Consensual crime - AbsoluteAstronomy.com

A consensual crime is a public order crime

Public order crime

In criminology, public-order crime is defined by Siegel as "...crime which involves acts that interfere with the operations of society and the ability of people to function efficiently", i.e. it is behaviour that has been labelled criminal because it is contrary to shared norms, social values, and...

that involves more than one participant, all of whom give their consent as willing participants in an activity that is unlawful.
Legislative bodies and interest groups sometimes rationalize the criminalization of consensual activity because they feel it offends cultural norm

Norm (sociology)

Social norms are the accepted behaviors within a society or group. This sociological and social psychological term has been defined as "the rules that a group uses for appropriate and inappropriate values, beliefs, attitudes and behaviors. These rules may be explicit or implicit...

s, or because one of the parties to the activity is considered a "victim" despite their informed consent

Informed consent

Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards. As a literal matter, in the absence of fraud, it is redundant. An informed consent can be said to have been given based upon a clear appreciation and understanding of the...

. see Chapter 5 of Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law's Authority (Ashgate, 2011 )

Consensual crimes are sometimes described as crimes in which the victim is the state

State (polity)

A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...

, the judicial system, or society

Society

A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...

at large and so affect the general (sometimes ideological

Ideology

An ideology is a set of ideas that constitutes one's goals, expectations, and actions. An ideology can be thought of as a comprehensive vision, as a way of looking at things , as in common sense and several philosophical tendencies , or a set of ideas proposed by the dominant class of a society to...

or cultural) interests of the system, such as common sexual morality. Victimless crime while similar, typically involves acts that do not involve multiple persons. Drug use is typically considered a victimless crime where as the sale of drugs between two or more persons would be a consensual crime. The fact that no persons come forward to claim injury has essentially made the two terms interchangeable in common use.

Giving consent

When discussing consensual crime, one issue is whether all the participants are capable of giving genuine consent. This may not be the case if one or more of the participants are:

Animals
Child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...

ren (normally measured as being under the legal age of consent
Age of consent
While the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...

)
Severely disabled
Severely mentally ill
Not fully informed about the issues involved
Suffering from mood swing
Mood swing
-Associated disorders:Mood swings are commonly associated with mood disorders including bipolar disorder and depression. In patients with cases of bipolar disorder, the patient experiences serious mood swings that last for days or even weeks...

s
Acting under duress
Duress
In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner...
Addicted
Substance use disorder
Substance use disorders include substance abuse and substance dependence. In DSM-IV, the conditions are formally diagnosed as one or the other, but it has been proposed that DSM-5 combine the two into a single condition called "Substance-use disorder"....
Intoxicated
Unconscious
Unconsciousness
Unconsciousness is the condition of being not conscious—in a mental state that involves complete or near-complete lack of responsiveness to people and other environmental stimuli. Being in a comatose state or coma is a type of unconsciousness. Fainting due to a drop in blood pressure and a...

Examples

The generally accepted definition of a consensual crime is a criminal act committed by two or more people, who consent to involvement, and does not involve any nonconsenting individuals. The following is a list of criminal acts in various societies at various times and in different societies, where the issue of liability hinges on consent or the lack of it:

Unlicensed prize fights and other criminal activities of a sporting nature where the players consent and the audience actively approves of what they see (in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

, see R v Coney
R v. Coney
R v. Coney 8 QBD 534 is an English case in which the Court for Crown Cases Reserved found that a bare-knuckle fight was an assault occasioning actual bodily harm, despite the consent of the participants...

).
Murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...

or incitement
Incitement
In English criminal law, incitement was an anticipatory common law offence and was the act of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime....

to murder where one person actively solicits others to terminate their life, or the life of another. For example, a driver may be trapped in a burning tanker full of gasoline and beg a passing armed police officer to shoot him rather than let him burn to death. These situations are distinguishable from soliciting the cessation of life-sustaining treatment so that the injured person may die a natural death, or leaving instructions not to resuscitate in the event of death. Note that, in English law under the Suicide Act 1961
Suicide Act 1961
The Suicide Act 1961 is an Act of the Parliament of the United Kingdom. It decriminalised the act of suicide so that those who failed in the attempt would no longer be prosecuted....

, suicide
Suicide
Suicide is the act of intentionally causing one's own death. Suicide is often committed out of despair or attributed to some underlying mental disorder, such as depression, bipolar disorder, schizophrenia, alcoholism, or drug abuse...

is not a crime committed by a person who fails to die. Thus, those who assist in a failed suicide would be participants in a victimless crime because the would-be suicide cannot be tried. If the suicide succeeds, the legal issue is whether the assistants actively facilitated the death, or as doctors, nurses or carers, omitted to prevent natural death in circumstances where society believes they have no legal duty to take that preventive action. Some countries have characterised some of the possible situations as assisted suicide
Assisted suicide
Assisted suicide is the common term for actions by which an individual helps another person voluntarily bring about his or her own death. "Assistance" may mean providing one with the means to end one's own life, but may extend to other actions. It differs to euthanasia where another person ends...

