Consensual Crime - Examples

Examples

The generally accepted definition of a consensual crime is a criminal act committed by two or more people, who consent to involvement, and does not involve any nonconsenting individuals. The following is a list of criminal acts in various societies at various times and in different societies, where the issue of liability hinges on consent or the lack of it:

• Unlicensed prize fights and other criminal activities of a sporting nature where the players consent and the audience actively approves of what they see (in English law, see R v Coney).
• Murder or incitement to murder where one person actively solicits others to terminate their life, or the life of another. For example, a driver may be trapped in a burning tanker full of gasoline and beg a passing armed police officer to shoot him rather than let him burn to death. These situations are distinguishable from soliciting the cessation of life-sustaining treatment so that the injured person may die a natural death, or leaving instructions not to resuscitate in the event of death. Note that, in English law under the Suicide Act 1961, suicide is not a crime committed by a person who fails to die. Thus, those who assist in a failed suicide would be participants in a victimless crime because the would-be suicide cannot be tried. If the suicide succeeds, the legal issue is whether the assistants actively facilitated the death, or as doctors, nurses or carers, omitted to prevent natural death in circumstances where society believes they have no legal duty to take that preventive action. Some countries have characterised some of the possible situations as assisted suicide, while others make no judgment by imposing a separate label on conduct within the field of homicide. The issues may more generally relate to euthanasia where society debates whether, and in what circumstances, to terminate the lives of its citizens. Whichever philosophical route is followed, the laws will either criminalize any situation in which death results or permit death to be caused under controlled circumstances.
• Sexual and non-sexual assaults involving the use or threatened use of violence which causes injuries and which would be criminal in all other situations (e.g. sadism and masochism). In more extreme cases of edgeplay where a rape fantasy may be enacted by prior agreement, the offence of rape will not be committed because the "victim" has actually consented to sexual intercourse. The issue of consent in fact, or belief in the existence of consent, is fundamental to determining whether a rape has, or has not, been committed. In English law, for example, s74 Sexual Offences Act 2003 provides that consent is present "if he agrees by choice, and has the freedom and capacity to make that choice". If the "victim" is unconscious when penetration occurs, he would not be consenting, but this might not be rape if there is a subsisting sexual relationship, e.g. the couple are married, and the other might reasonably believe that consent to intercourse existed by virtue of that relationship. Note that, if the "victim" is physically injured, the causing of those injuries can still be charged as an assault whether there is actual consent or not. As a defence, offenders may plead that the other consented to the acts, and argue that any injuries sustained were accidental rather than intentional, leaving it to the jury to make a decision on their truthfulness.
  • See more fully the discussion in Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law's Authority (Ashgate, 2011