Consent (criminal law)

In criminal law, consent may be used as an excuse and prevent the defendant from incurring liability for what was done.

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 taken without owner's consent). 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.

The problem has always been to decide at what level the victim's consent becomes ineffective. Historically in the UK, the defense was denied when the injuries caused amounted to a maim (per Hawkins' Pleas of the Crown (8th ed.) 1824). In R v Donovan (1934) AER 207 in which Swift J. stated the general rule that:

However, consent is valid in a range of circumstances, including contact sports (such as boxing or mixed martial arts), as well as body modifications. But in the context of sadomasochism, Lord Mustill in R v Brown (1993) has set the level just below actual bodily harm. 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.

The issue of consent in the course of sado-masochistic sexual activity was considered in R v Stein [2007] VSCA 300, a case in which a participant died as a result of being gagged. The court held that, even if the victim had consented to a being restrained and gagged, his consent was invalid because there was no way for him to communicate its withdrawal once the gag was in his mouth.

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