Reflections on the criminal relevance of consent: scope

Abstract

Determining the meaning of consent raises a number of questions, since there are implications in a wide range of almost conflicting criminal justice issues. On the one hand, it has effects on establishing whether or not a criminal offence has been committed, given that a conduct falling or not under a criminal provision can be a matter of consent. On the other hand, the consent of the legal asset holder in a particular case can exclude or mitigate the criminal nature of a conduct generally falling under a criminal provision. Likewise, lacking consent itself can be the ground for criminal liability for those who are obliged to acquiesce in an action to be performed. Additionally, consent cannot be dealt in an uniform way, but depending on the field and the context: what could be seen as consent within the framework of the law of property, might not be considered as such in the field of freedom, particularly of sexual freedom. Therefore, legal casuistry rather than general notions could be analyzed hereinafter. However, only exemplary cases are addressed in this paper in order not to make it too lengthy.