Sexual crimes
Sexual assault · Rape
Public order and
damage of property
Public nuisance
Public Order Act 1986
Criminal Damage Act 1971
Malicious Damage Act 1861
Crimes of dishonesty
Dishonesty · Burglary
Robbery · Theft Deception · Deception offences
Handling · Forgery · Blackmail
Computer crime
Theft Act 1968 · Theft Act 1978
Fraud Act 2006
Crimes against justice
Bribery · Perjury · Obstruction
Perverting the course of justice
Other common law areas
Contract · Tort · Property
Wills · Trusts and estates
Evidence
See also Criminal procedure
Law portal
Criminal justice portal


Criminal defenses
Part of the common law series
Insanity · Immunity · Mental disorder
Diminished responsibility
Intoxication · Infancy
Automatism
Consent · Mistake
Duress · Necessity
Provocation · Self defense
False confession · Entrapment
See also
Criminal law and procedure
Other common law areas
Criminal · Contract · Tort ·
Property Wills
trusts and estates Evidence
Portals
Law · Criminal justice

In the criminal law, consent may be an excuse and prevent the defendant from incurring liability for what was done. For a more general discussion, see Dennis J. Baker, "The Moral Limits of Consent as a Defense in the Criminal Law," 11(4) New Criminal Law Review (2008), see also consensual crime.

Generally

A defence 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 or TWOC). 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.

• As an application of parens patriae, for example, minors cannot consent to having sexual intercourse under a specified age even though the particular instance of statutory rape might be a "victimless" offense. In the case of adults, there are similar limits imposed on their capacity where the state deems the issue to be of sufficient significance. Thus, for example, an individual domiciled in a common law state 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). In English law, the Sexual Offences Act 2003 removes the element of consent from the actus reus of many offences, 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.

• Most states have laws which criminalize misrepresentations, deceptions and fraud. These are situations in which a victim may have given apparent consent to parting with ownership or possession of money and/or goods or generally suffering a loss, but this consent is treated as vitiated by the dishonesty of the person making the untrue representations. Thus, while the criminal law is not generally a means of escaping civil obligations, the criminal courts may be able to offer some assistance to the gullible by returning their property or making compensation orders.

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 in the UK, the defence was denied when the injuries caused amounted to a maim (per Hawkins' Pleas of the Crown (8th ed.) 1824^[where?]). Now Lord Mustill in R v Brown (1993) 2 AER at p103 has set the level just below actual bodily harm, unless there was considered to be a good reason. Good reasons include contact sports, such as boxing or mixed martial arts, as well as body modifications. This follows on from R v Donovan (1934) AER 207 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.

R v Wilson (1996), which involved a case where a husband branded his wife's buttocks, upheld that consent can be a valid defence. The act was considered comparable to tattooing, whilst Brown applied specifically to sadomasochism.[1]

Consent to sexual assaults

For sado-masochism, R v Boyea (1992) 156 JPR 505 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 defence". In R v Brown (1993) 2 All ER 75 the House of Lords rejected the defense on public policy grounds (see below). 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) 24 EHRR 39 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, 18 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.

Consent obtained by deception

In R v Clarence (1888) 22 QBD 23, at a time when the defendant knew that he was suffering from a venereal disease, he had sexual intercourse and communicated the disease to his wife. Had she been aware, she would not have given her consent. The defendant was convicted of inflicting grievous bodily harm contrary to section 20 of the Offences Against The Person Act 1861. On appeal the conviction was quashed. Mr Justice Willis said:

...that consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law.

Mr Justice Stephens had said (at p44):

...the only sorts of fraud which so far destroy the effect of a woman's consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act. Consent in such cases does not exist at all because the act consented to is not the act done.

Until recently, the case has never been challenged, but its current status was complicated by the then general assumptions that "infliction" required some act of violence, and that non-physical injuries could not be inflicted and so were outside the scope of the Offences Against the Person Act. Now the ruling in R v Chan-Fook (1994) 1 WLR. 689 which held that psychiatric injury could be ABH, has been confirmed by the House of Lords in R v Burstow, R v Ireland (1998) 1 CAR 177. These cases overrule the implicit ratio decidendi of Clarence that non-physical injuries can be injuries within the scope of the Offences Against the Person Act and without the need to prove a physical application of violence, Lord Steyn describing Clarence as a "troublesome authority", and, in the specific context of the meaning of "inflict" in section 20, said expressly that Clarence "no longer assists".

This left the issue of fraud. In R v Linekar (1995) QB 250, a prostitute stated the fact that she would not have consented to sexual intercourse if she had known that her client was not intending to pay, but there was no fraud-induced consent as to the nature of the activity, nor was the identity of the client relevant. In R v Richardson (1998) 2 Cr. App. R. 200, the patient believed that she was receiving dental treatment which otherwise would have given rise to an assault occasioning actual bodily harm, from a dentist who had in fact been struck off the register. The Court held that the identity of the defendant was not a feature which, in that case, precluded the giving of consent by the patient. In R v Navid Tabassum (May, 2000)[1] the three complainant women agreed to the appellant showing them how to examine their own breasts. That involved the appellant, himself, feeling the breasts of two of the women and using a stethoscope beneath the bra of the third woman. Each of the three women said that they had only consented because they thought the appellant had either medical qualifications or relevant training. He had neither. There was no evidence of any sexual motive. He was convicted on the basis that the complainants had only consented to acts medical in nature and not to indecent behaviour, that is, there was consent to the nature of the act but not its quality. In R v Cort (2003) 3 WLR 1300, a case of kidnapping, the complainants had consented to taking a ride in a car, but not to being kidnapped. They wanted transport, not kidnapping. Kidnapping may be established by carrying away by fraud. "It is difficult to see how one could ever consent to that once fraud was indeed established. The 'nature' of the act here is therefore taking the complainant away by fraud. The complainant did not consent to that event. All that she consented to was a ride in the car, which in itself is irrelevant to the offence and a different thing from that with which Mr Cort is charged.