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 The PhilosophicalFoundations of
Consent in the Criminal Law
PAUL ROBERTS*

Introduction: Consent and the Law Commission

Consent and Offences Against the Person, the Law Commission's first consultation
paper on consent and criminal liability' published in February 1994, was not a
critical success. Commentators found its analysis superficial2 and its proposals
for reform 'trapped by the concepts and categories of the past'.3 Consent and
Offences Against the Person was a slim volume of seventy-one pages, the greater
part of which was given over to an essentially descriptive review of the House of
Lords' decision in Brown4 and its impact on a century's criminal law jurisprudence
governing consensual injury.' Short on critical edge and virtually devoid of
theoretical depth, the first consultation paper was metaphorically as well as
literally lightweight. It did, however, succeed in eliciting a large number of
well-informed responses from a broad range of organizations and individuals
concerned about particular aspects of the relationship between consent and
criminal liability. Many of these responses are helpfully reproduced in the
Commission's second consultation paper, Consent in the Criminal Law,6 which
was published in December 1995. Readers of this second paper cannot fail to
notice that in several important respects it represents a substantial improvement
on its predecessor. Consent in the CriminalLaw tips the scales at 290 pages, in
which can be found substantial passages of analysis informed by an awareness
of the conceptual complexity and practical challenges confronting the aspirant
* Department of Law; University of Nottingham. Portions of this article were presented at the 'Consent is no
Crime' conference organized by Countdown on Spanner which took place at the Institute of Contemporary Arts,
London in May 1996, and at a Nottingham Trent University staff seminar the following October. I am grateful
to participants at both events whose comments, questions and constructive criticism have helped me to improve
the final text, and to John Gardner, for permission to quote from unpublished material.
Law Commission Consultation Paper No 134, Consent and Offences Against the Person (HMSO, 1994).
David Ormerod wrote that 'a major flaw in the Paper appears to be its superficiality. There are many issues
which are not considered, and of those thatare, there isoften insufficient depth of discussion.... [Miost crucially,
there is no discussion of any underlying rationale in relation to consent.' David Ormerod, 'Consent and Offences
Against the Person: Law Commission Consultation Paper No 134' (1994) 57 MLR 928, at 928, 940.
Roger Long, 'Consent and Offences Against the Person: Law Commission Consultation Paper No 134' [1994]
CriniLR 480, at 480, 487.
R v Brwn; Lucas,;J.aggard;Laskey and Carter [1994] 1 AC 212 (HIL).
The principal authorities being Coney (1882) 8 QBD 534; Donovan [1934] 2 KB 498 (CCA); and Attorney
Gnwral Reference (No 6 of 1980) [1981] QB 715 (CA).
" Law Commission Consultation Paper No 139, Consent in the CriminalLaw (HMSO, 1995).
Oxford University Press 1997 Oxford Journal of Legal Studies Vol 17, No 3
390 Oxford Journal of Legal Studies VOL. 17

law reformer in this chapter of the criminal law. It is a kind of compliment to

the research and reflection that have obviously gone into the production of
Consent and the CriminalLaw that the Commission was obliged to extend the
consultation period by some six months to give consultees more time to get to
grips with such a weighty publication.
This article makes no pretence to be a comprehensive or even a fair review of
Consent and the Criminal Law in its entirety.7 I will say nothing more about the
Commission's illuminating conceptual exploration of the capacity to consent
(Part V) or its detailed treatment of the effects of fraud, force, threats and
mistakes on apparent consents (Part VI). The Commission's willingness to
contemplate the bold proposal that a mistaken belief in consent should only
negate mens rea if based on reasonable grounds (Part VII), reversing DPP v
Morgan,8 will not be given the approbation it deserves.9 I will not even pause to
criticize the Commission's flirtation with the notion that defendants who set up
a 'defence' l ° of consent should shoulder the probative burden of proof on
that issue (paras 4.41-4.45), a dalliance which I think both unnecessary and
misconceived." And as for the Commission's approach to particular forms and
instances of consensual harm, including medical and surgical treatment (Part
VIII), circumcision, tattooing, cosmetic piercing, branding and scarification (Part
IX), religious flagellation and sado-masochism (Part X), lawful correction (Part
XI), sports, games, martial arts and dangerous exhibitions (Parts XII & XIII),
and fighting, horseplay and public disorder (Part XIV), the reader is referred to
the Paper itself, with an assurance that it will repay close study. In this article I
want temporarily to suspend interest in these substantive matters in order to
explore a set of issues which arguably have a prior claim on our attention. I refer
to the Paper's methodology, the structure of its arguments and the role (or

7 For general overviews see Stephen Shute, 'Something Old, Something New, Something Borrowed: Three
Aspects of the Project' [1996] Grim LR 684; D. C. Ormerod and M. J. Gunn, 'Consent-A Second Bash' [1996]
Grim LR 694; Andrew Ashworth, 'The Revisiting of Consent' [1996] Grim LR 73; Andrew Rutherford, 'Consent
in the Criminal Law' [1996] 1 Archbold News 4.
8 [1976] AC 182. For the case against Morgan see Celia Wells, 'Swatting the Subjectivist Bug' [ 1982] Crim LR
209; and Seremy Horder, 'Cognition, Emotion and Criminal Culpability' (1990) 106 LQR 469.
9 The Commission confides that '[w]e have not yet reached even a provisional conclusion on these very difficult
issues', (para 7.7) but its willingness to regard forms of inadvertence as criminally culpable will be applauded in
some quarters as a welcome if unexpected departure from the Commission's usual preference for advertent/
'subjective' culpability requirements; see, eg, Shute, above n 7 at 685-9. It is tolerably clear that the Commission
has in mind a distinction between criminal indifference and 'mere' negligence of the type advocated by, amongst
others, R. A. Duff, Intention, Agency and Criminal Liability (Blackwell, 1990). Unfortunately, as Stephen Shute
observes (above n 7 at 688-9, discussing para 7.21), the Commission chooses a poor example to illustrate the
distinction.
10 See Shute, above n7 at 689-91. In Brown (at 246h-247a) Lord Jauncey said that '[i]f it were necessary,
which it is not, in this appeal ... I would hold that consent could be a defence to assault but that lack of consent
was not a necessary ingredient in assault'. Against this, it is submitted that by setting up a 'defence' of consent
the Brown defendants were actually denying having perpetrated any wrong to which criminal liability could attach.
They were saying that the prosecution had failed to prove an essential element of the acnus r=us of the relevant
offences against the person, rather than pleading a criminal law 'defence' in the strict sense. See further J. C.
Smith, Smith and Hogan, CriminalLaw (Butterworths, 8th ed 1996) 418.
1 For principled and pragmatic arguments against placing the onus of proof on the defendant see Paul Roberts,
'Taking the Burden of Proof Seriously' [1995] Grim LR 783; and for disturbing empirical evidence of the prevalence
of onus-reversing statutes, see Andrew Ashworth and Meredith Blake, 'The Presumption of Innocence in English
Criminal Law' [1996] Grim LR 306.
AUTUMN 1997 Consent in the Criminal Law
absence) of general principles of criminalization within them. In short, this article
is about Consent in the CriminalLaw's philosophical foundations.
What follows is divided into three sections. The first section of the article
demonstrates Consent in the Criminal Law's shallow philosophical foundations
and criticizes the Commission for its failure to construct a principled basis for
its provisional recommendations. To be sure, having attracted similar criticism
the first time around, the Commission immediately set out its stall to do better
at the second attempt:
It is part of the purpose of the present project to identify the principles which ought
to underpin the criminal law in this area, and to recommend appropriate reform if the
present state of the law conflicts with those principles. 2
Yet, I will argue, this aspiration to principled law reform is effectively abandoned
within the next twenty pages of Consent in the CriminalLaw, precipitating a loss of
direction from which the Paper cannot subsequently recover. The Commission's
predicament puts me mind of those two (no doubt apocryphal) metropolitan
day-trippers who lose their way somewhere in rural Norfolk. After what seems
to them an eternity of sharp bends, fords and hedgerows they at last come upon
a leather-skinned farmer leaning over a five-bar gate. They slow, wind down the
car window and call over to the local man: 'Could you tell us how to get back
to the Al, please?' The farmer contemplates these curious city creatures for a
brief time, sucking heavily on his pipe, before delivering his sagacious advice:
'If 'ee were going there, 'ee wouldn't be starting 'ere.' The Commission's point
of departure in Consent and the CriminalLaw is similarly ill-advised and equally
likely to frustrate the Commission's objectives; or so it will be argued here.
The second section of the article advocates an alternative approach to thinking
about criminal law reform, an approach which utilizes three stylized 'philosophical
perspectives'-liberalism, paternalism and moralism-to explore general prin-
ciples of criminalization and their application to the law on consent. I will here
be rehearsing in outline the essential thesis of my paper to the Law Commission
entitled 'Consent and the Criminal Law: Philosophical Foundations', which
itself was substantially reproduced as Appendix C to Consent in the Criminal
Law. The Commission declined to adopt the approach advocated in Appendix
C in the main body of the Paper, but I want now to invite the Commission to
reconsider that decision in the light of commentators' criticisms (including the
criticisms developed below in the first section of this article) which demonstrate
serious shortcomings in the methodology it chose to adopt instead.
This objective is carried forward into the article's third and final section in
which I consider and attempt to rebut a critical challenge to the arguments set
out in Appendix C. Stephen Shute's critique of the Appendix, recently published
in the Criminal Law Review, affords a valuable opportunity for clarifying and
restating certain aspects of the argument which, in retrospect, were left un-
acceptably opaque or inconclusive in the Appendix itself. Providing the Appendix
12 Consnt in te Criminal Law, para 1.11.
392 Oxford Journalof Legal Studies V01. 17

with some much-needed rehabilitation should therefore contribute to this article's

main short-term objective, which is to urge the Commission to reconsider its
basic approach to the philosophical foundations of criminal liability before writing
its final report on consent.

