The Criminal Defense of Consent

The Criminal Defense of Consent

In certain criminal circumstances, an apparent criminal act may have been committed, but an essential requirement of the crime is that the victim was opposed to the crime occurring. When this happens, one defense available to the defendant is that the victim actually consented to the act, and thus the act was not a crime.

Consent and Bodily Harm

Some crimes for which consent may be a defense include those that result in bodily harm, including assault and battery. In very limited circumstances, victims can be held to consent to these crimes. One common example is in physical contact sports. Participants in a sports game are deemed to have consented to the physical contact and possible bodily harm that is an essential element of their sport.

In order to establish consent in these circumstances, three requirements must be present. First, an individual cannot consent to circumstances that involve the possibility of serious bodily injury. Second, the harm must be a reasonably foreseeable aspect of the conduct and a risk that would reasonably be accepted. Third, the individual must receive some sort of benefit from the conduct such that the consent was justified.

Since these requirements are highly specific, they apply only in very limited circumstances, and typically some sort of athletic event. For instance, boxers or rugby players can be held to consent to battery that results from their participation.

Consent and Rape or Sexual Assault

The defense of consent also applies to crimes for which lack of consent is an essential element of the crime. Thus, since the crimes of rape and sexual assault both require that the victim did not consent to the sexual conduct occurring, the defense of consent may be available. Similarly, consent may also negate certain property crimes, such as trespassing. This consent can be express or implied, but implied consent will often be much more difficult to establish.

Establishing Consent

In addition to showing that consent occurred, a criminal defendant will also have to prove that that the person who gave consent was legally able to do so. Merely stating that an individual consented to certain actions or conduct is not enough to establish a defense of consent in criminal court. Only certain individuals have been deemed legally capable of giving consent.  Under our current legal system, consent will be considered inapplicable if:

  • The consent is given by a person who does not have authorization to provide consent. Thus, an individual cannot consent to the taking of his neighbor’s property because he does not have authorization to dictate what happens to the property.
  • The consent is given by a person who is held unable to consent by virtue of being underage, having a mental disorder, or being intoxicated and therefore unable to make a reasonable judgment about the conduct.
  • The law does not allow the victim to consent, such as in the case of statutory rape.
  • The consent was not voluntarily given, but was obtained by force or duress.

In all of these circumstances, even if the criminal defendant argues that consent was obtained, courts will likely determine that the consent is legally invalid, and the defense will not apply.