Consent of the victim: When can you give it?

Consent of the injured party as a circumstance precluding illegality

The consent of the victim is one of the circumstances precluding illegality. This is a situation in which an act which would normally be a criminal offence or misdemeanour is not considered unlawful and therefore not punishable because it is an exceptional situation recognised by law in the circumstances.

Imagine, for example, a situation where you break into someone’s house by force. That, without context, would certainly be a criminal activity. However, if you add the context – a flood slowly inundating said house and an incapacitated grandmother unable to get out on her own – then it would not be criminal activity.

In total, there are five types of circumstances that preclude illegality:

1. extreme hardship,
2. necessitous defense,
3. consent of the victim,
4. permissible risk,
5. justified use of the weapon.

Consent of the injured party – definition and conditions

This institute allows an act that would otherwise be considered a criminal offence not to be punishable if the victim has given his or her consent. In order to constitute consent of the victim, several conditions must be met:

The person must be capable of giving consent

Capacity to give consent means that the person giving the consent must be able to fully understand the nature of his or her conduct, its consequences, and be able to exercise rational control over that conduct. This capacity relates primarily to capacity, i.e. whether the person is legally capable of acting validly.

In practice, this means that:

• The person must be of legal age and have a legal capacity.
• The person must not be under the influence of drugs, alcohol or other substances that could affect his or her capacity to make decisions.
• The person must not be mentally ill or suffering from a disorder that could affect their ability to understand the consequences of their actions.

Consent relates to a matter about which a person may make a decision

Consent must relate to a matter over which the person has decision-making power, which means that a person can only consent to an action that relates to his or her own rights or interests over which he or she has legal control.

In practice, this means that:

• A person can give consent to medical intervention on his or her body because he or she has the right to make decisions about his or her bodily integrity.
• A person can give permission to take part in a boxing match.
• Conversely, a person cannot give consent for acts that would affect someone else’s rights (e.g., they cannot give consent for someone else to be injured) or that would be against the law (e.g., they cannot give consent for themselves to be murdered).

Consent must be given in advance

Consent must be given before or at the same time as the act which might otherwise be considered unlawful. This means that the victim must clearly and knowingly consent to the conduct before it occurs, or at least at the time it occurs.

There is also the possibility that consent may be given after the act has been committed, but only under certain conditions. In such a case, it is necessary that the perpetrator could reasonably have assumed that the victim would have consented to his conduct, given the circumstances and his circumstances, even if that consent was not obtained in advance or at the same time as the act.

Let us explain how this may look in practice by way of examples:

• Prior consent: a patient arrives at the hospital and, after consulting a doctor, is informed that a surgical procedure is necessary to treat her illness. The doctor explains to her all the risks and benefits of the operation. After careful consideration, the patient agrees to the operation and signs an informed consent form.
• In-progress consent: During an acute medical procedure, an unexpected complication occurs that requires immediate further intervention. The physician performing the surgery informs the conscious patient of the need for this further intervention. The patient gives her consent to avoid more serious consequences.
• Consent after the action has been performed: the patient is brought to hospital unconscious after a serious accident and life-saving surgery must be performed immediately. As it is not possible to obtain his consent, the doctors perform the operation.

Consent is voluntary, specific, serious and intelligible

Consent must be voluntary, specific, serious and intelligible. The various concepts can be interpreted as follows:

• Voluntary: Consent must be given without any coercion, physical or psychological compulsion. If consent were coerced, it would not be valid.
• Definite: Consent must be clearly defined and must relate to a specific act. Vague or general consent is not valid.
• Serious: Consent must be meant seriously, not in jest or in situations where the person is not acting with full awareness of the consequences.
• Understandable: Consent must be expressed in such a way that it is clear what the person means and that they understand what they are authorizing.

In practice, this means that, for example, a person consenting to a medical procedure must be clearly informed of the nature of the procedure and its risks, and their consent must be obtained without any coercion.

Consent of the victim – examples

The consent of the victim can be found in various areas of life. Most typically:

• For medical procedures: patients commonly give informed consent for operations. Without this consent, the procedure could be considered as grievous bodily harm.
• In sports: Contact sports such as combat sports or hockey, for example, carry a risk of injury. Without this consent, any hit or contact could be considered assault or battery.
• On further strikes to the body: If a person wants to get a tattoo or piercing, they are giving consent to skin intervention. Failure to do so could constitute battery.

Summary

Consent of the victim is an important legal institution that allows an act that would normally be considered a crime or misdemeanour not to be criminalised. This principle is essential for the protection of the rights and freedoms of individuals who are capable of making their own decisions about their own affairs and interests. Key conditions include the capacity of the person to give consent, voluntariness, clarity and specification that the consent relates to matters over which the person can make decisions.