, while others make no judgment by imposing a separate label on conduct within the field of homicide. The issues may more generally relate to euthanasia
Euthanasia
Euthanasia refers to the practice of intentionally ending a life in order to relieve pain and suffering....

where society debates whether, and in what circumstances, to terminate the lives of its citizens. Whichever philosophical route is followed, the laws will either criminalize any situation in which death results or permit death to be caused under controlled circumstances.
Sexual and non-sexual assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...

s involving the use or threatened use of violence which causes injuries and which would be criminal in all other situations (e.g. sadism and masochism
Sadism and masochism
Sadomasochism broadly refers to the receiving of pleasure—often sexual—from acts involving the infliction or reception of pain or humiliation. The name originates from two authors on the subject, Marquis de Sade and Leopold von Sacher-Masoch...

). In more extreme cases of edgeplay
Edgeplay
In BDSM, edgeplay is a subjective term for types of sexual play that are considered to be pushing on the edge of the traditional S.S.C. creed. They would be considered more R.A.C.K...

where a rape fantasy
Rape fantasy
A rape fantasy or a ravishment is a sexual fantasy involving imagining or pretending being coerced or coercing another into sexual activity. In sexual role-play it involves acting out roles of coercive sex...

may be enacted by prior agreement, the offence of rape will not be committed because the "victim" has actually consented to sexual intercourse. The issue of consent in fact, or belief in the existence of consent, is fundamental to determining whether a rape has, or has not, been committed. In English law, for example, s74 Sexual Offences Act 2003 provides that consent is present "if he agrees by choice, and has the freedom and capacity to make that choice". If the "victim" is unconscious when penetration occurs, he would not be consenting, but this might not be rape if there is a subsisting sexual relationship, e.g. the couple are married, and the other might reasonably believe that consent to intercourse existed by virtue of that relationship. Note that, if the "victim" is physically injured, the causing of those injuries can still be charged as an assault whether there is actual consent or not. As a defence, offenders may plead that the other consented to the acts, and argue that any injuries sustained were accidental rather than intentional, leaving it to the jury to make a decision on their truthfulness.
See more fully, the discussion in Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law's Authority (Ashgate, 2011 ) where Professor Baker argues (in chapter 5) that there is a limit to consensual harm doing--but that the threshold of harm has to be reasonably high. Baker also asserts that it is only the harm-doer who should be criminalized; not the harm- receiver. He also points out there is a difference between risking harm to others (as those who engage in casual sex do when they know that there is a chance they might have HIV, and deliberately exposing another to the risk of HIV, for example, where a person has been told he or she is a carrier and fails to inform his or her sexual partner.
Pornography
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...

, which can be illegal to produce, distribute or possess in some countries, even if the participants consented to the acts, and the acts themselves are legal (see List of pornography laws by country).
Censorship
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...

laws, such as Obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...

laws, may criminalise distribution of material even if it is only viewed by those who consent to viewing it.
Statutory rape
Statutory rape
The phrase statutory rape is a term used in some legal jurisdictions to describe sexual activities where one participant is below the age required to legally consent to the behavior...

where the "underage" participant(s) give actual consent, but the law-makers of the relevant jurisdiction have determined that people of that age are not legally capable of giving informed consent (not informed adequately about the activity).
The criminal transmission of HIV
Criminal transmission of HIV
In many countries, the intentional or reckless infection of a person with the human immunodeficiency virus is considered to be a crime. This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the...

by consensual sexual activity infects one partner with a terminal disease which is, if not a homicide in the long term, certainly a serious injury constituting an assault in the short term. This is a complex issue because if two people, knowing the risk of transmission, voluntarily agree not to use a condom, they are consenting to an activity that risks the transmission of any sexually transmitted disease
Sexually transmitted disease
Sexually transmitted disease , also known as a sexually transmitted infection or venereal disease , is an illness that has a significant probability of transmission between humans by means of human sexual behavior, including vaginal intercourse, oral sex, and anal sex...

. But if one partner is aware of being HIV positive, the other partner should expect a warning or if not, at least a truthful answer to the question, so they can give informed consent
Informed consent
Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards. As a literal matter, in the absence of fraud, it is redundant. An informed consent can be said to have been given based upon a clear appreciation and understanding of the...

. Law-makers have a policy decision to make as to whether that informed consent can excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...

criminal liability.
Adultery
Adultery
Adultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...

and, in general, sex outside marriage
Fornication
Fornication typically refers to consensual sexual intercourse between two people not married to each other. For many people, the term carries a moral or religious association, but the significance of sexual acts to which the term is applied varies between religions, societies and cultures. The...

or other established relationships where all persons immediately involved give consent.

The issue in each of these situations is the same. Society has created a formal framework of laws to prohibit types of conduct thought to be against the public interest. Laws proscribing homicide, assaults and rape are common to most cultures. Thus, when the supposed victim freely consents to be the victim in one of these crimes, the question is whether the state should make an exception from the law for this one situation. Take euthanasia

Euthanasia

Euthanasia refers to the practice of intentionally ending a life in order to relieve pain and suffering....

as an example. If one person intentionally takes the life of another, this is usually murder. If the motive for this is to collect the inheritance, society has no difficulty in ignoring the motive and convicting the killer. But if the motive is to relieve the suffering of the victim by providing a clean death that would otherwise be denied, can society so quickly reject the motive? It is a case of balancing the harms. On the one hand, society could impose pain and suffering on the victim by forcing him or her to endure a long decline into death. Or society could permit a system for terminating life under controlled circumstances so that the victim's wishes could be respected without exposing others to the criminal system for assisting in realising those wishes.

The other situations move down the hierarchy of non-fatal and sexual assaults with society deciding whether, and in what circumstances, to offer an excuse or exculpation

Excuse

In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...

to those who freely participate.

Giving consent

Examples

See also