 9A.04.110(4)(a).

Guinn , 2001 Wash. App. lexis 502, *32 and *34.

See Dubber, (2004) 55 Hastings LJ 509, 570.

State v. White , 28 A. 968 (R.I. 1894).

Bissell v. Starzinger , 83 N.W. 1065 (Iowa 1900); Bundrick v. State , 54 S.E. 683 (Ga. 1906).

Attorney-General’s Reference (No. 6 of 1980) [1981] QB 715, 719.

State v. Bass , 120 S.E.2d 580, 586 (N.C. 1961).

Note, “Consent in Criminal Law: Violence in Sports,” (1976) 75 Michigan LR 148, 165.

State v. Brown , 364 A.2d 27, 31–32 (N.J. Super. Ct. Law Div. 1976).

Paul H. Robinson and John M. Darley . “The Utility of Desert,” (1997) 91 Northwest University LR 453–499 .

State v. Collier , 372 N.W.2d 303, 307 (Iowa Ct. App. 1985).

Lawrence v. Texas , 539 U.S. 558 (2003).

See R. George Wright , “Consenting Adults: The Problem of Enhancing Human Dignity Non-Coercively,” (1995) 75 Boston University LR 1397, 1399 ; Meir Dan-Cohen , “Basic Values and the Victim’s State of Mind,” (2000) 88 California LR 759, 777–778 ; Dubber, (2004) , 55 Hastings LJ 509, 568.

Bergelson, (2007) 75 George Washington LR 75, 165.

But see, Michelle Madden Dempsey and Jonathan Herring , “Why Sexual Penetration Requires Justification,” (2007) 27 OJLS 467 (arguing that sexual penetration is a prima facie wrong and therefore requires justification).

See George P. Fletcher , Rethinking Criminal Law (1977) .

• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Institutional account management
• Rights and permissions
• Get help with access
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

Criminal Law and Morality in the Age of Consent

Interdisciplinary Perspectives

• © 2020
• Aniceto Masferrer 0

Faculty of Law, University of Valencia, Valencia, Spain

You can also search for this editor in PubMed   Google Scholar

• Presents a groundbreaking and interdisciplinary approach to criminal law and morality in the Western world
• Offers fresh interdisciplinary perspectives
• Expresses criticism and stimulates further thought

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice (IUSGENT, volume 84)

7384 Accesses

7 Citations

2 Altmetric

This is a preview of subscription content, log in via an institution to check access.

Access this book

• Available as EPUB and PDF
• Read on any device
• Instant download
• Own it forever
• Compact, lightweight edition
• Dispatched in 3 to 5 business days
• Free shipping worldwide - see info
• Durable hardcover edition

Tax calculation will be finalised at checkout

Other ways to access

Licence this eBook for your library

Institutional subscriptions

Table of contents (15 chapters)

Front matter, criminal law and morality revisited: interdisciplinary perspectives.

Aniceto Masferrer

Criminal Law and Morality: Historical Perspectives

The rise of ethical reproach in spanish late scolasticism.

• Harald Maihold

Liberties, Rights and Punishments in Modern Natural Law

• Manuel Rodríguez Puerto

Roman Dutch Criminal Law and Calvinism: Calvinist Morality in De Criminibus (1644) of Antonius Matthaeus II

• Janwillem Oosterhuis

The Role of Nature in the Secularization of Criminal Law in Europe (17th–19th Centuries)

Habits of intelligence. liberty of expression and the criterion of harm in john stuart mill.

• Ignacio Sánchez Cámara

Criminal Law and Morality: Philosophical and Criminal Law Perspectives

The fundamentals of ethics.

• Francisco Carpintero Benítez

What is Perfectionism?

• Francisco J. Contreras

Build and Restore Good Human Relationships. Overcoming the Retributive Paradigm as a Key Issue for the Theory of Justice

• Luciano Eusebi

Paternalism and Moral Limits of Criminal Law

• Luigi Cornacchia

Human Dignity and Legally Protected Goods in Criminal Law

• Pedro Talavera

From Eunomia to Paideia: The Educating Nature of Law

• Vicente Bellver

Criminal Law and Morality: Controversial Issues

From crime to right.

