Some forms of conduct that would normally constitute a criminal offence are not crimes if the person affected has consented. Is this a sensible position for the law to have adopted?

This essay argues that this is not a sensible position for the law to have adopted because it may lead to various atrocious conducts occurring without repercussions. This essay will outline two main reasons. First, the consent issued may have been made under undesirable or unsafe circumstances. Second, consent should not constitute a strong enough defence to a criminal offence. 

Inability of the consentee to make informed consent 

Many contend that some forms of conduct should not constitute criminal offences if the person affected has consented because in these situations, individuals have given their informed and rational permission for the conduct to be carried out. For instance, in a boxing match, any action exhibited would not constitute the criminal offence of battery, since the two fighters consented to the fight. Therefore, it can be argued that if the individual affected by the conduct has both consented and not objected to the conduct in any way, it should not be deemed a criminal offence. 

Despite this, it can be argued that consent should not be a viable defence to criminal offences as the consentee might have given consent under duress circumstances. For instance, an individual may not have been of sound mind when consenting. So, for example, that individual may not have been properly informed of the nature of the conduct, or perhaps may not have thought about the consequences or future ramifications of it. Hence, if the individual carrying out the conduct was aware of this, and therefore took advantage of the consentee’s imbalance and uncertainty of mind, then that conduct should be able to be criminalised. For example, in a case where a woman consented to having sexual relations with a man, she later discovered that he had not informed her about a sexual infection he had. This is an example of an individual carrying out a conduct whilst deliberately withholding information from the consentee. Moroever, another possibility is that the individual consenting may have been pressurised by that individual to give consent, or forced to through torture or drugging. This should immediately render the consent given invalid. And therefore, any conduct carried out whereby consent has been given under undesirable circumstances should still constitute a criminal offence. 

Consent should not be a feasible defence

Furthermore, it can be said that this legal position is irrational, because consent should not be a strong enough defence to a criminal offence. For instance, in the case of R v Brown, a group of sadomasochists tortured and branded their victims with hot irons. However, these victims had consented to these actions out of their own free will. And so, the sadomasochist group attempted to use the fact that their victims consented to the conduct as a defence. This case exemplifies that consent should not be a defence, as a criminal offence has still been committed, and victims were hurt. Moreover, the definition of a criminal offence is an action carried out against the state. And so, if an individual’s conduct is clearly one against the state, and results in an individual being harmed or endangered, even if consent is issued, it should still constitute a criminal offence. 

However, it may be argued that because of the right to liberty everyone has under the European Convention of Human Rights Article 5, consent should alleviate a criminal offence. It can be argued that since everyone has this fundamental right, consenting to a conduct is out of free will and liberty. So, someone carrying out said conduct should not be found guilty of a criminal offence, as this is violating the victim's right to liberty protected under both the Human Rights Act and the European Convention of Human Rights. On the other hand, it can be said that by not criminalising an offence that would usually constitute a criminal offence just because consent has been issued, it is a violation of Article 3 of the European Convention of Human Rights. This is our right to freedom from torture as well as degrading and inhumane treatment. So, consent that may have been given under pressure and torture is violating this right. 

In conclusion, it seems to be that this position the law has adopted is not sensible. This is since, by taking this stance, the law is not preventing atrocities that may still be carried out where consent issued may have been done so under dire conditions.