# Is the consent of the victim a defense to assault? What about other crimes? **URL:** \ **Category:** Factual Questions\ **Created:** [November 11, 2010, 3:46pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316 "2010-11-11T15:46:06Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [November 11, 2010, 3:46pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/1 "2010-11-11T15:46:06Z")
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? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 11, 2010, 3:53pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/2 "2010-11-11T15:53:41Z")
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. ---
**Author:** ![Malacandra](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Malacandra](https://boards.straightdope.com/u/Malacandra)\ **Post date:** [November 11, 2010, 3:58pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/3 "2010-11-11T15:58:44Z")
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. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [November 11, 2010, 4:03pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/4 "2010-11-11T16:03:58Z")
Consent can be a defense to assault, yes (otherwise martial arts classes would be illegal ;)). The specific statute in my state is: > [@](#): > > Sec. 22.06. CONSENT AS DEFENSE TO ASSAULTIVE CONDUCT. (a) The victim’s effective consent or the actor’s reasonable belief that the victim consented to the actor’s conduct is a defense to prosecution under Section 22.01 (Assault), 22.02 (Aggravated Assault), or 22.05 (Deadly Conduct) if: > > (1) the conduct did not threaten or inflict serious bodily injury; or > > (2) the victim knew the conduct was a risk of: > > (A) his occupation; > > (B) recognized medical treatment; or > > (C) a scientific experiment conducted by recognized methods. > > (b) The defense to prosecution provided by Subsection (a) is not available to a defendant who commits an offense described by Subsection (a) as a condition of the defendant’s or the victim’s initiation or continued membership in a criminal street gang, as defined by Section 71.01. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [November 11, 2010, 4:05pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/5 "2010-11-11T16:05:45Z")
> [@Malacandra](#): > > Of course we can assume that no-one in their right mind consents to being assaulted 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. ---
**Author:** ![Blake](https://avatars.discourse-cdn.com/v4/letter/b/a9a28c/32.png) [@Blake](https://boards.straightdope.com/u/Blake)\ **Post date:** [November 11, 2010, 4:08pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/6 "2010-11-11T16:08:14Z")
> [@Skald\_the\_Rhymer](#): > > Under what circumstances is consent a defense to assault, for example? 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. > [@](#): > > My thought is that it can’t be a defense to murder; am I right there? 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. ---
**Author:** ![Noone\_Special](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/noone_special/32/2863_2.png) [@Noone\_Special](https://boards.straightdope.com/u/Noone_Special)\ **Post date:** [November 11, 2010, 4:17pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/7 "2010-11-11T16:17:41Z")
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) ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [November 11, 2010, 4:52pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/8 "2010-11-11T16:52:16Z")
As usual _[the Family Circus](http://img831.imageshack.us/img831/1828/328ze.jpg)_ has already covered this ---
**Author:** ![Annie-Xmas](https://avatars.discourse-cdn.com/v4/letter/a/ecc23a/32.png) [@Annie-Xmas](https://boards.straightdope.com/u/Annie-Xmas)\ **Post date:** [November 11, 2010, 5:01pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/9 "2010-11-11T17:01:09Z")
Then there was the case of the guy who was [voluntarily cannibalized](http://boards.straightdope.com/sdmb/showthread.php?t=174724) ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [November 11, 2010, 5:15pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/10 "2010-11-11T17:15:10Z")
Consent of the owner of the goods taken would also be a valid defense to a charge of theft. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [November 11, 2010, 5:19pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/11 "2010-11-11T17:19:45Z")
> [@Giles](#): > > 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. ---
**Author:** ![Swords\_to\_Plowshares](https://avatars.discourse-cdn.com/v4/letter/s/b38774/32.png) [@Swords\_to\_Plowshares](https://boards.straightdope.com/u/Swords_to_Plowshares)\ **Post date:** [November 11, 2010, 5:40pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/12 "2010-11-11T17:40:07Z")
Anything involving strict liability, then? ---
**Author:** ![shefDave](https://avatars.discourse-cdn.com/v4/letter/s/77aa72/32.png) [@shefDave](https://boards.straightdope.com/u/shefDave)\ **Post date:** [November 11, 2010, 6:44pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/13 "2010-11-11T18:44:21Z")
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 violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty […]. Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilized.” 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. ---
**Author:** ![Sam\_Stone](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Sam\_Stone](https://boards.straightdope.com/u/Sam_Stone)\ **Post date:** [November 11, 2010, 6:45pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/14 "2010-11-11T18:45:16Z")
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). ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 11, 2010, 11:05pm UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/15 "2010-11-11T23:05:56Z")
> [@Sam\_Stone](#): > > 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. ---
**Author:** ![Isamu](https://avatars.discourse-cdn.com/v4/letter/i/7c8e57/32.png) [@Isamu](https://boards.straightdope.com/u/Isamu)\ **Post date:** [November 12, 2010, 1:41am UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/16 "2010-11-12T01:41:39Z")
R v. Brown was the leading case on this (for my jurisdiction) back (in the dark ages) when I studied law. [http://en.wikisource.org/wiki/R\_v.\_Brown](http://en.wikisource.org/wiki/R_v._Brown) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 12, 2010, 2:23am UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/17 "2010-11-12T02:23:15Z")
In Canada, the lack of consent by the person touched is an element of the offence of assault [Criminal Code](http://laws.justice.gc.ca/eng/C-46/page-6.html#codese:265): > [@](#): > > 1. (1) A person commits an assault when > > (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; . 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](http://en.wikipedia.org/wiki/Todd_Bertuzzi#Steve_Moore_incident) to assault on Steve Moore for attacking him from behind and fracturing three vertabrae in Moore’s neck. Also under Canadian law, a[person cannot consent to be killed](http://laws.justice.gc.ca/eng/C-46/page-2.html#codese:14): > [@](#): > > \*\*Consent to death > > 1. \*\*No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given. ---
**Author:** ![Pierrot\_Le\_Fou](https://avatars.discourse-cdn.com/v4/letter/p/f475e1/32.png) [@Pierrot\_Le\_Fou](https://boards.straightdope.com/u/Pierrot_Le_Fou)\ **Post date:** [November 12, 2010, 2:27am UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/18 "2010-11-12T02:27:31Z")
> [@Whack-a-Mole](#): > > 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. Operation spanner. > **[Operation Spanner](https://en.wikipedia.org/wiki/Operation_Spanner)** > > Operation Spanner was a late-1980s police investigation in the United Kingdom into consensual same-sex sadomasochistic practices. The Metropolitan Police Obscene Publications Squad conducted the inquiry from 1987 to 1990, questioning about 100 gay and bisexual men. > The investigation produced a report naming 43 individuals. The Director of Public Prosecutions charged 16 men with assault occasioning actual bodily harm, unlawful wounding, and related offences for consensual acts in private betwe... ---
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [November 12, 2010, 2:33am UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/19 "2010-11-12T02:33:07Z")
> [@Skald\_the\_Rhymer](#): > > 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. 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? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 12, 2010, 2:45am UTC](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316/20 "2010-11-12T02:45:43Z")
> [@Freudian\_Slit](#): > > 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’](http://www.montrealgazette.com/news/Court+judge+advance+consent/3786976/story.html). [Next page](https://boards.straightdope.com/t/is-the-consent-of-the-victim-a-defense-to-assault-what-about-other-crimes/560316.md?page=2)