Apr 15, 2025
Consent as a Ground for Immunity: Scope and Limitations
In criminal law, the question regularly arises about the significance of an otherwise punishable act being carried out with the consent of the person affected by the act. The Roman law principle "volenti non fit injuria" - he who consents suffers no injustice - cannot be unequivocally applied in today's criminal law. This article sheds light on the significance of consent as a ground for exemption from punishment, its limitations, and the requirements for valid consent.
Consent in Criminal Law - Starting Points
The Penal Code does not have a general provision on consent as a ground for exemption from punishment similar to the provisions on necessity and self-defense. This is because the circumstances vary so much in different areas that it is not possible to establish a general rule. The solution must therefore be sought through the interpretation of individual criminal provisions.
Even if the person affected consents, there may be several considerations arguing against allowing the act:
Consideration for the consenting individual (protection against unwise decisions)
Consideration for relatives or other third parties
General moral considerations
Public interests that the criminal provisions are intended to protect
When consent excludes punishment, it is most often because there is no reason to oppose the act when it has occurred with consent. The act is then not only free from punishment but justified. However, in some cases, consent may render the act free from punishment without it being justified in all contexts.
The Significance of Consent in Different Types of Criminal Provisions
Criminal Provisions Protecting Public Interests
For criminal provisions protecting public interests, consent from a private individual generally does not have an exempting effect from punishment. No private individual can give valid consent to the violation of public interests. Even public authorities cannot waive the law unless there is a specific legal basis for it.
Examples of criminal provisions where consent does not exempt from punishment:
Giving false testimony in court
Violation of rationing or pricing regulations
Certain traffic offenses (such as drunk driving)
Environmental crimes
There may be uncertainty about whether a criminal provision is intended to protect private or public interests. The placement in the Penal Code does not always provide reliable guidance. For example, the criminal provisions on mail breaches and burglary are found in the chapter on "Crimes Against Public Order and Peace," but there is no doubt that criminal liability is excluded here if there is consent from the owner.
A doubtful case concerns document forgery. According to case law, it is assumed that consent from the person whose name is forged excludes criminal liability, even though document forgery is often regarded as protecting the public interest in the authenticity of written documents.
Crimes Against Life, Body, and Health
For crimes against life, body, and health, the Penal Code itself addresses the question of the significance of consent through § 235:
In violations of §§ 228 and 229 (assault and regular bodily harm), consent excludes punishment.
If someone is killed (§ 233) or suffers significant bodily harm or health damage with their consent (§ 231), the act is not free from punishment, but the penalty may be reduced below the otherwise prescribed minimum and to a lesser degree of punishment.
The provisions in § 235 apply to duels and joint fights by mutual consent. Here, it will usually only involve minor bodily injuries, which become free from punishment due to consent.
Surgical procedures raise special questions. The starting point is that a patient cannot be subjected to procedures against their will. The possibility of sterilization and castration is regulated in the Sterilization Act, while transplants are regulated in the Transplantation Act. Transplantation from a living donor requires written consent, and the procedure can only be carried out when it poses no imminent danger to the donor's life or health.
In cases of negligent bodily harm or negligent homicide, consent to the risk does not automatically exclude punishment. However, consent becomes a significant factor in assessing what risk is justified, and thereby lawful, to expose another person to. Within sports and artistic performances, fairly broad boundaries for permissible risk must be drawn.
Defamation, Coercion, and Deprivation of Freedom
The law has no provision on consent to defamation, but following the stance the law has taken with bodily harm, consent will exclude criminal liability here as well.
In cases of coercion and deprivation of freedom, it lies in the nature of the crime that it occurs against the will of the person affected. However, there may be a question of the effect of prior consent, for example, when a person allows themselves to be locked in. Such prior consent will largely be exempting when the deprivation of freedom has a justified purpose.
A person can also waive their right to self-determination for a certain period, for example, by admission to an institution for treatment of substance abuse. Such a waiver is unlikely to be valid without special legal authority, which exists in the Social Services Act and the Mental Health Care Act.
Sexual Offenses
In sexual offenses, the law itself expresses the significance of consent. The starting point is that the manifestations of sexual drive are a private matter as long as they only occur with a consenting person. The penal provisions in the law's sexual offenses chapter are an enumeration of cases where there is either no consent or where consent does not have its usual effect due to coercion, deceit, minority, or other deficiencies.
