The Moral Limits of Consent as a Defense in Criminal Law

DENNIS J. BAKER

Waiving rights grounded in the exercise of personal autonomy is different from waiving
rights that violate a person’s human dignity (rational autonomy) – the main point of the
article is to conclude that, regardless of consent, certain grave harms that violate a person’s
dignity as a human being are criminalizable.

A. OBJECTIVE REASONS FOR LIMITING THE SCOPE OF CONSENT AS A DEFENSE [8 pages]

 The classic objective principle for checking whether criminalization decisions are
morally justifiable – Harm Principle by J.S. Mill.
1. However, the author adopts Feinberg’s formulation of the Harm
Principle – provides useful criteria for determining whether conduct is
objectively harmful for the purposes of criminalization.
 The author relies on the assumption that:
1. There is a valid distinction between positive and critical morality, and
2. Wrongful harm to others provides an objective justification for
invoking the criminal law.
 Debate on positive/critical morality
1. Devlin – it is fair to criminalize conduct like homosexuality because
private vice might lea to social disintegration and anarchy – not
objective and hence, no sound basis for invoking the criminal law.
2. Hart – conduct should not be criminalized just because the majority
dislikes it – criminalization has to be deserved and deservedness can only
be determined by referring to objective moral reasons like harmdoing
and culpability.
 However, conventional morality [penal populism in the modern context] is often
what prevails – does not depend on sound rational principles but rather on the
general view of the public on some issue.
 An objective moral argument could challenge the criminalization of many
harmless acts that do no warrant penal punishment but are labelled as criminal due
to conventional morality (possessing sex toys, begging passively)
 The Harm Principle covers conduct that causes actual harm as well as conduct that
poses a real risk of harm to others.
 1. Differs from Mill’s principle in the sense that it is not an exclusive
ground for criminalizing conduct.
2. According to Feinberg, legal moralism and legal paternalism are
insufficient grounds for criminalizing conduct.
 The paper examines the cases of consent in the context of serious harmdoing to
others (amputation, breaking bones, eating the consenter etc.)
 Consent:
1. It is an objective reason but consent is not absolute.
2. It protects personal autonomy but does no include the degradation of
the human dignity of the consenting party.
3. Personal autonomy (freedom of a person to choose their own lives) is
separate from rational autonomy (dignity) – you can alienate your personal
autonomy but not your rational autonomy – for example, a prisoner gives
up his personal autonomy but should still be treated as a human being.
4. Thus, the author says that consent is a valid defense unless the harm
crosses the threshold of degrading the human dignity of the consenter to a
serious degree.
 It is not the gravity of the harm but rather the fact that harm is
directly inflicted on the personhood of a human being.
 Feinberg says that the type of wrongful harm inflicted in R v. Brown and R v.
Konzani are morally acceptable because genuine consent nullifies the
wrongfulness of such activities.
 Most authors are of the opinion that the majority decision in Brown are essentially
paternalistic interferences – though the decision says that there is a need to
protect the society from sadomasochism, it does not show exactly how this
conduct is harmful to anyone other than the parties involved in the act.
1. The author says that the conventional morality in the majority decision
in Brown can be made to be in tune with objective morality – he considers
the acts to be harmful in an objective sense and that consent is not enough
to override this type of wrongful harmdoing because it degrades the
dignity of the consenter.
B. HARM AND CONSENT: STUBBORN COUNTEREXAMPLES [2.5 pages]
 It is wrongful harmdoing that is criminalizable and not mere harmdoing.
 The three types of harm according to Feinberg:
1. Harm as damage
2. Harm as a setback to interests
3. Harm as wrongdoing

Harm used in the Harm Principle is a combination of (2) and (3).

 The author says that there is no harm principles that can justify criminalization of
acts that cause setbacks to interests without violating rights – even if a person
loses their arm by walking into the path of a vehicle, though her interests have
been set back, the driver took reasonable precautions and hence is not at fault –
accidents are harmful but not wrongful.
 Feinberg says that, while those who consent to serious harmdoing are harmed,
that harm is not wrongful because consent nullifies the wrongdoing involved (he
says that consent is absolute).
o However, he also says that such conduct could be criminalized because the
consenter is dead and the genuineness of the consent may be called into
question.
o McConnell argues that allowing consent to justify killing makes the lives
of everyone in the society less secure because it is difficult to determine
the authenticity of the consent in those cases where the victim is dead.

