Private Authorisation and Public Censure: Negotiating the limits of consensual harm

Abstract

The potential relevance of consent to the criminal law spans property offences such as theft and criminal damage, and sexual and non-sexual offences of violence, in each of which the consent of the 'victim' may operate to vitiate the prima facie liability of the defendant. A considerable body of legal doctrine has developed around consent, particularly in relation to the way in which it is construed, and the conditions under which apparent consent will translate into legal force. For instance, minimum age requirements might pertain in order for a person's consent to be considered legally relevant, or there may be numerous other demands relating to capacity. Where coercion or deception is used in order to procure apparent consent, this may be deemed invalid, echoing the maxim that 'every consent involves a submission; but it by no means follows that a mere submission involves consent'. In the case of consensual physical harm, the availability of consent has proven problematic; that is, what level of consensual harm can be inflicted lawfully, and in what circumstances. This difficulty stems from an inherent dichotomy that underlies consent' s relation to the criminal law: the significance of consent depends upon the private authorisation of the victim in order to excuse or justify what would otherwise amount to a public wrong. This chapter looks at this dichotomy in the context of offences of non-sexual violence, and appraises some of the organising principles that have been propounded as a means by which to negotiate the resultant tensions.