I. A Critique of the Commissions 'Pragmatic'Approach to

Law Reform
The Commission's 'preferred approach' to the philosophical underpinnings of
consent and criminal liability is set out at paras 2.13-2.19 of the Paper. Having
observed that respondents to the first consultation exercise spoke from rival
philosophical standpoints, the Commission confessed its reluctance to adjudicate
on the merits of their arguments: 'it would be quite wrong to bring our own
personal predilections into the equation. Moreover, in the light of the wide
divergences of opinion expressed in the responses to consultation we do not
believe that it would be useful for us to move forward by following what we
assess to be the weight of that opinion one way or another'. 3
Now although these remarks convey an air of modesty and self-restraint,
and demonstrate the Commission's laudable concern to be even-handed and
respectful of respondents' opinions, these admirable virtues become vices when
over-extended. It is entirely proper for a consultation exercise to explore al-
ternative philosophical foundations for law reform initiatives and to present those
alternatives for consideration. However, in order to move forward to the stage
of formulating concrete law reform proposals it is often necessary to choose
between opposing arguments, values and views-points, which themselves may
derive from incompatible philosophical frameworks. Where different philo-
sophical perspectives point the way to their own distinctive prescriptions for law
reform it is impossible to construct draft legislation without coming off the
philosophical fence and relinquishing one's pretensions to neutrality. Even where
rival perspectives argue for the same laws they typically do so for different
reasons. In short, the Commission cannot settle for identifying relevant arguments
and arranging them into a list. Beyond that, the reformer must try to arrive at
reasons for deciding which arguments-and, by extension, which law reform
proposals-are to be preferred. Indeed, the Commission itself seems to recognize
the force of this contention because in the very next paragraph of the Paper we
find, notwithstanding the initial disclaimer, that the Commission has chosen a
particular philosophical orientation to its work, albeit 'an essentially pragmatic
approach'. 4 The Commission explains that it will proceed on the basis of what
it calls 'paternalism softened at the edges' because it judges this to be Parliament's
preferred approach to criminal law reform:

13 Consent in the Criminal Law, para 2.13. Also see Stephen Silber, 'Consent in the Criminal Law' (1996) 52
The Magistrate,60 (April).
14 Consent in the Criminal Law, para 2.14.
AUTU,IN 1997 Consent in the Criminal Law
The decisions that have been made by Parliament or parliamentary committees in
recent years appear to us on examination to be redolent of a paternalism that is softened
at the edges when Parliament is confident that there is an effective system of regulatory
control, whether this is created by a licensing regime, by the standards or ethics of a
profession, or by a species of self-regulation in which Parliament has trust.1"
Observe that the Commission's chosen starting point for its enquiry into consent
and criminal liability-the foundation stone for the argumentative superstructure
erected in the remainder of the Paper-is constituted by two, related claims: (a)
an empirical claim that Parliament and parliamentary committees fashion criminal
law reform around 'paternalism softened at the edges'; and (b) a normative
claim that this brand of paternalism provides firm philosophical foundations on
which to build new criminal law rights and duties. It seems to me that both
these claims are obviously suspect and easily rebutted; and rebutting them is the
principal task for this section, having first clarified some preliminary matters of
terminology.
Nowhere in the Paper does the Commission define what it means by 'pa-
ternalism', nor does it explain how and why the edges of that concept might be
'soft'. We are therefore obliged to make certain assumptions, about which we
had better be explicit. I understand paternalism, broadly speaking, to be the
view that protecting or enhancing a person's welfare can be a good reason for
interfering with that person's autonomy, or, more colloquially, one may interfere
with a person's autonomy for that persons own good. This contrasts with, for
example, the liberal conception of well-being according to which a person's
autonomy should be respected even on occasions when she chooses to damage
her welfare, providing she does so willingly and in full knowledge of the
consequences. Thus, to give a simple illustration, a paternalist might ban the
sale of cigarettes in order to protect a potential smoker's health, whereas a liberal
would allow the smoker to smoke himself to death provided that he does not
harm any other person 6 in the process. This differentiation is tolerably clear,
but there is yet an ambiguity lurking in the meaning of 'paternalism' which we
need to expose and neutralize before proceeding any further. When we speak of
a person's 'own good' or a person's 'welfare' we might mean to invoke either
one of two different conceptions of human interests: (1) those interests a person
recognizes or chooses for herself; or (2) the interests a person ought to recognize
or choose for herself, whether or not she knows she has them or ought to have
them. The second interpretation is sometimes called 'moral paternalism'. A
feature of moral paternalism pertinent to this context is that it supports an
argument for interfering with a person's autonomy in the service of (moral)
interests which she denies that she has. Examples would be criminal laws
proscribing homosexual sex or drug use solely on the ground that it is morally
wrong for a person to abuse her body in these ways, even though 'the offender'
' Ibid, para 2.15.
LibraI6 might therefore support legislation banning cigarette smoking in public places in order to protect
'passive' bmokers.
394 Oxford Journalof Legal Studies VOL 17

derives great pleasure and satisfaction from the proscribed activities and they do
her no physical or emotional harm.
Both conceptions of interests (1) and (2) are important and the label 'pa-
ternalism' could legitimately be extended to either. But in order to promote
7 that arguments
clarity and avoid unnecessary confusion, this article stipulates"
of the second type are a species of'moralism' and reserves the labels 'paternalism'
and 'paternalist' for type (1) arguments. So a paternalist in my sense may
interfere with another person's self-regarding actions in order to protect those
interests which the other would recognize as authentically his (eg his interests
in continued life and bodily security) but not for the sake of interests the other
disowns (eg his (moral) interest in not having gay sex or consuming intoxicants).

A. Does Parliamentin fact support 'paternalismsoftened at the edges'?

The answer to this question must begin with the observation that it is notoriously
difficult to explain parliamentary legislation in terms of any consistent set of
principles or ideals. The cut and thrust of practical politics, the need for
compromise between rival factions, party loyalty and the machinations of the
whips, time limitations and the press of business, committee procedure and late
amendments-all this and much else conspires to render Parliament's legislative
Acts and omissions difficult to interpret and impervious to comprehensive rational
reconstruction." The for and content of legislation is as much the product of
compromise and happenstance as it is the realization of a coherent and principled
programme of law reform. Are we to conclude, for example, that Parliament has
a preference for the antique obscurity of the Offences Against the Person
Act 1861 simply because it consistently fails to make time to enact the Law
Commission's draft non-fatal offences against the person Bill? 9 Neither the
Commission" nor its former chairman 2' appear constrained to draw that in-
ference.

17 Stipulating terms is no sleight of hand because we are interested in the arguments and their relative strengths

and weaknesses, not the labels used to describe them. The Commission may of course have understood 'paternalism'
in a different sense to that stipulated here, but if so: (i) it did not say so; (ii) it would then be departing from the
definition of'paternalism' provided and employed in Appendix C (ie the definition stipulated here), again without
saying so; and (fii) if by 'paternalism' the Commission meant 'moralism', or 'liberalism' or something else
unspecified, its conclusions and provisional proposals should have been different and/or should have been explained
and justified in terms different to the arguments which in fact appear in the Paper.
18 Ronald Dworkin has discussed these issues as part of his clear and cogent argument against an historical/
psychological 'framers' intention' approach to statutory interpretation. See, for example, Ronald Dworkin, Taking
Rights Seriously (Duckworth, 1978), Chapter 5; 'The Forum of Principle', in A Matter of Principle (OUP, 1985);
and Law's Empire (Fontana, 1986) ch9.
19 Law Corn No 218, Legislating the CriminalCode: Offences Against the Person And General Principles, Cm 2370
(HMSO, 1993). I am not concerned here with the substantive merits of these proposals. For some criticisms see
John Gardner, 'Rationality and the Rule of Law in Offences Against the Person' (1994) 53 CLU 502; and Jeremy
Horder, 'Rethinking Non-Fatal Offences Against the Person' (1994) 14 OJLS 335. For a spirited defence of the
codification project in general, see J. C. Smith, 'The Law Commission's Criminal Law Bill: A Good Start for the
Criminal Code' (1995) 16 Statute Law Review, 105.
20 Cf Law Corn No 239, Law Commission Thirtieth Annual Report 1995 (HMSO, 1996) paras 1.25-1.28.
21 See Henry Brooke, 'The Law Commission and Criminal Law Reform' [19951 Crim LR 911 at 918-19, where

