Consent (criminal law)

While criminal law is defined on a country-by-country or state-by-state basis, consent generally occurs when an individual willingly agrees to an action proposed by someone else. If no agreement has been reached, then the action may infringe upon individual rights and may lead to criminal proceedings. Consent requires both reason and deliberation, and individuals who are deemed not to have the intellectual ability to reason, deliberate, and understand consequences are incapable of giving legal consent to an action. Likewise, consent given under duress or while temporarily incapacitated is not acceptable within the context of criminal law.

The concept of consent gained increasing attention in the final decades of the twentieth century as the global women’s rights movement spread. At that time, issues such as sexual consent under the influence of alcohol or drugs gained prominence, especially as the use of date-rape drugs became more common. Countries and states also re-examined laws identifying the age at which a person had the legal right to consent to intercourse, and the issue of spousal rape was heavily debated.

Background

Throughout history, courts have struggled with specifying acceptable levels of consent in a wide range of cases dealing with everything from contact sports to body modifications such as plastic surgery, body piercing, and tattooing. Lines have been more clearly drawn in cases involving sex and violence, when courts have been much more likely to balk at accepting an individual’s right to consent to being physically harmed, even within a consensual sadomasochistic context.

According to English common law, on which US federal law and the law of forty-nine states is based, rape was defined as sexual intercourse occurring in combination with force and without consent.

Courts in the twenty-first century increasingly deal with cases involving withdrawal of consent after it has initially been granted. Women’s rights advocates argue that a woman retains the right to withdraw consent at any time, and they insist that continuing intercourse after that refusal meets the legal definition of rape.

Within the United States, a close reexamination of rape laws began in 1962 when the American Law Institute created the Model Penal Code in an attempt to standardize criminal law throughout the United States. The following year, the publication of Betty Friedan’s The Feminine Mystique (1963) helped to launch second-wave feminism. By the following decade, feminists and victims’ rights advocates had begun working with the legal community to redefine the social understanding of rape and its impact on victims. These changes occurred simultaneously with the sexual revolution brought on by the creation of the birth control pill and the increasing acknowledgment that women could be active rather than passive sexual partners. However, lawmakers have not always been able to reconcile the right to free sexual expression with the violent acts that can be integral to sexual expression for some people, as in the BDSM (bondage, discipline, sadism and masochism) community.

Overview

When lawyers and courts deal with cases of rape, consent is of major relevance. In most other criminal cases, such as robbery, it is not necessary to deal with whether or not a victim consented to the action. Exceptions occur in some minor cases involving assault and battery, and courts have been known to consider the issue of consent as a viable defense. Exceptions to the consent requirement may be made in cases where the victim was not physically injured and was not threatened with physical harm. Participation in situations such as sporting events in which physical injury is a known risk also negates the need for explicit consent, as do cases in which the alleged victim benefitted from the action of the accused.

From a legal standpoint, consent may be explicitly stated or implied (as in the case of participation in contact sports). However, to constitute a defense, consent must have involved conscious agreement to an action. Laws generally specify that three aspects of consent must be met to qualify as legitimate consent. First, consent must be based on voluntary agreement. However, individuals do not always have the right to consent. No individual has a legal right to consent to incestuous sexual intercourse or intercourse if they are under a certain age. Whether granting consent is the result of being afraid of the consequences of not consenting is also a major issue. According to contemporary laws, if a victim consents only under threat, they have not actually given consent.

The second aspect of legal consent is that it takes place only when mental capacity has not been diminished. Those incapable of giving consent include those with intellectual disabilities, those who are drunk or who have been drugged, those who are unconscious, and any minor below the legally specified age of consent.

Third, the presence of fraud or error may preclude consent. Consent becomes a major issue in cases where individuals have consented to grant ownership of money, goods, or property in response to fraud. Cases of this type are often brought before both criminal and civil courts, since each court deals with the case from a different perspective. The intent of the criminal court is to punish crimes against the state that involve the breaking of specific laws. Civil courts, on the other hand, deal with perceived mistreatment of individuals who are often intent on receiving compensation or recovering lost property.

In the twenty-first century, courts continue to deal with the issue of consent in rape cases resulting from, according to one interpretation, men’s sense of entitlement to women’s bodies. It remains common for courts to have to determine whether rape has occurred when sexual intercourse occurs with a woman who is drunk, drugged, or even unconscious. In June 2016, Brock Turner, a former Stanford University swimmer, served just three months in prison after he received a six-month sentence for the rape of an unconscious woman during a fraternity party. The case resulted in a major backlash, and feminists and victims’ advocates demanded reforms of rape laws and called for increased mandatory minimum punishments.

Bibliography

Ashworth, Andrew, and Jeremy Horder. Ashworth’s Principles of Criminal Law. 10th ed., Oxford UP, 2022.

Barclay, Katie. "From Rape to Marriage: Questions of Consent in Eighteenth-Century Britain." Interpreting Sexual Violence, 1660–1800, edited by Anne Leah Greenfield, Pickering, 2013, pp. 35–44.

"The Consent Defense in Criminal Law Cases." Justia, Oct. 2024, www.justia.com/criminal/defenses/consent. Accessed 15 Dec. 2024.

Craig, Elaine. “Capacity to Consent to Sexual Risk.” New Criminal Law Review, vol. 17, no. 1, 2014, pp. 103–34, doi.org/10.1525/nclr.2014.17.1.103. Accessed 15 Dec. 2024.

Herring, Jonathan. Criminal Law: Text, Cases, and Materials. 8th ed., Oxford UP, 2024.

Kaplan, Margo. “Sex-Positive Law.” New York University Law Review, vol. 89, no. 1, 2014, pp. 89–164, www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-89-1-Kaplan.pdf. Accessed 15 Dec. 2024.

Lyon, Matthew R. "No Means No: Withdrawal of Consent during Intercourse and the Continuing Evolution of the Definition of Rape." Journal of Criminal Law and Criminology, vol. 95, no. 1, 2004, pp. 277–314.

Stephen, James Fitzjames. A History of the Criminal Law of England. Vol. 2, Routledge, 1996.