• Marta Albert

The Role of the Criminal Law in Regulating Pornography

• Gerard V. Bradley

Dignity at the End of Life and Decriminalization of Euthanasia

• Jorge Nicolás Lafferriere
• Criminal law
• Western legal tradition
• Legal philosophy
• Legal history
• Comparative legal history

About this book

This book discusses the relation between morality and politics, and morality and law, a field that has been studied for more than two thousand years The law is a part of human culture, and this touches upon a dynamic reality that is connected to the relation between nature and freedom, nature and culture. If such relations are not clearly understood, as is the case today, the relation between morality and law cannot be properly comprehended either. The relationship between morality and criminal law must constantly evolve to meet the needs of changing times and circumstances. Social changes and new situations require new answers. And since the relationship involves criminal law, legal philosophy and legal history, interdisciplinary approaches are always needed. Featuring fifteen original contributions by legal scholars from various European and American universities, the book does not pretend to solve the complexity of the relation between morality and criminal law, but instead expresses criticism, offers some proposals and stimulates further thought. The book tackles the topic from an interdisciplinary perspective (criminal law, constitutional law, legal philosophy and legal history, among others). As such, it appeals not only to scholars and students, but also to lawyers, policymakers, historians, theologians, philosophers and general readers who are interested in the legal, social, political and philosophical issues of our time.

Editors and Affiliations

About the editor.

Aniceto Masferrer is a Professor of Legal History and teaches legal history and comparative law at the Faculty of Law, University of Valencia, Spain He has been a Visiting Fellow or Professor at the Max Planck Institute for European Legal History (2000–2003), the University of Cambridge (2005), Harvard Law School (2006–2007), Melbourne Law School (2008), the University of Tasmania (2010), Louisiana State University – The Paul M. Hebert Law Center – (2013), George Washington University Law School and at the École Normale Supérieure – Paris (2015). He has lectured at universities around the world (France, Germany, Belgium, the Netherlands, Malta, Israel, UK, Sweden, Norway, USA, Canada, Australia and New Zealand). He is the author of nine books (including his Spanish Legal Traditions: A Comparative Legal History Outline, Madrid, 2009; 2012, 2nd ed.) and the editor of twelve (including Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in CounteringTerrorism, Springer, 2012; Counter-Terrorism, Human Rights and The Rule Of Law. Crossing Legal Boundaries in Defence of the State, Edward Elgar Publishing, 2013; La Codificación española. Una aproximación doctrinal e historiográfica a sus influencias extranjeras, y a la francesa en particular, Thomson Reuters-Aranzadi, 2014; Human Dignity of the Vulnerable in the Age of Rights: Interdisciplinary Perspectives, Springer, 2016; The Western Codification of Criminal Law: The Myth of the Predominant French Influence in Europe and America Revisited, Springer, 2018; Comparative Legal History, Edward Elgar Publishing, 2019) and around hundred book chapters/articles published in Spanish, European and American law journals. He has published extensively on criminal law from an historical and comparative perspective, as well as on the codification movement and fundamental rights in the Western legal tradition.

Bibliographic Information

Book Title : Criminal Law and Morality in the Age of Consent

Book Subtitle : Interdisciplinary Perspectives

Editors : Aniceto Masferrer

Series Title : Ius Gentium: Comparative Perspectives on Law and Justice

DOI : https://doi.org/10.1007/978-3-030-64163-4

Publisher : Springer Cham

eBook Packages : Law and Criminology , Law and Criminology (R0)

Copyright Information : The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020

Hardcover ISBN : 978-3-030-64162-7 Published: 10 February 2021

Softcover ISBN : 978-3-030-64165-8 Published: 10 February 2022

eBook ISBN : 978-3-030-64163-4 Published: 09 February 2021

Series ISSN : 1534-6781

Series E-ISSN : 2214-9902

Edition Number : 1

Number of Pages : VI, 367

Number of Illustrations : 1 b/w illustrations

Topics : Theories of Law, Philosophy of Law, Legal History , International Criminal Law , Private International Law, International & Foreign Law, Comparative Law

• Publish with us

Policies and ethics

• Find a journal
• Track your research