it is argued that the problem lies in inadequate parliamentary procedures for the scrutiny and enactment of the
Law Commission's draft criminal law bills.
AUTUMN 1997 Consent in the Criminal Law
These general remarks cast doubt on the claim that a consistent philosophical
thread runs through recent criminal law statutes. Doubt turns to disbelief,
however, once we examine the examples which the Commission musters to
demonstrate Parliament's alleged attachment to paternalism. The Commission
assures us that:
Good recent examples of this Parliamentary ethos appear frequently in this paper.
Obvious instances are:
* the recent refusal by the House of Lords to outlaw boxing, coupled with a general
consensus in the debate that the risks of the sport should be made controllable and
containable;
* the recent decision by the House of Commons, endorsed by the House of Lords, to
reduce the age at which a valid consent may be given to anal intercourse from 21 to
18, but its refusal to reduce it further to 16;
* the unanimous view of the House of Lords Select Committee on Medical Ethics
that it would be wrong to legalize euthanasia;
* the endorsement by the same committee of the jurisprudence now being developed
by the courts which recognizes that an adult person of sound mind should be entitled
to refuse invasive medical treatment, whether on a contemporary basis or in anticipation
of future incapacity;
* the decision by Parliament to intervene with legislation to control the transplantation
of human organs from one human being to another if they are not genetically related;
* the decision by Parliament to prohibit female circumcision in all circumstances."
Let us briefly consider these examples in turn. The continued legality of boxing
seems to represent a strong commitment, not to paternalism but to liberalism.
Apparently,23 the law respects boxers' autonomy even to the extent of allowing
them to consent to serious harm of a degree that would certainly amount to
grievous bodily harm in other circumstances, enough, in other words, for a
conviction of a serious offence against the person or even murder if death results.
In what sense can such a law be called paternalistic? Perhaps the Commission
means this to be an example of paternalism's 'softened edges' where 'Parliament
is confident that there is an effective system of regulatory control, whether this
is created by a licensing regime, by the standards or ethics of a profession, or
by a species of self-regulation in which Parliament has trust'.24 Professional
boxing could certainly be bought within such a description, but that observation
does nothing to advance the Commission's contention that Parliament is fun-
damentally paternalistic in its approach to criminal law reform. These laws tend
to indicate a distinctly liberal-minded legislature, but they are, at the very least,
consistent with several different philosophical approaches to criminalization.
The Commission's second example initially seems more promising, but it
turns out to be no more helpful to the Commission's argument than its reference
22 Para 2.16, foomotes omitted.
23 The legal status of boxing is surprisingly uncertain, based more on assumption than authority. See Michael
Gunn and David Ormerod, 'The Legality of Boxing' (1995) 15 Legal Studies 181; Consent and Offences Against the
PRon, paras 10.19-10.22; Consent in the CriminalLato, paras 12.32-12.38.
24 Consent in the CriminalLatc, para 2.15.
 396 Oxford Journal of Legal Studies VOL. 17

to boxing. The decision to fix the homosexual age of consent at eighteen could
be given a paternalistic interpretation: it might be said that this law is designed
to protect young people from their own sexuality. Several Members of Parliament
who opposed Edwina Currie MP's proposed amendment to the Criminal Justice
and Public Order Bill, which would have fixed the age of consent at sixteen
irrespective of sexual orientation, spoke of the need to protect insecure young
men from being lured or pressurized into homosexuality. Michael Alison MP,
for example, implored Parliament to 'focus on the needs of those who are
bobbing about in an uncertain sea of sexual development between the ages of
sixteen and eighteen and who need every support and protection they can get
'
... But the age of consent law could equally be justified by arguments
associated with other, opposing philosophical traditions. Liberals need not object
to properly circumscribed paternalistic laws designed to protect minors from
themselves because there is nothing objectionable, from a liberal perspective,
about safeguarding the autonomy of someone who does not (yet) have (full)
capacity to live an autonomous life. In other words, liberalism is opposed to
treating adults like children but is perfectly compatible with laws that treat
children like children. Should we then conclude that the Commission's examples
of recent criminal law reform suggest a legislative philosophy of liberalism
stiffened at the edges by paternalism, rather than, as the Commission would
have it, paternalism with softened edges? Not at all. For, although such a
conclusion more readily accommodates the Commission's own evidence, it is
demonstrably premature. Reform of the homosexual age of consent is probably
best explained as a mixture of liberalism and legal moralism, rather than flowing
from any strong commitment to paternalism. Lowering the age of consent from
twenty-one to eighteen promotes adult gays' (sexual) autonomy, in accordance
with liberal principles, but the homosexual age of consent remains two years
higher than the age for lawful heterosexual sex primarily in order to express
society's denunciation of homosexual acts (moralism), rather than because such
protection will make the lives of seventeen-year-old homosexuals go better. Chris
Smith MP's contribution to the parliamentary debate on Mrs Currie's amendment
expressed the point in terms upon which it would be difficult to improve:
[An] argument has been advanced, and it has been touched on by one or two
Conservative Members. It is a deeper and I suggest less worthy argument. It is that
being gay is abnormal and therefore unnatural and illegitimate. To those people, I
would say this. Yes, we are different. We have a different sexuality. But that does not
make us in any way less valid or less worthy citizens of this country. Yet the law at
present says that we are.

25 Hansardvol 238, col 104 (21 February 1994). It should be noted that although this argument might, if its
empirical premiss were true, support a general age of consent set at eighteen years, it cannot support diffewnt ages
of consent for heterosexual and homosexual sexual experiences. In the absence of some argument to explain why
young men (but not young women) need special protection from homosexual sex, it is difficult to avoid the
conclusion that the law and its supporters are motivated by moralistic concerns.
AUTUMN 1997 Consent in the Criminal Law 397
A century ago, A.E. Housman wrote:
Oh who is the young sinner with the handcuffs on his wrists?
And what has he been after that they groan and shake their fists?
And wherefore is he wearing such a conscience-stricken air?
Oh they're taking him to prison for the colour of his hair.
In this country we do not discriminate against people on grounds of the colour of their
hair. We do not discriminate against people because they happen to be left-handed.
We do not discriminate against people because they are of a different race. But we do
discriminate against them because their sexuality is different. I argue that we should
not.2'

In the event, the amendment to bring the homosexual age of consent into line
with that for heterosexual sex was defeated, on a free vote, by 307 votes to 280.27
Turning to the Commission's third example, the House of Lords Select
Committee on Medical Ethics 8 did indeed unanimously endorse the current
criminal status of voluntary euthanasia, but this observation fails to advance the
Commission's argument for two important reasons. In the first place, it is by no
means unusual for Parliament to ignore the recommendations of its select
committees or even to reject them entirely,29 so it is, to put it mildly, somewhat
misleading to assimilate the opinions of the latter with the legislative intentions
of the former. But that aside, second, it is a mistake to characterize this
recommendation of the Select Committee on Medical Ethics as an example of
'paternalism'. The Committee advanced several reasons for its opposition to
voluntary euthanasia:3"

(a) the social taboo on taking life might be weakened resulting in harm to other
people (presumably because assaults and murders would increase, but the
Committee is far from clear in spelling this out);
(b) there might be traumatic effects on relatives and loved ones;
(c) voluntary euthanasia might be the first step on a slippery slope to involuntary
euthanasia, particularly in relation to...;
(d) old people, who might feel under pressure to assent to death against their
true wishes.

2" Hansardvol 238, col 112.

27 Attempts to argue that English law on the homosexual age of consent is in breach of Articles 8 (private life)
and 14 (discrimination) of the European Convention on Human Rights have thus far come unstuck, though the
Stmbourg Court has yet to address the question directly; see Wdde, Greenhalgh and Parryv UK (1996) 19 EHRR
CD86. At the time of writing, the Labour Party has pledged to hold another free vote on the issue should it form
the next government after the general election; see Colin Brown, 'Labour Gives Pledge on Age of Gay Consent',
The n1hn&p'n&nt, 20 February 1997.
HL Paper 21-I Session 1993-4.
2) For instance, Parliament did not accept the recommendation of the House of Lords Select Committee on
Murder and Life Imprisonment that the mandatory life sentence for murder should be abolished: see HL Paper
78-, Session 1988-9, Part 7. Nor has Parliament followed all the advice of the House of Commons Home Affairs
Committee (HC Paper 26-I, Session 1988-9) or the House of Lords Select Committee on Science and Technology
(HIL Paper 24-I, Session 1992-3) in relation to the funding and accreditation of forensic science services; see Paul
Roberts, 'What Price A Free Market in Forensic Science Services?' (1996) 36 British Journalof Criminology 37.
HI. Paper 21-I Session 1993-4, paras 236-41.
398 Oxford Journalof Legal Studies VOL. 17

Passing over the substantive merits of these arguments, the important point for
our purposes is that none of them appeals to the paternalist ideal of intervention
for aperson's own good. In fact, the first three (a)-(c) are all liberal, 'harm principle'
arguments which base the criminalization of voluntary euthanasia on the risk of
harm to others. 3 Argument (d) is also consistent with liberalism because, far
from diminishing one's sphere of personal autonomy, legal protection from
coercion expands one's opportunity to make autonomous choices. Liberals value
autonomous choices because (only insofar as) they are an expression of an
individual's free will and self-determination. This naturally predisposes liberals
to support laws which prevent a person's will being overborne by coercion.
Moving on to the Commission's fourth and fifth examples, respect for a
person's decision to die is pure liberalism. A paternalist doctor might, for
example, go against the express wishes of a patient by reviving him after he has
lost consciousness and using artificial means to sustain life if doing so would
promote the patient's welfare interests. Legal controls on transplants, on the
other hand, are moralistic. Such laws do not make the lives of organ donors go
better nor do they advance the welfare interests of any potential recipients of
harvested organs. Their object is to provide formal, institutional support for
informal ethical precepts (eg against the commodification and trade in human
tissue) by reinforcing the strictly moral imperative through a combination of
official censure and penal sanction.
The Commission's final example does at least provide some limited support for
the proposition for which it is advanced. The prohibition of female circumcision is
paternalistic, at least in intention. Liberals could endorse criminal laws proscribing
the circumcision of minors because, as we observed in relation to the age of
consent, respect for the value of autonomy does not preclude children being
treated paternalistically. But liberals would not extend such laws to adult women,
because to treat them like children is an insulting and unwarranted infringement
of their autonomy. That said, even paternalists might struggle to justify the
extension of these laws to adult women under the Prohibition of Female
Circumcision Act 1985. In what sense does one promote the welfare of an adult
woman by preventing her from undergoing a purely cosmetic operation, by
imprisonment if necessary, without which she runs the risk of being ostracized
by her kin, denigrated by her culture and wracked by the guilt of a terrible
sinner according to her own religious lights? Medical concerns about insanitary
conditions and unqualified practitioners aside, the current law of England and
Wales on female circumcision might be motivated as much by moralistic as
paternalistic concerns. 2

