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12 Ohio St. J. Crim. L. 171 (2014-2015)
The Meaning of Consent

handle is hein.journals/osjcl12 and id is 177 raw text is: The Meaning of Consent

Vera Bergelson*
It is often said that consent is morally transformative, even magical: it
transforms what otherwise would be illegal conduct into conduct that is entirely
legal.1  As the famous maxim goes: volenti non fit injuria-a person is not
wronged by that to which he consents.2 But how literally should we read this
maxim? Does consent of one person always have the power to change the moral
and legal character of another person's actions? It certainly precludes a number of
serious offenses. Quoting Heidi Hurd, consent turns a rape into love-making, a
kidnapping into a Sunday drive, a battery into a football tackle, a theft into a gift,
and a trespass into a dinner party.,3 This generalization, however, should be taken
with a grain of salt: there are serious offenses (such as battery or homicide) that
remain criminal regardless of the victim's consent.
Numerous limitations curtail the magical powers of consent. At a minimum,
legally valid consent must be rational and voluntary, that is, freely given and
informed. Consent given under certain conditions (fraud infactum or duress) or by
certain groups of people (e.g., children, mentally ill, severely intoxicated), in most
instances, is deemed void.4
All these limitations have been in the center of the academic and public
attention for a long time. When may consent be deemed voluntary; can it ever be
deemed voluntary enough to play a normative role; who may be regarded a rational
decision.maker; what actions should be excluded from the protection of consent-
these and other questions have been raised in the context of assisted suicide,
experimental medical treatment, underage sex, sex with the mentally ill,
nontraditional sexual practices (e.g., sadomasochistic encounters or erotic
asphyxiation), consumption of drugs, dangerous competitions (e.g., drag racing),
and so on.5
* Professor of Law, Robert E. Knowlton Scholar, Rutgers School of Law-Newark.
See, e.g., Heidi M. Hurd, The Moral Magic of Consent, 2 LEGAL THEORY 121, 121, 124
(1996).
2 Terence Ingman, A History of the Defence of Volenti Non Fit Injuria, 26 JURI. REV. 1, 4
(1981).
3  Heidi M. Hurd, Blaming the Victim: A Response to the Proposal That Criminal Law
Recognize a General Defense of Contributory Responsibility, 8 BUFF. CRIM. L. REV. 503, 504 (2005).
4  Larry Alexander, The Moral Magic ofConsent (l), 2 LEGAL THEORY 165, 166-67 (1996).
5 See, e.g., THE ETHICS OF CONSENT: THEORY AND PRACTICE (Franklin G. Miller & Alan
Wertheimer eds., 2010); ALAN WERTHEIMER, CONSENT TO SEXUAL RELATIONS (2003); PETER
WESTEN, THE LOGIC OF CONSENT: THE DIVERSITY AND DECEPTIVENESS OF CONSENT AS A DEFENSE TO
CRIMINAL CONDUCT (2004).

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