Some criminal defenses are very difficult to establish without testimony from the defendant. Consent is one such defense. The defense of consent doesn't dispute that a criminal act took place; rather, it states that the conduct was permitted by the victim.

Consent to Bodily Harm

When conduct is charged to be a criminal offense because it causes or threatens bodily harm, consent can be a defense to such conduct or to the infliction of such harm if:

  • The bodily harm in question isn't serious; or
  • The conduct and the harm was a reasonably foreseeable consequence of the joint participation in an athletic contest; or
  • The consent amounts to justification for the conduct.

Ineffective Consent

Allowing criminal conduct to occur doesn't constitute consent if:

  • The consent is given by a person who is legally unable to authorize the conduct in question; or
  • The consent is given by a person who by reason of youth, mental disease or defect or intoxication is unable or known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or
  • The law prevents the victim from giving consent; or
  • The consent is induced by force, duress or deception of a kind that is prohibited by law

Proving Consent

The defense of consent is recognized in almost every jurisdiction. If lack of consent is an element to the crime charged, the defense attorney should attempt to show that the victim consented to the conduct in question. If bodily harm is involved, the defense attorney should show that there was consent to the bodily harm and that it wasn't serious. If the harm resulted from participation in an organized activity, the defense attorney should show that there was joint participation in the activity, the activity was lawful and the harm was reasonably foreseeable from the activity.

In any case, consent must be shown to be given by a person who was legally competent to give it, old enough and smart enough to make a reasonable judgment, not given by a person that is protected by the law in question and not induced by force, duress or deception.

Questions for Your Attorney

  • What is considered "serious bodily harm?"
  • Is consent a potential defense to the crime I am charged with?
  • Have you ever successfully defended a case on the ground of consent?