Consent is Not a Defense to Battery: A Reply to Professor Bergelson
27 Pages Posted: 9 Jul 2010
Date Written: July 8, 2010
In this essay I argue that, contrary to what most criminal law scholars believe, consent does not operate as a justification that relieves the actor of liability for conduct that admittedly satisfies the offense elements of battery. Rather, I contend that consent is only relevant to battery liability when, in conjunction with other factors, it modifies the definition of the crime in a way that reveals that the defendant’s act does not actually fall within the range of conduct prohibited by the offense. The argument proceeds in three parts.
In Part I, I argue that there are three ways of conceiving the interest sought to be protected by the offense of battery. These approaches provide different accounts of the exculpatory nature of consent in battery cases, none of which is compatible with the claim that consent operates as a justification defense.
In Part II, I argue that, contrary to what several criminal theorists have argued, the offense of battery does not seek to protect personal autonomy. Therefore, I claim that the exculpatory role of consent in cases of battery cannot be explained by claiming that recognizing consent as a defense vindicates the victim’s autonomy. Instead, I suggest that consent is relevant only insofar as it reveals that the infliction of bodily harm was socially acceptable.
In Part III, I argue that consent to battery currently operates as a factor that modifies the definition of the offense in a way that demonstrates that the defendant did not engage in the type of conduct that the legislature desired to prohibit as battery. Furthermore, I claim that the offense of battery seeks to prevent the infliction of non-trivial physical harm in circumstances where the infliction of such harm is not considered a normal occurrence given current societal practices. Consequently, I suggest that consent is relevant in cases of battery only when, in conjunction with other factors, it reveals that the perpetrator’s infliction of bodily harm was a normal occurrence rather than an extraordinary or regrettable event.
Keywords: consent, criminal law, substantive criminal law, battery, consensual boxing, consent to sporting activities, offense, justification, elements of the offense, offense modification defense, defenses, criminal law defenses, assault, socially adequate conduct as a defense
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