31 The empirical foundations of these arguments may be more or less securely anchored in reality (and, judged
by that criterion, it might be thought that some of them seem fairly shaky) but it is unnecessary for the development
of the present argument to pursue these remarks here.
32 A useful review of the arguments for and against is provided by Morayo Atold, 'Should Female Circumcision

Continue to be Banned?' (1995) 3 Feminist Legal Studies, 223. More materials and references can be found in
Henry J Steiner and Philip Alston, InternationalHuman Rights in Contexr (OU, 1996) 240-54.
AUTUMN 1997 Consent in the Criminal Law
If the Commission's highly selective survey of recent criminal law reforms had
produced any substantial evidence for its claim that Parliament takes a pa-
ternalistic approach to criminal legislation it would have been necessary to provide
other (admittedly, also highly selective) examples to rebut that proposition. It
would not have been difficult to demonstrate that most criminal laws, old and
new, derive from the liberal concern to prevent harm to others, and that most
self-regarding harms fall beyond the ambit of criminal regulation. But there is
no need. To demonstrate the falsity of Consent in the CriminalLaw's foundational
premiss it is enough to have shown that even the Commission's own examples
are far more redolent of liberal or moralistic approaches to criminalization than
of any brand of paternalism, soft-edged, common-or-garden, or any other variety.

B. Is paternalism a sound basisfrom which to determine the role of

consent in the criminal law?
Even if we were prepared to assume-for the purposes of argument-that
Parliament has a preference for paternalistic criminal laws, as the Commission
claims it does, it would not follow that paternalism provides a sound general
justification for criminal prohibitions. In fact, of the three philosophical per-
spectives considered in Consent in the Criminal Law's Appendix C, paternalism
seems to be the weakest; or, at least, its proper ambit is narrowly circumscribed.
Unless a person is a child, incapacitated or deranged, interfering with his
voluntary choices, not to safeguard the rights of others but only for his own
good, is an affront to that person's autonomy. Further, to attempt to do so by
coercive criminal sanctions is almost always self-defeating: one does not preserve
the autonomy of the potential suicide by locking him up in a strip cell, for
example.33 Paternalistic justifications for criminal laws also seem objectionably
voracious, in the sense that there appears to be no theoretical 4 limit to their
application or extension. Appendix C demonstrated that setting out on the
paternalist road quickly leads down a slippery slope to the criminalization of non-
'Spartan' lifestyles. A paternalist Parliament might ban smoking and excessive
drinking, force people to exercise their bodies and minds adequately, require
people to have medically necessary surgical treatment against their wishes,
prevent families who would be unable to cope properly from having (more)
children, and do all manner of other things that most people would denounce
as a gross invasion of their civil liberties. Ordinary people's commitment to their
personal liberty or autonomy (though they would not use this technical vocabulary

3 For more detailed practical and principled objections to paternalistic criminal laws, see Jonathan Schonsheck,
On Criminalization:An Essay in the Philosophy of the CriminalLaw (Kluwer, 1994) Part II.
34 It is certainly possible to construct a moral argument for limitations on paternalistic laws. The argument
might proceed-as moralistic perfectionist political moralities typically do-by demonstrating that the value of
personal autonomy constrains the extent to which an individual's welfare may be promoted by paternalistic
interference with her freedom of action; see, for example, Robert P George, MakingMen Morak Civil Libertiesand
Public Moraliy, (OUP, 1993) 35-47; and John Finais, Natural Law and NaturalRights (OUP, 1980) chs V &
VII.5. However, since the Commission argues for a paternalistic, not a moralistic, approach to criminal legislation,
it is unnecessary to address these moralistic arguments here.
 Oxford Journalof Legal Studies VOL. 17

to describe that commitment) is much stronger than the limited attractions they
might see in paternalistic government. And, in this instance at least, common
sentiment is a reliable guide to superior principles of political morality.
These brief remarks do not conclusively refute paternalistic arguments for
criminal laws, or establish that all paternalistic criminal laws are irremediably
bad and necessarily unjustified on that account alone. But I hope I have
said enough to rebuff the Commission's claims for paternalism. Certainly, the
Commission gives us no reason to think that its preferred conception of pa-
ternalism is more likely than liberalism to yield firm philosophical foundations
for criminal law reform. I have intimated here that the reverse is closer to the
truth. Indeed, negative responses to the two questions posed in this section are
mutually reinforcing. The liberal values of autonomy and pluralism more faithfully
transcribe the moral limits of the criminal law than a paternalistic preoccupation
with individual welfare; and this is reflected in Parliament's commitment to
individual liberty which, generally speaking, is only constrained by criminal laws
to the extent necessary to secure like liberty for all. That a small number of
criminal prohibitions can perhaps only be explained on paternalist grounds does
not undermine that basic commitment. To assert otherwise is to fall into the
trap of mistaking the rare exception for the rule.

II. An Alternative Approach to Thinking about Criminal

Law Reform: The PhilosophicalFramework Presented in
Appendix C
We have so far established that the Commission's point of departure for its
investigation into consent and criminal liability leaves much to be desired,
founded as it is on (i) an unsubstantiated assertion about Parliament's legislative
preferences and (ii) the unargued merits of a demonstrably unattractive philo-
sophical paternalism. But is there a preferable alternative? Law reform proposals
raised on flimsy arguments practically invite brutal critical commentary, but the
Commission is surely entitled to expect that its critics will, at least sometimes,
emphasize the constructive aspects of their critical offensives. This article's
positive contribution to the debate is to argue that the approach to criminal law
reform outlined in Appendix C is superior to that chosen by the Commission.
The philosophical framework for exploring issues of criminalization outlined
in Appendix C incorporates a two-stage approach:
In order to determine whether a particular form of conduct should be criminalized it
is always necessary to pose two quite separate questions:
(1) Is there a good (moral) reason to justify extending the criminal law to this particular
conduct?
(2) Should this conduct be criminalized all things considered (with particular reference
to other moral principles and the pragmatics of law enforcement)?"
35 Consent in the Criminal Law, para C.18.
AUTUMN 1997 Consent in the Criminal Law 401
At the first stage of the enquiry, the advocate of any particular criminal prohibition
needs to supply a good reason, not just for generalized state interference with
the lives of individuals, but for that specific form of state regulation represented
by criminal sanctions: ie hard treatment36 which is peculiarly destructive of
autonomy, administered through procedures specially designed to communicate
the sting of blame or censure.3 7 According to the Appendix, the task of con-
structing these arguments of principle may be clarified by comparing three
different 'philosophical perspectives', which (following Feinberg and others) I
labelled 'liberalism', 'paternalism' and '(legal) moralism'. Each perspective was
then shown to appeal to a different vision of political morality which could, in
turn, be used to derive both general principles of criminalization and more
specific recommendations for law reform. It was not suggested that principles
and law reform proposals could simply be 'read off' from the different per-
spectives. Rather, arguments were developed by working with and within the
spirit of principle which animates each philosophical tradition. It was hoped that
this framework would facilitate debate and reflection by linking up particular
law reform proposals with the moral and political principles from which they
derive, the better to be able to judge the merits and limitations of each proposal.
Readers were, in effect, being invited to ask themselves: how do you (not) like
this law reform proposal now that you see that it would be a liberal (paternalist/
moralist) law, in the light of the values advocated by liberalism (paternalism/
moralism)?
If a principled, reasoned case for criminalization can survive this clash of
philosophical perspectives at the first stage of the enquiry, the proponent of
criminal legislation must then (it was contended) proceed to consider, at the
second stage of the framework, whether her argument of principle can be turned
into an argument for criminalization all things considered. Appendix C, with no
pretensions to comprehensiveness, sketched out several arguments touching
upon general principles of law-making, criminal procedure, and the ethics and
practicalities of law enforcement which might block the progress of a principled
prima-facie case for criminalization into criminal laws on the statute book. Notice
that obstacles to enactment at this second stage raise important issues ofprinciple.
Arguments for criminal legislation generated by any one of our three philosophical
perspectives may yet have to yield to other, more weighty values because the
duties of democratic government are not exhausted by the duty to protect
citizens from criminal victimization and the duty to punish wrongdoers. Part of
government's contribution to criminal justice is to act in accordance with certain

