This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).
Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.
One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and voluntary. In addition, for complete justification, the perpetrator¡¯s reasons for a consensual injurious act should be subjectively benevolent and the act must produce an overall positive balance of harms and evils, including harm to the victim¡¯s welfare interests and dignity. If these requirements are not met, the defense should be only partial.
Criminal Law | Criminal Procedure
Date of this Version
Vera Bergelson, "Consent To Harm" (July 2008). Rutgers Law School (Newark) Faculty Papers. Working Paper 46.