Consent

In Criminal Law, consent may be an excuse and prevent the defendant from incurring liability for what was done. For a more general discussion, see [consensual crime].

Generally

Defense against criminal liability may arise when a defendant can argue that, because of consent, there was no crime (e.g., arguing that permission was given to use an automobile, so it was not theft nor taken without the owner's consent). But public policy requires courts to lay down limits on the extent to which citizens are allowed to consent or are to be bound by apparent consent given.

• For example, minors cannot consent to have sexual intercourse under a specified age even though the particular instance of statutory rape might be a "victimless" offense.
• In the case of adults, for example, an individual cannot give consent and create a valid second marriage. The second ceremony will do no more than expose the prospective spouse to a charge of bigamy.
• Similarly, no consent can be given for an incestuous relationship nor for relationships that expose one of the parties to excessive violence (e.g. most states have a rule that an abusive husband can be prosecuted even if the wife does not co-operate and give evidence to rebut the husband's defense that the wife consented).

However, an individual can not consent to an act which clearly a criminal offense.

In English law, the Sexual offenses Act 2003 removes the element of consent from the actus reus of many offenses, so that only the act itself and the age or other constraints need to be proved, including:

children under 16 years generally, and under 18 years if having sexual relations with persons in a position of trust or with family members over 18 years; and

persons with a mental disorder that impedes choice who are induced, threatened or deceived, or who have sexual relations with care workers.

• While it may be argued by strict libertarians that a state has no general duty to protect the foolish from the effects of mistakes they have made, there is an underlying policy need to limit the ability of the strong to prey on the weak. Hence, most states have laws which criminalize misrepresentations, deceptions and fraud.

Consent as a defence to non-sexual assaults

The problem has always been to decide at what level the victim's consent becomes ineffective. Historically, the defence was denied when the injuries caused amounted to a maim (1824). Now Lord Mustill in R v Brown (1993) has set the level just below actual bodily harm. Thus, where actual bodily harm (or worse) is either caused or intended, consent cannot be a defense. This follows on from R v Donovan (1934) in which Swift J. stated the general rule that:

No person can license another to commit a crime, if (the jury) were satisfied that the blows struck ... were likely or intended to do bodily harm ... they ought to convict ... only if they were not so satisfied (was it) necessary to consider the further question whether the prosecution had negatived consent.

Consent to sexual assaults

For sadomasochism, R v Boyea (1992) was another application of the ratio decidendi in Donovan that even if she had actually consented to injury by allowing the defendant to put his hand into her vagina and twist it, causing internal and external injuries to her vagina and bruising on her pubis, the woman's consent (if any) would have been irrelevant. The court took judicial notice of the change in social attitudes to sexual matters but, "the extent of the violence inflicted… went far beyond the risk of minor injury to which, if she did consent, her consent would have been a defense". In R v Brown (1993), the House of Lords rejected the defense on public policy grounds. This is an application of the general rule that, once an actus reus with an appropriate mens rea has been established, no defense can be admitted but the evidence may be admitted to mitigate the sentence.

This decision was confirmed in the ECHR in Laskey v United Kingdom (1997) on the basis that although the prosecution might have constituted an interference with the private lives of those involved, it was justified for the protection of public health. In R v Emmett (unreported, 18th June 1999), as part of their consensual sexual activity, the woman allowed her partner to cover her head with a plastic bag, tying it tightly at the neck. On a different occasion, she agreed that he could pour fuel from a lighter onto her breasts and set fire to the fuel. On the first occasion, she was at risk of death, and lost consciousness. On the second, she suffered burns, which became infected. The court applied Brown and ruled that the woman's consent to these events did not provide a defence for her partner. The general rule, therefore, is that violence involving the deliberate and intentional infliction of bodily harm is and remains unlawful notwithstanding that its purpose is the sexual gratification of one or both participants. Notwithstanding their sexual overtones, these cases are considered to be violent crimes and it is not an excuse that one partner consents.

The public interest in preventing breaches of the peace

In R v Coney (1882), members of the public who attended an illegal prize fight in a public place were convicted of aiding and abbetting an assault. They were cheering on the boxers whose conduct was likely to and did produce a breach of the peace, so any mutual consent given by the fighters was vitiated by the public nature of the entertainment irrespective of the degree of injury caused and/or intended. Hence, the principal offense was committed and, since it would not have taken place had there been no crowd to bet and support the fighters, the secondary parties were also liable.

Consent as an effective defence

In properly regulated sport, there is a legal right to cause incidental injury. This The victim consents to run the risk (not the certainty) of injury arising within the rules of the game being played. This does not give sport a license to enact rules permitting acts that are clearly, excessively and maliciously violent. Even professional sport should have an element of fun while the players are, in the more extreme cases, given criminal as well as civil law protection. Thus, the consent in licensed boxing events to "intentional harm" is within the rules but a blow struck between rounds would be an assault.

Horseplay

Where the culture supports the playing of practical jokes and active physical interaction as a form of "fun", those who become a part of that culture must accept the local standards of contact and the injuries that might result. Thus, the victim was a serving member of the Royal Air Force and the fact that he had participated in practical jokes played on his companions was accepted as evidence that he had consented to become a victim when it was "his turn".

Legal right to cause injury

• Doctors and all health professionals have a general right to assume a patient's consent for necessary treatment. So if a person is brought into a hospital unconscious, surgery to preserve life will not be unlawful. But, if the health authorities have actual notice that the patient does not consent, even necessary treatment will be unlawful unless either it becomes urgently necessary to take action to avoid death, or consent is given either by a spouse or relative, or by a court. There have been cases, for example, where it was not to be an assault for prison hospitals for force-feed a prisoner on hunger strike, but such cases are not of general application. When in doubt, consent should be sought from the courts. In any event, treatment will only be lawful if it is of therapeutic rather than cosmetic value. Similarly, tattooing, ear piercing and other cosmetic procedures will be lawful if there is actual consent.
• Parents and others who are in loco parentis have a limited right to administer reasonable parental punishment, but teachers are prohibited from administering corporal punishment.

See also [ Consent ]

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