Essay On Consent In Criminal Law

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1 Introduction Consent can be defined as voluntary agreement, compliance or permission. Consent is a unilateral act, and so consent may be withdrawn by one person. People are allowed to “waive their legal rights” if they choose to do so. This would mean that the victim, by consenting to suffer harm, excuses the wrongful conduct of the person who has inflicted the harm and thereby excuses him/her of being held liable. The principle of volenti non fit iniuria applies, he who consents cannot be harmed. However, the State does not always recognise that consent. The State does not only care for the individual but also for the community, and so has an interest in the welfare of all people. The State may act paternalistically. People are allowed consent to a crime, such as physical harm, against themselves but only under certain circumstances. The general law followed in criminal law is that…show more content…
Consent can either always be recognised, never recognised or sometimes be recognised as a ground of justification. Consent always recognised is where if consent is given the accused can never be charged with that crime. The law should reflect the victim’s choice to consent as a legitimate excuse of individual autonomy. For example, property crimes with consent will not result in theft or malicious damage to property. Consent that is never recognised as defence is identified as ‘paternalism’. This is where the State does not allow any form of harm. For example, in cases of statutory rape or assisted suicide, whether or not the accused gave consent is irrelevant. The last approach is where consent is sometimes recognised as a ground of justification, whether consent would be recognised depends on the seriousness and purpose of the bodily injury as well as the legal convictions of the community. 4 False pretences and fraudulent means to obtain

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