As I understand it, the consent of the victim is sometimes a defense to a criminal charge (say a forcible rape) and sometimes not (statutory rape). What about other crimes? Under what circumstances is consent a defense to assault, for example? My thought is that it can’t be a defense to murder; am I right there?
This was not in the US and unfortunately I cannot find the cite right now but IIRC in the UK a S&M club was busted. The people who were there all said they were there of their own choice and the things happening to them was their choice. No one was forcing anything.
I think the court decided that no one in their right mind would accede to that treatment so busted the perpetrators.
US law is of course different than UK law but not very different. Not sure how it would go here though.
Of course we can assume that no-one in their right mind consents to being assaulted, but only a nutbar believes that no woman in her right mind consents to sex.
Consent can be a defense to assault, yes (otherwise martial arts classes would be illegal ;)). The specific statute in my state is:
No we can’t. Things happen in a boxing or MMA ring that would be crimes outside the ring, because both parties consent.
ETA: I’m not sure teh phrase “in their right mind” has much meaning.
Almost any circumstances. You can’t charge a surgeon with assault for cutting you. Mike Tyson can’t charge his opponents for punching him in the head and breaking his nose.
Provided the act itself is legal, consent is always defense to a charge of assault AFAIK. Of course IANAL.
No, in some places consent is a defence to a murder charge.
There are`the places that have euthanasia laws that allow a person to consent to someone else assisting them their efforts to die. The existence of consent is a viable defence to any murder charges resulting from that assistance.
Re: murder – sounds like you’ve just described Assisted Suicide. Which IIRC is legal, or at least not criminalized, in some European countries, under some conditions.
You’ll probably need to prove the consent part, though – and you may have a hard time getting the victim to vouch for you in court… :eek:
ETA: Damn you, Blake! Your response wasn’t there when I started typing!! (yeah, I got distracted for a few minutes along the way)
As usual the Family Circus has already covered this
Then there was the case of the guy who was voluntarily cannibalized
Consent of the owner of the goods taken would also be a valid defense to a charge of theft.
Pretty much by definition, since theft can only be defined as the taking of property without the owner’s consent.
I’m more looking for crimes & circumstances (like statutory rape) in which the consent of the victim is irrelevant.
Anything involving strict liability, then?
The UK case Whack-a-Mole is referring to is called R v Brown [1994] 1 AC 212. The House of Lords held (3-2) that consent was not a defence to the offences of assault occasioning actual bodily harm and grevious bodily harm when the injuries result from sado-masochistic activities. To quote Lord Templeman:
The decision was criticised at the time for being both overly paternalistic and homophobic. The allegations of homophobia weren’t helped by a decision in 1996 (R v Wilson) where human branding between a heterosexual couple was held to be a non-criminal act on the grounds that they had consented, and the 1995 manslaughter case (R v Slingsby) where a woman died from septicaemia after sustaining cuts from a man fisting her while still wearing a signet ring. The woman’s consent to the activity was considered a valid defence to the charge of manslaughter.
I think you’ve identified the one way in which consent is not a defense - if the person is deemed not capable of giving consent, either because of being a minor, or because of mental instability, or coercion.
But it’s hard to find examples where you’d be guilty of assault if real consent is given. We constantly give consent to thing that would be considered assault if we didn’t. For example, shooting a stranger on the street with a paintball gun is certainly assault, but you can play paintball with friends or strangers, so long as everyone gives consent. You can even surprise people if the situation offers consent. Hockey fights would be an example. People have been cold-cocked in hockey games with impugnity. It’s extremely rare for a hockey player to be charged with assault, and that’s usually only when the level of violence rises above what would be considered normal in hockey (an intentional clubbing with a stick, for example).
I think the legal argument in a case like that was that the assaulted player only consented to the “usual” amount of violence, such as punching. He did not consent to the extra amount of violence of being clubbed with a stick so that was non-consensual and therefore illegal assault.
It would be analogous to me running a store and having a penny jar at the front counter. I might have a sign saying “take some pennies” but that doesn’t mean I’m consenting to a robber taking the contents of my cash register.
R v. Brown was the leading case on this (for my jurisdiction) back (in the dark ages) when I studied law.
In Canada, the lack of consent by the person touched is an element of the offence of assault Criminal Code:
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Consent by the person touched is thus a defence to the charge of assault, for example, in hockey or football. However, there have been cases which have held that the consent is limited by implication to the type of force that is typical of the particular sport. For example, Todd Bertuzzi pled guilty to assault on Steve Moore for attacking him from behind and fracturing three vertabrae in Moore’s neck.
Also under Canadian law, aperson cannot consent to be killed:
Operation spanner.
What about if it’s a case of rape where the victim couldn’t consent because they are passed out. If the victim wakes up and says, “No, it’s okay, I don’t mind” were they still raped, and did the rapist still commit a crime?
And legally can you give someone permission before you pass out (while still conscious) to have sex with you, later on, when you are unconscious?
The Supreme Court of Canada is currently considering exactly that point, in a case argued last week: Court to judge ‘advance’ consent - Case involves woman who was sodomized while unconscious after ‘erotic asphyxiation’.