Consent in criminal law

Criminal law refers to the rules whose common characteristics translate to severe punishment for a failure to comply. Criminal law carries in itself severe consequences whenever a failure to abide by its rules is detected. The punishment against a criminal law may include execution, loss of liberty or fines imposed on the lawbreaker. It may also involve physical torture or even capital punishment for serious criminal activities, which are otherwise referred to as felony. It is also a point worth noting that each crime is made up of criminal elements and thus judgment is expected for the offence. The criminal law generally prohibits undesirable deeds. Thus, proof of a crime requires proof of some act. The goal is to repair, through state authority, any hurt inflicted on the victim by the offender (MacKinnon, 2001,103).

Defense may be taken as the introduction of new content bearing arguments that even if the allegations against the defendant may be true; the said defendant is entitled to prevail for other reasons. It is thus concept for the factual circumstances that if proven will end the case in favor of the defendant.  Defense in its broad perspective will therefore be the facts and laws not raised by the complainant and thus require the immediate dismissal of the defendant once pled and proven even if the allegations against him are true. Every citizen has got a right of defense for it is only defense that recognizes that there may be situations of urgency that a person is allowed to respond by breaking the law. This is only in cases where the urgency is perceived to be an immediate threat to human life and therefore necessitating the crime through a sense of reason.

Consent on other hand is an act of reason that revolves around the exercising of sufficient mental capabilities in making an intelligent decision. It is a voluntary agreement and therefore recognizes and permits the existence of a transaction. A defendant may decide to seek defense by arguing that because of consent a crime was not committed. Consent in some cases though may not have guaranteed effects especially in those cases involving severe injuries or rather the kind of deliberate infliction of bodily harm with or with out a purpose. This is violence and can thus be termed and treated as crime.  It is some times an issue   worth debating so as to determine whether to use consent of violence in a court of law and to weigh the extend to which the victims consent can become ineffective. The crimes in which consent is a defense in most parts fall under two categories; rape and other sexual offences and crimes against property (Estrich, 1987,56)

Consent gives birth to criminalized activities through victimizing individuals irrespective of their informed consent. In this situation the question of how genuine the consent is matters most.  It may how ever not apply if the participant or one of the participants is mentally affected, addicted, unconscious or intoxicated. The law might also take a case that should be termed as murder and excuse the criminal of the criminal activity. The general law has it that if a person chose to break the law by knowingly taking the life of another then conviction would be the consequence. In some communities though, killing can be morally accepted and thus termed as ’’justifiable’’ depending on the situation of the occurrence for example killing a person caught in the act of burglary may be said to be justified (Police Service Handbook (NSW Police Service, 2000)                                 A sense of individual consent may revolve around practices such as body alteration where by an individual willingly and knowingly decides to undertake a permanent or a semi permanent alteration of his/her body not for medical reasons but for personal purposes such as tattooing and ear piercing. The victim already understands or is made to understand the implications for the alterations he/she is about to undertake but eventually decides to pursue the exercise (Estrich, 1994, 98). In a court of law, one may be charged with mutilation and disfigurement through an attempt to change the natural even though the surgery may have been done through the consent of the victim, the defendant may be charged on cases of inflicting pain through torture and damaging the natural creation. This case illustrates a situation where consent may not be used as defense in a court of law.

Law enforcers otherwise referred to as police officers are permitted by the law to apply excessive force where necessary for the purpose of protecting the innocent from any harm. This force may be to the extend of taking the victims life.  The law enforcers may also kill the assailant if he/she is considered dangerous or for self defense. However the assailant’s intention to commit the crime should be clear and the defendant must have no alternative way or means of controlling the victim.  The killing   though, shall in this case be termed as justifiable homicide. The question that may arise in the law court shall be on why the defendant believed that it was logical to act   for self-defense and whether the challenge was worth killing.

Individual autonomy versus the rule of law is a major conflict that is evident. The defendant is faced by a challenge on what to term as worth. This has happened in cases where the victim has fully and freely given consent to the defendant. Consent on maters of violence causing bodily harm should however not be used as defense in a court of law. This is because pain and injuries has already been inflicted and may be to some extending of maiming the plaintiff. (Atkinson, J. (2006)

In the wider society, violence was considered crime under the common law. Consent was therefore no defense and was never to be used to justify offenses done against human rights. The victim was considered only   a witness even if he did not complain. There could how ever be legal rights to cause injuries. This is a right bestowed on doctors and medial practitioners and it gives them the authority to seek patient’s consent before any necessary treatment involving surgery to preserve life. There may be some exceptions when an urgent action has to be taken to save a life. A right to cause an incidental right may also be accepted in games. Every sport has got to create a sense of fun to the player. Some games may seem or appear violent but to   a certain degree.   The victim is already aware of the risks involved in the game but then through his consent takes to run them (the risks). This however is not meant to defy the rules governing that sport. (Solomon R,2006)