C. OBJECTIVE MORAL ARGUMENTS FOR LIMITING CONSENT IN THE R V. KONZANI CONTEXT

[10 pages]
 Irreparable harm v. wrongful harm – should it be made permissible to allow a
person to consent to being wrongfully harmed?
 Two ways in which a person can degrade her humanity:
1. By alienating her right to life along with which she forfeits her
humanity.
2. By alienating her right to maintain a minimum degree of dignity as a
human being.
 It is the priceless and non-substitutable dignity and worth of persons that make
them objects of respect.
 Categorical Imperative – foundation of the principle of respect for persons:
1. One must not act on maxims that use persons as mere means –
humanity is to be treated as an end.
2. We are required to avoid the pursuit of ends that others cannot share.
 R v. Konzani – stronger case for limiting consent as a defense because the harm
inflicted is serious (consent to being infected with HIV) and it is inflicted
recklessly rather than intentionally.
o The court observed that if the complainant had consented to contracting
HIV, then it would have been a valid defense – here, recklessness is
established because the defendant saw that his nonconsenting partner
might suffer irreparable bodily harm but still chose to expose her to that
risk.
o The author disagrees with the above observation of the court – since it is
hard to conclusively determine whether nonconsensual sex is a risk to
human dignity, the mental element for criminalization in this context
would require that the harm-doer knew that there was a real risk of
harm being caused.
o Why can you not substitute intention to cause harm with recklessness or
why is serious endangerment not a threshold for ascertaining actual harm.
o The problem is not about a person causing harm to themselves but
rather, it is about a second party using that person as a means to an
end.
 The harm principle only criminalizes those cases where a person harms others –
does not include self-harm.
 Kant – one owes oneself the same respect as one owes others – when x allows y to
kill and eat her, x allows y to use her as a mere means and also alienate her dignity
– she ceases to be a person.
 A person alienates her humanity if she rids herself of the capacity of choice –
maintaining humanity is about retaining a sufficient degree of freedom and power
to pursue your own purposes.
  In cases where the person kills her and then eats her, consent will not be sufficient
to nullify the wrongdoing because the victim ceases to be a person immediately –
in HIV cases, the consenter does not cease to be a person immediately; she is still
alive but the HIV transmission results in irreparable harm regardless of whether
the consenter has alienated her right to life – this irreparable harm gives a
sound objective justification for limiting consent.
 There may be exceptions to the HIV rule in certain cases – the bottom line is that
if the disease is accidentally transmitted even though the couple took reasonable
precautions, then there should be no criminal liability.

D. R V. BROWN: PURPOSELESS HARM AND RESPECT [3.5 pages]

 Kant’s Categorical Imperative – cannot be used along with the Golden Rule (do
unto others as you would have others do to you)
1. Because the Golden Rule provides a means for converting self-
regarding moral judgments (how you want others to treat you) into other-
regarding moral judgments (how you should treat others).
2. Applying the golden rule to a sadomasochist only gives the conclusion
that she ought to harm others since she has consented to being harmed
herself – flawed principle.
3. Categorical Imperative requires no presumed moral judgment – it does
not require self-regarding moral judgments as the basis of other-regarding
moral judgments.
4. Kant also says that Categorical Imperative can also be used to
demonstrate that the wrongness of inflicting harm on others cannot be
negated by consent even if the consent is fully informed and the harm is a
source of great pleasure for the victim.
5. Categorical Imperative cannot be used to distinguish moral wrongs that
warrant a criminal law response from those that require a civil law
response.
6. Serious physical injury and trivial physical injury is equally wrongful.
7. The problem with this is that the deontological nature of Categorical
Imperative says that one should look at whether the act is right or wrong
under a given set of rules and not according to the consequences of the act.
 But, the author argues that it is necessary to consider objective
consequences to determine whether the violation of dignity is worthy
of criminalization.
 In Brown, the author says that the violation of dignity was not serious enough to
justify criminalizing the harm-doers – the author says that criminalizable
disrespect for dignity is disrespect that violates the consenter’s dignity in a
serious way.
 It Brown, the harm was wrongful because it violated their dignity as human beings
(and not because it violated the consenters’ rights not to be harmed under the
Harm Principle) – it is the degree of disrespect that makes the conduct in Brown
criminalizable and not the disrespect itself.
 Thus, the author concludes by saying that Brown is a borderline case – there was
serious disrespect but at the same time, the consenters exercised personal
autonomy and the harm was not permanent or irreparable.

E. OTHER CONSIDERATIONS [2.5 pages]

 High threshold for overriding consent – the factor to be considered ultimately is
the impact on the dignity of the consenter.
 In this section, the author considers incidents like plastic surgery and football,
where there is a high risk of being harmed and why they are allowed.
 These activities are allowed because the ultimate aim of engaging in these
activities is to advance the person’s interests and their human dignity and any
long-term harm is merely a side effect of the activity itself.
 Unlike sadomasochism, plastic surgery is not conduct that aims to cause harm or
violate the dignity of the consenter.
 This same logic cannot be applied to sadomasochism – though they may argue
that the activities are to achieve sexual gratification, this motive cannot be
separated from the violation of dignity.
1. The sexual gratification can only be chieved when the harm is being
inflicted – there is no overall advancement of dignity involved.

F. CONCLUDING REMARKS [2 pages]

 Feinberg’s principle does not explain the wrongness of gravely harming a
consenter – the principle allows the consenter to exercise her personal autonomy
to waive off the right not to be harmed.
 Wrongdoing per se is not an objective basis for criminalizing conduct.
1. Used Kant’s theory pf respect for dignity and the serious harmful
consequences to explain why it is fair to criminalize harmful activities
even when there is consent.
 There needs to be a high threshold for protecting the cardinal right to personal
autonomy – consent cannot be limited in those cases where the harmdoing is
reparable and somewhat borderline.
 A person ought not to rely on consent as a defense when the harm inflicted is of
an exceptionally serious kind.