Sexual autonomy must be regarded as an inalienable right, implying that consent loses its effect when withdrawn.
Property Offenses
In property offenses, consent is of great importance, but the situation may differ depending on the nature of the criminal provision:
Theft requires that the removal occurs without the consent of the possessor. If there is consent from the possessor but not from the owner, the act may be assessed as embezzlement.
Destruction of an object belonging to another is free from punishment when the owner has given consent. However, the act may be punishable as a violation of other interests, for example, as animal cruelty if it involves mistreatment of a pet.
In usury crimes, extortion, and fraud, it lies in the nature of the crime that any consent from the victim is induced by undue exploitation, threats, or deceit, and such deficient consent will not have an exempting effect from punishment.
Requirements for Valid Consent
The Age and Maturity of the Giver
In the sexual offenses chapter, the effect of consent is dependent on certain age limits, usually 16 years. The Transplantation Act has an 18-year limit, while the Mental Health Care Act has a 16-year limit.
When such provisions are lacking, no specific age limit can be set. For consent to have an effect, the consenting person must have reached a maturity level where they are capable of understanding the implications of the act and assessing its significance. The more serious the intervention, the more personal maturity is required of the consenting person.
Mental Illness or Weakness
Similar principles apply if the consenting person suffers from mental illness or weakness. The effect of intoxication must be assessed in the same way. Consent from a person who is so intoxicated that they do not know what they are doing will normally not have an exempting effect from punishment.
Deficiencies of Will
The significance of deceit, coercion, or other deficiencies for the effect of consent depends on the nature of the act:
In some cases, the consent is completely ineffective. For example, a doctor who, with sexual motivation, performs an unjustified gynecological examination on a patient can be convicted of indecent conduct even if the patient has "consented" to the examination.
In other cases, the deficient consent results in the act being subject to a different provision than if the consent had not existed. For example, deceit or coercion for sexual relations can be punished as rape or as abuse of position.
Extent of Consent
It is self-evident that consent does not have an exempting effect beyond its actual scope. For example:
A person who has been allowed to pour a shot from a bottle of liquor cannot empty the entire bottle without committing theft.
A person admitted to a hospital for treatment has not consented to procedures that only have scientific interest.
Someone participating in boxing, ice hockey, or another sport where participants come into physical contact with each other has consented to the violence that occurs within the rules of the game, but not to deliberate rule violations.
The Timing of Consent
Revocation
Generally, consent must exist at the time of the act. Revoked consent is usually of no consequence.
However, to some extent, one can contractually commit to tolerate intrusions on one's rights. The condition for consent to be irrevocable is that it is binding according to ordinary civil law rules. Consent to purposeless destruction is contrary to good morals and can therefore always be revoked.
Personal rights such as freedom, honor, and bodily integrity are characterized as inalienable, but when it serves a reasonable purpose, consent can also be irrevocable for a shorter or longer period.
Subsequent Approval and Hypothetical Consent
A subsequent approval of the act has no significance for criminal liability but may be a binding waiver of the right to prosecute under certain circumstances.
Unlike a belief that consent exists, is a belief that the other party would have given consent if asked (hypothetical consent). Such hypothetical consent should not have an exempting effect from punishment. Consent is a voluntary waiver of legal protection, and as long as such a waiver is not given, the outside world must adjust to that fact.
Error
If the perpetrator acted believing there was consent, he cannot be punished for intentional crime if the consent would have excluded criminal liability in such a case. If his belief is negligent, he can be punished for negligence if the act is punishable in its negligent form.
If he has instead believed that consent has more significance than the law gives it - for example, he believes that consent makes euthanasia free from punishment - this is a legal error that generally will not exclude criminal liability.
Conclusion
Consent from the victim can in many cases exclude criminal liability, but the scope of consent varies significantly between different types of criminal provisions. When interpreting criminal provisions, consideration must be given to what interests they are meant to protect and to what extent these interests deserve protection even against the will of the victim.
For consent to have the effect of exempting from punishment, it must be given by a person with sufficient maturity and insight, it must be voluntary and informed, and it must exist at the time of the act. Consent extends no further than what is actually consented to, and with personal rights, consent can usually be revoked.
These principles represent a balance between respecting individual self-determination and society's interest in protecting certain values even against the will of the victim.