" A useful term to designate the material deprivations of criminal trial and punishment, as distinct from
punishment's symbolic aspects: see Joel Feinberg's seminal paper 'The Expressive Function of Punishment',
reprinted in Antony Duff and David Garland (eds) A Reader on Punishment (OUP, 1994).
7 See Andrew von Hirsch, Censure and Sanctions (OUP, 1993); and Uma Narayan, 'Appropriate Responses
and Preventive Benefits: Justifying Censure and Hard Treatment in Legal Punishment' (1993) 13 OJLS 166.
402 Oxford Journalof Legal Studies VOL. 17

basic precepts of common humanity," so that-to take a simple and well-worn

but, for all that, very powerful example-criminal laws cannot be justified if they
would require morally repugnant investigative methods, such as torture, to
enforce them. There are also pragmatic considerations at this second stage of
the framework. Even moral prohibitions with firm philosophical foundations
should not be translated into criminal laws if in practice they would, for example,
produce evil side-effects that are morally worse than the conduct to be prohibited.
The Appendix suggested that this framework for thinking about issues of
criminalization might 'bring order and clarity to the philosophical debate by
identifying the individual argumentative strands and presenting them for ex-
amination'., 9 To be more specific, I believe that the framework conduces to two
species of clarification which might contribute positively to the debate. The
first type of clarification is achieved when spurious justifications for criminal
prohibitions are exposed. It can be demonstrated, for example, that a law
supposedly justified by liberal harm principle arguments, and the attractive
appeal to individual autonomy that goes with them, in fact relies on some species
of autonomy-constricting moralism.4" Secondly, the framework demonstrates the
primacy of a particularistic or 'qualitative' assessment of individual criminal
prohibitions, for all three philosophical perspectives within it teach us that
criminal wrongs cannot be reduced to the degree of injury suffered by a 'victim'.
Rather, one must consider all the circumstances in which an injury is inflicted
before judging its seriousness as a criminal offence; indeed one must investigate
all the circumstances before concluding that an injury constitutes any criminal
offence. To take a simple example, if for no other reason than to relieve your
boredom you come up to me in the street and deliberately kick me in the shins,
that is a (relatively minor) criminal offence even though it causes me little if any
discomfort. Yet the surgeon who with my consent cuts open my gums, gouges
out my wisdom teeth and stitches up the wound, causing me (I can say from
personal experience) considerable pain, commits no offence. As Lord Mustill
wisely observed in his dissenting judgment in Brown: 'Circumstances must alter
cases'. 41 The approach to issues of criminalization advocated in Appendix C,

38 In a forthcoming paper John Gardner remarks upon 'the modem state's powerful duty of humanity towards
each of its subjects. To avoid surrendering the whole basis of its authority-as the servant of its people--the
modem state in all of its manifestations is bound to treat each of those over whom it exercises that authority as a
thinking, feeling human being rather than, for instance, an entry on a computer, a commodity to be traded, a
beast to be tamed, a social problem, an evil spirit, a pariah, or an untouchable'. John Gardner, 'Crime-In
Proportion and in Perspective'. Modem states have expressly placed themselves under a duty of humanity in
multilateral international treaties such as the UN Universal Declaration of Human Rights and the European
Convention for the Protection of Human Rights and Fundamental Freedoms, though, of course, in reality their
behaviour all too often belies their paper promises.
39 Consent in the CriminalLaw, pars C.17.
40 Consider, for example, Lord Templeman's appeal to harm principle arguments in support of his opinion in
Brown [1994] 1 AC 212, at 245g-g. The approach to criminalization advocated here soon reveals his Lordship's
reasoning in its true colours, as a form of crypto-moralism. For a warning against another moralist device for co-
opting and subverting the harm principle, see Andrew von Hirsch, 'Extending the Harm Principle: "Remote"
Harms and Fair Imputation' in A. P. Simester and A. T. H. Smith (eds) Harm and Culpability (OUP, 1996).
41 R v Brown [19941 1 AC 212, at 270e.
AUTUMN 1997 Consent in the Criminal Law 403
which concludes in the following terms, supplies the philosophical foundations
for this insightful observation:
Our conclusion is that there is no intelligible answer to the question (or riddle): to
what level of injury should consent be effective in protecting the injurer from criminal
liability? Liberalism, paternalism and moralism are united in suggesting that the
significance of consent is a function of the context in which it operates. Consequently,
the only way for our investigation to proceed is to consider particular fact-situations
individually and to evaluate the relevant arguments for and against criminalization on
their merits.42
It seems to me that these features of the philosophical framework outlined in
the Appendix amply demonstrate its value as a heuristic device for exploring the
moral limits of the criminal law. Perhaps it is no coincidence that, having rejected
the Appendix C approach in favour of a manifestly inferior alternative, the
Commission promptly fell into the error that I call the 'quantitative assumption'
or the 'quantitative approach' to injury-that is, the mistake (to which we have
just alluded) of thinking that criminal wrongs can be defined purely in terms of
the severity of an injury." Thus, in a crucial paragraph of the Paper, the
Commission informs us that:
we have decided to propose on a provisional basis a law reform strategy that recognizes
people's entitlement to make choices for themselves but has the following distinctive
features: ...
(3) we will take into account a person's interests in his or her own physical health and
vigour, the integrity and normal functioning of his or her body, the absence of absorbing
pain and suffering or grotesque disfigurement.
(4) As a consequence of the concern expressed in (3), if seriously disabling injury
results, we will take the view that a person who consents to it has made a mistake and
that to be really disabled is against his or her interests.
(5) On the other hand, we will not take that view if the consent is given in the context
of an activity that is very widely regarded as beneficial and for which the state is
satisfied that the risks are properly controllable and containable (for example, surgery
and risky sports).'
By making the quantitative assumption-seriously disabling injuries should be
presumptively unlawful, regardless of consent-the Commission not only errs

42 Par C.ll.
41 My paper to the Commission argued that 'The debate about consent and the criminal law often proceeds
from the premiss that there must be a limit on the degree of injury to which a person can lawfully consent. The
basic question then becomes quantitative: at what degree or level of harm should the threshold of legally effective
consent be set? This quantitative approach is evident in their Lordships speeches in Brown and in the methodology
of the first Consultation Paper... . Unfortunately, the quantitative approach to our subject is deeply flawed and
misleading because it prejudices our inquiry, and any conclusions we might hope to draw from it, from the outset'.
The majority of their Lordships in Brown drew the line of legally effective consent to injury at the extraordinarily
low level of actual bodily harm, any injury that is 'more than merely transient or trifling'. In its first consultation
paper the Commission was minded to raise the threshold to (in the terminology of its Draft Criminal Code)
'serious injury', and now the Commission advocates a new concept to mark the boundary of criminal liability,
'seriously disabling injury'. Views about the appropriate degree of injury have changed, but the basic quantitative
assumption remains the same.
44 Consent in the Criminal Law, para 2.18.
 Oxford Journalof Legal Studies VOL. 17

in principle but also quite unnecessarily creates for itself definitional difficulties
that probably defy satisfactory resolution. Problems arise because a thorough-
going quantitative rule would be manifestly undesirable and untenable in practice.
Anyone purporting to advocate a quantitative standard for criminalizing con-
sensual injury always intends or assumes that there will be exceptions for surgical
treatment, tattooing, risky sports and exhibitions, and the like, as the Commission
immediately recognizes in its proposition (5). Unfortunately, the Commission
fails to realize that a quantitative-rule-plus-exceptions approach is barely an
improvement on the naked quantitative assumption, for it burdens the law with
unnecessary complexity and, worse, is contrary to principle. By assuming that
all injuries (including consensually inflicted injuries) above a certain level of
gravity constitute criminal harms, unless they can be brought within some
pre-ordained protected category, the quantitative-rule-plus-exceptions approach
places unwarranted restrictions on individual freedom and fuels a disturbingly
expansionist tendency in the criminal law. It effectively reverses the traditional
common law presumption, that everything is lawful unless expressly proscribed,
by extending criminal sanctions to conduct simply because the legislature has
not (yet) had occasion to consider it for exemption.45
The Commission does not address, much less refute, the case against the
quantitative assumption presented in Appendix C, nor does it supply an al-
ternative principled basis for drawing the line of legally effective consent at
seriously disabling injury, rather than at some other point on the scale of set-
backs to interests.46 Instead, the Commission's quantitative assumption soon
manifests itself as a quantitative-rule-plus-exceptions regime and the Commission
is obliged to craft messy ad hoc exceptions to protect certain injury-causing
activities, such as medically necessary surgical interference and dangerous sports,
which would otherwise sometimes fall on the wrong side of the line. The basic
practical difficulty lies in attempting to legislate in advance for every conceivable
category of seriously disabling injury that ought to be excluded from the ambit
of the criminal law. The Commission's proposed exemptions in favour of
medical treatment and research48 and sporting injuries"9 seem reasonable enough

45 See further, Paul Roberts, 'Consent to Injury: How Far Can You Go?' (1997) 113 LQR 27; David Kell,
'Social Disutility and the Law of Consent' (1994) 14 OJLS 121.
46 Note that even if paternalism provided a sound basis for justified criminalization, it would not supply the

quantitative assumption underpinning the general rule that 'seriously disabling injury' should be the limit of legally
effective consent to injury. Amputations and life-threatening operations can be in a person's best interests and
would therefore be condoned by a paternalist. (Provided that the patient consents, the liberal would not see
anything wrong in risking death in these circumstances, either. Nor would the moralist, unless she holds some
minority view about the morality of operations such as the Jehovah's Witness's aversion to blood transfusions.
Liberalism and moralism do not advocate the quantitative assumption any more than paternalism.)
47 The CPS and the courts are already experiencing precisely this difficulty in trying to apply the law on consent
to assault after Brown: see ji/son [1996] 3 WLR 125 (CA), discussed by Roberts (1997) 113 LQR 27.
48 Consent in the Criminal Law, paras 8.25-8.52.
49 Ibid, part XII.
AUTUMN 1997 Consent in the Criminal Law 405
on their face, but one can always envisage forms of non-traditional medicine or
new leisure pursuits which might end up criminalized by default.5"
These difficulties might have been avoided if the Commission had given more
thought to the philosophical principles which ought to determine the moral
limits of the criminal law, and then used the fruits of these reflections to formulate
particularistic rules to proscribe only those specific forms of consensual injury
deemed worthy of criminal prohibition. Arbitrary line-drawing might still some-
times be necessary to mark out the boundaries of the criminal law, but the
discipline of specifying precisely what conduct ought to be unlawful would at
least concentrate the legislator's mind and might, possibly, energize public debate.
It would also ensure that any activities left out of account would be given the
benefit of the doubt, at least until the evil in question was identified clearly
enough to be the subject of a specific legal prohibition. This much becomes
clear if one employs the framework presented in Appendix C for thinking about
criminal law reform.

