Consent (criminal Law) - Generally

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 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.

• 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 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.