The Moral Limits of Consent as a Defense in the Criminal Law

12 New Crim. L. Rev. 93 2009

30 Pages Posted: 21 May 2012 Last revised: 21 May 2012

Date Written: April 28, 2012

Abstract

In this paper I aim to examine the objective limitations of consent as a defense to criminal harm doing. This paper starts by briefly outlining the idea of objective morality (critical morality) as the proper basis for criminalization decisions and argues that there are also objective rather than mere conventional reasons (positive morality) for limiting the scope of consent as a defense in the criminal law. The idea of consent is in itself an objective reason for excusing wrongful harm doing to others. However, it can be overridden by other objective considerations of greater importance. In this paper, I argue that it is only wrongful harm doing that is criminalizable, as we do not criminalize mere accidents. Furthermore, I argue that a person can as an exercise of her personal autonomy consent to certain harms. However, there is a crucial difference between waiving rights that are grounded in an exercise of personal autonomy and waiving rights that violate a person's human dignity: rational autonomy. I conclude that regardless of consent, certain grave harms violate a person's dignity as a human being and therefore are wrongful and criminalizable.

Keywords: consent, criminal law

undefined

Suggested Citation

Baker, Dennis, The Moral Limits of Consent as a Defense in the Criminal Law (April 28, 2012). 12 New Crim. L. Rev. 93 2009, Available at SSRN: https://ssrn.com/abstract=1973331

Dennis Baker (Contact Author)

University of Cambridge ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

0 References

    0 Citations

      Do you have a job opening that you would like to promote on SSRN?

      Paper statistics

      Downloads
      2,107
      Abstract Views
      7,236
      Rank
      15,732
      PlumX Metrics
      Plum Print visual indicator of research metrics
      • Citations
        • Citation Indexes: 1
      • Usage
        • Abstract Views: 7211
        • Downloads: 2104
      • Captures
        • Readers: 6
      see details