III. Stephen Shutes Six Objections

In a characteristically perceptive commentary on Consent and the CriminalLaw,
Stephen Shute has entered numerous objections to the arguments presented in
Appendix C and drawn attention to various deficiencies in their execution."
Several of Shute's points are well taken and will be readily conceded. His article
amply demonstrates the need for a clearer and more careful explanation of the
project undertaken in the Appendix. Yet the casual reader of Shute's remarks
might be forgiven for concluding that the Appendix contains little of value, for
there is much with which Shute takes issue and nothing with which he expressly
agrees. To my mind that impression would be unfortunate because, if the
argument developed above is found at all persuasive, then the Appendix, in spite
of its flaws, ought to be allowed to make a positive contribution to the continuing
debate about consent and criminal liability. In this final section of the article I
will try to show that the arguments presented in the Appendix emerge essentially
unscathed from Shute's searching criticisms. IfI am successful, those arguments
should appear all the stronger for having been subjected to that critical test.
There are six counts in Stephen Shute's indictment of Appendix C:
1. Over-abstraction:The argument is said to obscure the context, complexity
and pluralism of social and ethical life by adopting a 'reductive technique'5 2
according to which virtually all the arguments bearing on the relationship between
consent and criminal liability can be 'compressed' into one or more of the three
perspectives on offer, liberalism, paternalism or moralism. Consequently, 'in

" This point is made, for example, in the SPTL response to Consent in the CriminalLaw, a copy of which was
kindly supplied to me by Martin Wasik. Also see Peter Alldridge, 'Consent to Medical and Surgical Treatnent--The
Law Commission's Recommendations' (1996) 4 Medical Law Review, 129.
' Shute, above n7.
5 Ibid at 691.
406 Oxford Journalof Legal Studies VOL. 17

shifting the focus away from individual arguments towards broadly-drawn per-
spectives the Appendix inevitably filters out many of the subtleties and idio-
syncrasies which made the individual arguments attractive in the first place'."
2. Reductionist: A related vice of the 'reductive technique' is that other per-
spectives are overlooked: 'by confining the discussion to three and only three
perspectives the reader is left with an abiding suspicion that an unnecessary
strait-jacket has been placed around the debate .... [F]urther perspectives might
be necessary'."
3. Liberalbias: The Appendix fails to treat the three perspectives even-handedly:
'like is not being compared with like. Whereas liberalism is a broad social and
political tradition which draws on a number of disparate threads, the other two
perspectives are much more narrowly conceived ... When compared with the
catholic mix of moral and political arguments that is the hallmark of modem
liberalism ... paternalism and legal moralism look suspiciously like single-issue
doctrines and not "perspectives" at all. Is it surprising, therefore, that when
pitted against liberalism they seem unequal to the task?' 5
4. Liberalism and the offence principle: Liberals 'will be disturbed to learn that
liberalism requires them to sign up to the "offence principle", which allows for
the criminalization of offensive conduct even when no harm has been caused',.5
5. Defining the offence principle: The Appendix erroneously defines offence as a
wrongful set-back to interests, thus equating offence with harm and rendering
the offence principle redundant: 'if all offensive conduct were to cause harm,
the offence principle could have no independent role. What needs to be shown,
then, if the offence principle is not to collapse into the harm principle, is that
there are good reasons for supporting the criminalization of non-harmful offensive
conduct. And this the Appendix transparently fails to do.' 7
6. The role of the harmprinciple: In the Appendix the harm principle is pressed into
service as an inclusionary principle, to justify particular instances of criminalization.
This goes against the grain of 'traditional liberal thinking' 8 in accordance with
which the harm principle is deployed as a principle of exclusion to show why
particular conduct should fall outside the ambit of the criminal law.
Before responding specifically to each of these six objections, some general
observations are in order. Most people would agree that any piece of writing-
indeed any human communication-cannot be judged without reference to its
context. In order to know what words mean one must have regard to when and
why they were said. These rather trite observations are pertinent to our present
concerns because I suspect that Stephen Shute's frustration with the Appendix
stems in large part from a misunderstanding about what it was trying to achieve.

53 Ibid.
54 Ibid.
55 Shute, above n7 at 691-2.
56 Ibid at 692.
57 Ibid.
58 Ibid.
AUTUMN 1997 Consent in the Criminal Law 407
If the Law Commission had asked me to condense every argument from (let's
say) two and a half centuries of philosophical enquiry and debate bearing on
criminalization into forty-odd pages of a consultation document, my brief would
have been Mission Impossible, rather than merely (as Shute allows) 'a poisoned
chalice', and I would have returned it forthwith. But I was never asked to do
any such thing, as the Appendix itself makes clear:
What follows is necessarily a summary, which cannot hope to do justice to the range,
subtlety and complexity of all the philosophical work in this field. The modest aim is
to describe the major themes in the leading philosophical perspectives and to suggest
criteria for their evaluation.... This Appendix tries to bring order and clarity to the
philosophical debate by identifying the individual argumentative strands and presenting
them for examination. The main arguments are reviewed, in a pristine and unadulterated
form, there is an explanation of the terms in which they are justified and their
implications are traced. 9
The Appendix could never hope to be more than a fairly crude sketch-map of
the philosophical terrain, designed to assist those contributors to the consultation
exercise-perhaps the majority-who have little or no pre-existing familiarity
with philosophers' contributions to the debate and who are unlikely to have the
time or the inclination to acquaint themselves with the primary texts. Against
those who might hold that a little (bad) philosophy is a perilous thing, I maintain
that a brief introduction to some of the main arguments and an invitation to
further reflection on the philosophical foundations of law reform proposals is,
although not without its dangers, a significant advance on the unprincipled and
atheoretical terms in which these debates are too often conducted. Stephen
Shute thinks that the Commission should 'examine the individual issues in their
context, identify the various arguments that might be brought to bear, judge
their weight, and not expect one overarching, unified "perspective" to provide
all the answers'." I agree, and said as much in the Appendix:
Liberalism, paternalism and moralism are united in suggesting that the significance of
consent is a function of the context in which it operates. As a consequence the only
way for the investigation to proceed is to consider particular fact-situations individually
and to evaluate the relevant arguments for and against criminalization on their merits.6"
But pace Shute, the Appendix does not fail to deliver on a promise to undertake
this detailed, contextualized enquiry: that was the task for the main body of the
Paper. The Appendix only ever claims to be clearing the ground for the substantive
investigation to come, so it is a little surprising to discover that it could ever
have supported such extravagant expectations, but not in the least surprising
that those who entertain them should be disappointed by what they find there.
With these general observations in mind, let us return to the detail of Shute's
six objections. In response to (1), it should now be clear that conceptualizing
5' Appendix C.17.
" Shute, above n 7 at 693.
1 Appendix C.111.
 Oxford Journalof Legal Studies VOL. 17