With regard to consent on sexual activities the Age of consent has also been a major issue in the world today. It is the age at which an individuals concern to be involved in sexual. Activities can be termed lawful. It is thus an offense to have a sexual encounter with underage Different countries have got their own laws on what age in the growth of a child he she can consent to have sex. There are however areas of compromise in the recommended defense to this criminal charge is not available to those above 18 years of age.  Age of consent may be considered to limit ones sexual freedom but considering it in the wider sense it’s a kind of helping them develop their emotional and psychological abilities. Different children develop and mature at different rates so any given age limit could be too high for some or too low for others.  It is thus old fashioned to restrict our young people from having sexual encounters for it is through this that they become aware of the pros and cons of a safer affair. A Child’s free will and individual autonomy should be considered of a greater essence   If we restricted them therefore from sex it would also be logical to issue threats of criminal prosecution and a criminal sentence too. Otherwise the criminal law would be useless if it did not put forth an idea of protecting child molestation, public order and decency. Consent in the sexual context undermines sexual equality.  Sex in some cases has been perceived and treated as a sport. Just like in sports, there are no legal doctrines safe guarding female parties from severe sexual aggression from their male counterparts there has been psychical and acts of violence that disqualify the act of mere intercourse to, grading it a rape.  Rape is a forceful act of having a sexual encounter with an individual who is perceived as the weaker party of the two. There is however no gauge on what excessive force could be but the weaker party’s level of resistance determines it all. In the criminal law though sex and violence are distanced but in the event of rape these two intermarry. (Wang C, 2000 Oct;13(4):293-8).

 Domestic violence has risen in the recent days and it’s mainly the female party that suffers the law together with its enforcers should gear their efforts on criminalizing domestic violence and attaching severe punishment to those who break it. It is through this that a clear distinction between sexual physical violence and acts of intimacy. A woman’s consent to a sexual activity is not supposed to imply consent to sexual harassment. There should be fair play and should thus not involve violent domination aimed at humiliating and dehumanizing the woman.

Sexual violence gives an overview of the existing relationship between the power and the powerless, masculinity and feminity in love relationships where Physical, psychological as well as verbal torture has been seen to exist. It is in these situations where suffering and pleasure have been seen to co exist but only lacking mutual exclusiveness (McCutcheon, 1994, 43).

Some people may decide to use consent as an excuse to avoid liabilities that may be attached to the crimes committed. In such cases there fore defense through consent should be made the final option. The law should thus not be too lenient and should only allow consent in circumstances where the victim should have foreseen the consequences and analyzed the implications of the occurrence. Consent in more than one ways may deny justice to a law-abiding citizen giving an unfair advantage   to the lawbreakers.

Consent may not be a justification for the legitimacy as of equal importance for example; employing children, selling drugs to them   is an offence in most countries whether on not the child consents.  Here the child is considered not as a perpetrator but as a victim. The mandate is therefore left for the society to understand that consent by a child should not be taken as a means of legalizing unlawful deeds on minors (Crimes Acts 562DA, Sect 3).

Criminals are a group that already has taken an advantage in an unrightful manner. This consequently, the criminal law should put criminals at some unpleasant disadvantage. People submit to the law to seek to receive the right already misused by the criminals. Accepting consent as defense might give the criminal an undue benefit

At what level one’s consent to criminal violence should be applied is still a major issue. There are no set rules as to when consent to violence is applicable. Consent is always questionable in the corridors of justice and even in the systems of criminal justice. The law therefore guarantees individual freedom to matters of sexuality but issues strict warning on those who inflict serious bodily harm to their partners in search of their own pleasures.

It would be unreasonable to hold, that if a stranger tears off the seals from a deed without the privity or consent of the person to whom it belongs, the owner should lose all remedy upon it; whereas, if the stranger proceeded further and utterly destroyed it, his remedies would not be in any degree prejudiced, as he might give secondary evidence of its contents, and recover upon it. (MacKinnon, 2001, 67).  This law however failed to recognize the facts underlying the real ownership. Force has been used in the protection of property but the law has discouraged the use of excessive force on the same unless it’s on a self-defense mission. Some countries have it that the level of the force should depend on the circumstances surrounding crime in cases involving a threat to both property and life then this requires a more powerful defense

As a matter of general conclusion therefore, consent has been recognized by all criminal laws in the world but more important is the extent to which it’s applicable. Several factors have so far been highlighted on cases that allow consent as a defense such as in medicine and sport and how implied consent together with criminal consent form an integral part in the global laws. Within the criminal law therefore, failure to consent attributes to significant difficulties however most of these are a cause from misunderstandings arising from judges and law interpreters. It is therefore left to the law makers to ascertain the conditions under which consent can be used in certain jurisdictions.

References

Atkinson,  (2006) Private and Public Protection: Civil Mental Health References

Anderson, J. Violence in sport and the criminal law. Irish Student Law Review.

Crimes Act 562D (3).

Estrich, S. 1994. “Rape: A Question of Fear.” USA Today, 11 August 1994, p.13.

Estrich, S. 1987.  Real Rape.  Cambridge, MA: Harvard University Press.

Holmes-R, Wills C., Improving informed consent: insights from behavioral decision research, Med Care. 2002 Sep;40 (9 Suppl):V30-8.

McCutcheon, J  (1994). Sports violence and the criminal law. .

MacKinnon, C.  2001.  Sex Equality: Rape law.  New York, NY:

Foundation Press.

Police Service Handbook (NSW Police Service, 2000)

Solomon R., Ethical issues in medical malpractice, Emerg Med Clin North Am. 2006 Aug;24(3):733-47.

Wang C, Huch M., Protecting human research subjects: an international perspective, Q. 2000 Oct;13(4):293-8.