People's right to consent to pain, injury or death has always been one of the most controversial issues in criminal law and moral philosophy. In recent years, that issue has moved to the forefront of public, legislative, and academic debates in the United States and abroad due to a series of high-profile criminal trials, which involved consenting victims in various contexts--from sadomasochism and cannibalism to experimental medical treatment and mercy killing.
Currently, American criminal law does not recognize consent of the victim as a defense to bodily harm, except in a few historically defined circumstances. That rule has been criticized for its arbitrary scope, outdated rationales, and potential for moralistic manipulation. Yet, despite those criticisms, no principled alternative has been worked out. This article is an attempt to develop a set of normative requirements for a new rule governing consensual bodily harm and a general defense of consent.
The new rule would treat valid (voluntary and rational) consent of the victim as a defense of partial or complete justification. Partial justification is warranted by the mere fact that consensual harm does not involve at least one aspect of a paradigmatic offense, namely a rights violation. The victim was a "co-author" of his own injury and thus the perpetrator should not bear full responsibility for it. Complete justification, on the other hand, would require that, in addition to the victim’s consent, the perpetrator had a "good reason" for his harmful action: he intended to achieve a better balance of harms/evils and benefits and, in fact, managed to achieve it. This article rejects the absolute character of today’s law. Instead, it promotes a balancing test that takes into account the severity of harm to the victim's interests and dignity as well as the importance of the reasons that caused the harmful act.
Criminal Law | Criminal Procedure
Date of this Version
Vera Bergelson, "The Right to Be Hurt. Testing the Boundaries of Consent." (May 2006). Rutgers Law School (Newark) Faculty Papers. Working Paper 37.
75 Geo. Wash. L. Rev. 165 (2007)