the consent debate in terms of the three philosophical perspectives was not
intended to be a substitute for detailed analysis of the normative significance of
consent to injury in particular contexts. To the contrary, the objective was to
provide a framework to facilitate just such an enquiry by demonstrating how
familiar arguments about the criminalization of consensual injury (at least
implicitly) appeal to three competing conceptions of freedom. Insofar as these
connections are opaque or confused, which they often are in public debate, it is
worthwhile taking some time to unearth and disentangle them. But to maintain
that it is illuminating to think about the criminalization of consensual injury in
terms of competing philosophical perspectives does not imply that one can
therefore dispense with the detailed arguments which extend to particular issues
and circumstances, as though conclusions about the moral limits of the criminal
law could be 'read off' from abstract philosophical principles. The Appendix is
at pains to stress that difficult and controversial judgments must be made
both in specifying the detailed content of principles of criminalization"2 and in
extending those principles into practice.6 3
Whereas objection (1) doubts the heuristic value of 'broadly drawn per-
spectives', objection (2) changes tack somewhat by suggesting that the three
such perspectives discussed in the Appendix may not be enough. As Shute
observes, the Appendix limits itself to only three perspectives on the grounds
that 'arguments that fall outside their parameters are likely to be so outlandish
that they would command very little support, and they need not therefore trouble
the law reform process'. 64 As a practical aid to law reform, rather than a wide-
ranging review of the literature, the Appendix necessarily eschewed any aspiration
to comprehensiveness, which would have been redundant in the circumstances.
Does the philosophical framework it advocates 'compress' the arguments or
'place an unnecessary strait-jacket around the debate', as Shute charges? I do
not think so, but it must be conceded that the arguments elaborated in the
Appendix itself are not entirely satisfactory. There are, of course, many possible
approaches to criminalization in addition to the three broad perspectives explored
in the Appendix, but recognizing this fact is not an admission that other
perspectives are necessary for the task in hand. Utilitarianism, Marxism, fascism,
post-modernism and religious teachings from (for all I know) Adventist to Zen,
all have something (in some cases quite a lot) to say about the moral limits of
the criminal law, but none of these traditions-not even the Doctrine of our
established Church-advances general principles of criminalization that could
plausibly recommend themselves to a secular, multicultural, pluralist liberal
democracy like the United Kingdom. We can therefore safely pass over these
perspectives. Whatever virtues they may have, they have nothing unique to
contribute to criminal law reform in England and Wales (although it was unfair
and potentially misleading to label them all 'outlandish' purely on that account).
62 Paras C.29-C.32.
63 Paras C.92-C.107.
64 Para C.23.
AUTUMN 1997 Consent in the Criminal Law 409
Conversely, it should be appreciated that the three perspectives discussed in the
Appendix can comfortably accommodate a very broad range of arguments, not
least because 'legal moralism' is defined" to encompass any moral argument for
criminalization that is not otherwise advanced under the rubric either of 'lib-
eralism' or 'paternalism'. 66 So in order to substantiate the claim that the philo-
sophical framework elaborated in the Appendix is too narrow and constricting
a critic must point to a non-moralargument for criminalization that law reformers
ought to take seriously. Since restricting individual autonomy through criminal
sanctions is usually thought to have great moral significance, this is a stiff
challenge. Shute does not rise to it; and until somebody does, I stand by my
original claim that the three perspectives 'are apt to cover, between them, virtually
all the arguments that are put forward in debates about the moral limits of the
criminal law'.67
The answer to Shute's third objection, that the Appendix does not conduct a
fair fight between liberalism and its adversaries, has already been hinted at: I
readily plead guilty as charged to this count in the indictment. The argument
advanced in the Appendix proceeds from the assumption that individual liberty/
autonomy is a central value of political morality. Although some commentators
might wish to contest that proposition, the fact is that autonomy is the foundational
political value in western liberal democracies and most people who live in them
cherish their personal freedom; as indeed they must if they are to carve out
successful lives for themselves in these societies.6" Since the Appendix addresses
itself to practical law reform in England and Wales, and not to criminal law
reform in abstracto, philosophical perspectives which give insufficient weight to
the value of individual autonomy could be excluded from further consideration.
Another way of expressing the divergence and disagreement between the three
philosophical perspectives explored in the Appendix is to say that each represents
a different conception of the value of autonomy. For liberals, autonomy is pre-
eminent in the pantheon of value, whereas adherents of paternalism and moralism
place autonomy lower down on their respective lists of moral priorities. The
argument developed in the Appendix amounts to a kind of challenge to English

5 Para C.70. Following Feinberg, the first variant of moralism-'strict legal moralism'-is defined as the view
that: 'It can be morally legitimate to prohibit conduct on the ground that it is inhrently immoral, even though it
causes neither harm nor offence to the actor or to others'. Joel Feinberg, Harm to Others (OUP, 1984) 27.
' Again, the Appendix could have been clearer on this point. Para C.80 states that 'The strict legal moralist
believes that in principle the criminal law may be used to enforce true morality, not just the morality accounted
for by the harm and offence principles, but any and every moral rule'. However, I did not mean to say that
moralists are necessarily committed to using the criminal law to enforce the whole of their moral code, only that
in the abstract-before we know what moral rules the moralist actually has-any moral rule might in principle be
enforced by the law. Cf para C.82: 'The cogency of the moralist's arguments is inevitably linked to the particular
examples which she is able to describe and the candidates for criminalization which they suggest. Her arguments
must therefore be judged on their individual merits and no general treanent is possible.' It is perfectly coherent
for a person to argue that some of his moral beliefs should be underwritten by criminal sanctions (eg rules against
deliberately hurting animals) whilst others should not (eg the rules about being kind to one's friends). Insofar as
criminalization is supported on grounds other than harm or offence to others, or harm to the actor's own welfare,
I meant this to count as a species of moralism (as Feinberg's definition makes clear).
*' Para C.23.
Cf Raz's important observation that there is little choice but to embrace autonomy for people who live in
societies in which an autonomous life is endorsed as the ideal of a life well-lived: The Moraliy,of Freedom, at 390-5.
 Oxford Journalof Legal Studies VOL. 17

law-makers to live up to their liberal pretensions; or at least to supply a principled

argument in support of paternalistic, moralistic and/or illiberal criminal laws."
Objections (4) and (5) both concern the nature of liberal principles of
criminalization, and may be taken together. My response has five main strands
and a brief preamble. The Appendix was concerned, as I have said, to develop
a framework for thinking critically about criminalization. It employs stylized
philosophical 'perspectives' (some might say caricatures) which represent con-
flicting clusters of arguments about the moral limits of the criminal law. It was
not claimed that any of these incompletely specified and somewhat crude models
represents the totality of anybody's actual beliefs about consent and criminal
liability; still less was any perspective presented as a fully-articulated manifesto
for criminal law reform. So the first thing to be clear about is that the Appendix
does not oblige anybody to 'sign up' for anything. Secondly, any attempt to
define 'liberalism' (or paternalism or moralism) is bound to be controversial.
Each of the Appendix's three perspectives is in reality a developing philosophical
tradition, or group of traditions, characterized by amorphous boundaries and
lively internal debate. As with membership of political parties, philosophical
affiliation is a matter of great importance to those who identify themselves with
one particular tradition. Thus, the liberal credentials of philosophers explicitly
claiming a liberal heritage may be doubted by other liberals with a nose for
heresy,7" whilst, on the other hand, the writings of those who prefer not to call
themselves liberals7 might nevertheless be accommodated within the tradition.
But whatever the significance of these philosophers' turf wars, it would be
inappropriate to clutter up a Law Commission consultation paper with their
(necessarily protracted) investigation. For the vast majority of consultees, un-
familiar with the philosophical literature, these debates are of little or no
consequence. Those who are already passionate about them, meanwhile, are
unlikely to learn anything from the Appendix's rudimentary analysis. Thirdly,
although some liberals do express concern about the potentially expansive scope
of the offence principle,72 it is a sufficiently familiar feature of liberal arguments
about criminalization to count as a 'liberal' principle for our (heuristic) purposes.7"
Fourthly, if objection (5) is well-founded objection (4) falls away, because if the

69 Cf para C.109: 'Much of the exposition has proceeded in the form of a debate between liberalism and its
critics. This is not merely coincidental. The liberal values of autonomy, liberty, tolerance and pluralism strike
many people as attractive.... Those who would advocate criminalization from a paternalistic or moralistic
perspective must overcome powerful and widely-accepted liberal counter-arguments. The presumption in favour
of individual autonomy places the burden of persuasion firmly on the shoulders of liberalism's opponents.'
70 Most liberals are, for example, uncomfortable with Joseph Raz's perfectionist theory of liberalism, because

liberals generally identify with some version of anti-perfectionism: see, eg, Jeremy Waldron, 'Autonomy and
Perfectionism in Raz's Morality of Freedom' (1989) 62 Southern CaliforniaLaw Revieu, 1098; and for a useful
summary of this point, see Stephen Mulhall and Adam Swift, Liberalsand Communitarians (Blackwell, 1992) ch 8.
Fortunately, we do not need to pursue this complication here because Raz's endorsement of the harm principle
(see The Morality of Freedom, at 412-20) qualifies him as a 'liberal' in the Appendix C sense, at least in relation
to state coercion by criminal law.
71 See, eg, Nicola Lacey, State Punishment: PoliticalPrinciplesand Community Values (Routledge, 1988).
72 Eg Andrew Ashworth, Principles of Criminal Law (OUP, 2nd edn 1995) at 45-7.
73 Joel Feinberg, Offense to Others (OUP, 1986); Herbert Packer, The Limits of the CriminalSanction (Stanford
University Press, 1969) ch 16; H. L A. Hart, Law, Liberty and Morality (OUP, 1963) at 38-48.
AUTUMN 1997 Consent in the Criminal Law 411
offence principle collapses into the harm principle liberals have no reason to
object to it. But, fifthly, I doubt that the offence principle does collapse into the
harm principle, as Shute claims it does, because the state may have a duty to
prevent autonomy-infiinging offence even where its victims have no right not to
be offended.7" This seems to be one significant implication of Raz's argument
that although the state has a duty to promote the collective good by creating
social conditions in which its citizens may live autonomous lives, no individual
has a right to an autonomous life." It is not incoherent (and it may sometimes
even be true) that the state should ban the public display of dirty pictures but
that nobody has a right not to be offended by their public display.
Finally, we come to the somewhat curious objection (6), which need not
detain us long. It is of course true that prominent liberals have deployed the
harm principle in order to argue against particular criminal prohibitions,76 but
it does not follow that in 'traditional liberal thinking' the harm principle is always
(in Shute's terms) a 'principle of exclusion' rather than a 'principle of inclusion'.
This claim is erroneous because the harm principle is typically used in both
exclusionary and inclusionary senses, to help us to decide what to criminalize
as well as what to leave alone. Nor is this at all surprising because, apart from
the obvious point that any exercise in boundary-drawing involves specifying
criteria to determine what is 'in' as well as what is 'out', liberalism is centrally
concerned with the legitimacy of political authority and the exercise of coercive
powers by the state.77 Thus, Mill's classic statement of the harm principle actually
starts with an inclusionary proposition:
[T]he sole end for which mankind are warranted, individually or collectively, in
interfering with the liberty of action of any one of their number is self-protection ...
[T]he only purpose for which power can be righzfully exercised over any member of a
civilized community, against his will, is to prevent harm to others. His own good,
either physical or moral, is not a sufficient warrant."5

Likewise, in a passage actually cited by Shute in support of his interpretation of

'traditional liberal thinking', Joseph Raz writes that '[t]he [harm] principle asserts

74 According to Shute, the Appendix's characterization of the offence principle implies that: (1) the offence
principle only extends to violations of rights; and (2) its application can be 'settled by abstract reasoning alone'
(6Q2). There is no textual support for (1) in the Appendix. True, the point is not there made explicit; I am making
it now. As for (2), this strikes me as a surprising and rather uncharitable interpretation of my text. The allegation
is that I have misread Feinberg, who is much more careful than me in explaining that the application of the offence
principle is not simply a matter of abstract reasoning. Yet the Appendix expressly says that the application of both
the offence and the harm principle is inevitably controversial (par C.29). To emphasize the point I quoted from
both Feinberg and Raz to this effect. Admittedly, these quotations only refer to the harm principle. However, after
briefly revieing some of the 'mediating maxims' proposed by Feinberg to flesh out the harm principle, para C.32
continues: 'In the same way, the offence principle can be made more determinate, and thereby suitable for practical
application, with the help of additional maxims'. If this is insufficient to put the point beyond doubt, let me make
it clear now that translating the offence principle into practice is absolutely and irremediably a product of
controversial moral reasoning.
" The Alorality of Freedom, Parts III-V.
7, One of the most celebrated examples is surely H. L A. Hart's essay on the criminalization of sexual morality,
Law, Liberty and Aforalit, (OUP, 1963).
" See, for example, Joseph Raz, The Morality ofFreedom (OUP, 1986).
71 John Stuart Mill, On Liberty (Penguin, 1985 [1859]) at 68 (emphasis supplied).
412 Oxford Journalof Legal Studies VOL. 17

that the only purpose for which the law may use its coercive power is to prevent
harm'.79 In truth, the only political philosophy that does not need a justificatory
account of state coercion is anarchism."0 (Anarchist political philosophers are of
course fully preoccupied with conundrums of their own.)

In Conclusion: A Pleafor PrincipledLaw Reform

It has been argued: (1) that Consent in the Criminal Law lacks adequate philo-
sophical foundations; (2) that the Commission builds its proposals on sand
because its analysis proceeds from two mistakes-one descriptive, one norm-
ative-about paternalism; and (3) that the philosophical framework outlined in
Appendix C of the Paper represents a better way of thinking about the role of
consent in the criminal law and options for its reform. Why did the Commission
go so badly wrong?
Perhaps the clearest indication of the Law Commission's general approach to
its work, and the best clue to Consent in the CriminalLaw's principal flaw, is to
be found in paragraph 2.14 of the Paper, where the Commission explains that:
for this second consultation exercise we consider it best if we adopt an essentially
pragmatic approach. It is obvious to us that if our eventual recommendations do not
follow what we perceive to be the grain of contemporary majority attitudes within
Parliament to questions of criminalization they are unlikely to be taken at all seriously
by those who are ultimately responsible for taking decisions about the future shape of
the criminal law.
That the Commission should choose pragmatism over principle is perfectly
understandable. After all, a succession of its papers and reports can be found
mouldering in ministerial intrays, 1 and the general public is, for the most part,
either ignorant and indifferent or, primed by tabloid misinformation, 2 ignorant
79 Joseph Raz, The Morality of Freedom, at 400 (emphasis supplied).
so Cf Robert Paul Wolff's argument that '[i]f all men have a continuing obligation to achieve the highest degree
of autonomy possible, then there would appear to be no state whose subjects have a moral obligation to obey its
commands. Hence, the concept of a de jute legitimate state would appear to be vacuous, and philosophical
anarchism would seem to be the only reasonable political belief for an enlightened man.' R. P. Wolff, 'The Conflict
between Authority and Autonomy', in Joseph Raz (ed) Authority (Blackweli, 1990).
81 In its latest annual report the Commission confesses to being 'troubled by the continuing failure to implement
our reports on criminal law, which would do much to improve the law. For instance, the law on offences against
the person continues to be criticized by judges and the calls for the implementation of our major report on Off cnccs
Against the Personhave been made continuously and loudly by judges and academics. We are particularly concerned
that Parliament has not been able to find time to implement our generally acclaimed two clause Bill included in
our report on Compiracyto Defraud.' Law Corn No 239, above n 20 para 1.25.
82 During the period of my consultancy to the consent project, individual Law Commissioners were being
subjected to a campaign of personal vilification by sections of the tabloid press who opposed the original draft of
the Family Homes and Domestic Violence Bill (for references and a sample of the headlines see S. M. Cremey,
'The Law Commission: True Dawns and False Dawns' (1996) 59 MLR 631 at 632-3). But the best example of
tabloid ignorance and hostility relates to the consent project itself. Under the headline 'Why these perversions
must never be legalised', William Oddie wrote: 'Why are the trendy lawyers on the Law Commission even thinking
about accepting what is so patently abnormal? The answer is that the Law Commission has its intellectual birth
in the Sixties. It is obsessed with sweeping away taboos and outworn shibboleths. Its mission is to rationalise
centuries of British law in the light of its own creaking modernist assumptions... . Does not another que.stion,
therefore, follow? Not: "Should we legalize S&M?" but "Is there now any conceivable justification for the
Commission's continued existence?" For, if ever there was an outworn shibboleth, here it is.' Daily Mail, 15
December 1995. (My thanks to Ewan Paton for drawing this marvellous piece of journalism to my attention.)
AUTUMN 1997 Consent in the Criminal Law 413
and hostile towards the Commission's work. Understandable but not, I think,
acceptable, and certainly not desirable. Criminal justice matters are too vulnerable
to being treated like party-political footballs, especially in a pre-election period
in which the major political parties fear being perceived as 'soft on crime' as the
electoral equivalent of falling on their own swords. Law reform politics are, no
doubt, the art of the possible, but in limiting itself only to those proposals which
might be acceptable to the government of the day the Commission treads a
dangerous path, one that ultimately gives way to the lowest common denominator
of populist law and order campaigns. And if reform proposals are offered up
ball-shaped to accommodate party political match-play, all they are entitled to
expect is a kicking.
Because we are lazy and careless about other people's rights and interests,
especially if we do not directly share them, we need constantly to remind
ourselves that determining the proper ambit of the criminal law is an exceptionally
serious matter, not only for the individuals who will as offenders suffer the sting
of censure and endure the material pains of punishment, but also for society at
large. Political communities must, through their chosen institutions of gov-
ernment, decide how to deploy precious resources to protect their vulnerable
members and secure justice for victims of wrongful loss and injury, whilst striving
to safeguard the rights of suspects, defendants and offenders. The state certainly
has important criminal justice responsibilities, but (what is not so immediately
obvious or readily understood) too much criminal law, leading to a 'crisis of
over-criminalization', 83 may be just as destructive of the fabric of community as
too little state intervention in people's lives. This is not the place to launch into
the details of the perennial democratic project of constructing a criminal law
that occupies defensible middle ground between the polar evils of anarchy
and totalitarianism. The essential point for present purposes is that criminal
prohibitions should result from properly informed, self-conscious and principled
decision-making; not from a default-option or pragmatic a priori assumption.
What would it mean to base law-reform proposals on arguments of principle?
It would mean providing more convincing arguments to support re-
commendations for criminal laws than one finds in Part II of Consent in the
CriminalLaw: setting out to second-guess the legislature simply will not do. It
would mean addressing and satisfactorily resisting pertinent counter-arguments,
which is sometimes conspicuous only by its absence in the Paper. And it would
mean having the moral courage to pursue arguments of principle to their logical
conclusion, even if-especially when-that entails espousing unpopular opinions
or supporting marginalized groups in society; to 'make common cause in defence
of freedom, with heretics generally', as Mill once urged.8" I have suggested that
a philosophical framework of the type set out in Appendix C, and defended in
this article, might facilitate that process of reasoning and critical reflection.

" Se% Sanford H. Kadish, 'The Crisis of Overcriminalization', reprinted in his Blame and Punishment: Essays
in the Criminal Law (AMacmillan, 1987) ch 2.
"l John Smart Mill, On Liberty (Penguin, 1985 [1859]) at 66.
414 Oxford Journalof Legal Studies VOL. 17

However, nothing said in this article questions the need for pragmatic line-
drawing in the criminal law. On the contrary, I consider criminal prohibition to
be a very crude instrument of social regulation which is quite unable to reflect
all the fine-grain of moral discrimination. It might even turn out that a genuinely
open enquiry, unfettered by the Commission's self-imposed 'pragmatic' con-
straints, would arrive at similar recommendations in relation to some if not most
of the activities addressed in the Paper. But that would be a conclusion to be
drawn at the completion of the investigation. As such it would be informed by
a clear understanding of the principled basis for criminalization and would be
accompanied by frank awareness of any compromise or sacrifice of principle
necessitated by the practicalities of criminal justice administration or the politics
of law reform. An enquiry that from the beginning labours under limiting and
unwarranted restrictions is, by contrast, all too likely to pile confusion on
compromise, and error on confusion. By failing to adopt a principled approach,
and in consequence remaining wedded to a discredited quantitative assumption,
the Commission makes an elementary error which casts a long shadow over its
good work in the remainder of the Paper.