The Power to Consent and the Criminal Law

28 Pages Posted: 25 Feb 2021

See all articles by Mark Dsouza

Mark Dsouza

University College London - Faculty of Laws

Date Written: December 23, 2020

Abstract

I examine what it is to have the ability to validly consent, and conclude that it is a Hohfeldian power. On that basis, I argue that the necessary conditions for the grant of consent must include all the necessary conditions for the exercise of a power. Using this idea, I attempt to isolate context-independent minimum conditions necessary for the grant of consent. I argue that the grant of consent requires an exercise of volition - the making of a choice - and that there exists no general requirement either that this choice be to invite a boundary crossing rather than merely to permit it, or that the choice invariably be accompanied by a performative token. Furthermore, I argue that the power to consent cannot be exercised so as to have retrospective effect. At most, the expectation of ratification may give rise to an entitlement to a supervening defence.

Keywords: consent, autonomy, subjective, elements of offence, ratification

JEL Classification: K14

Suggested Citation

Dsouza, Mark, The Power to Consent and the Criminal Law (December 23, 2020). Faculty of Laws University College London Law Research Paper No. 4/2021, Available at SSRN: https://ssrn.com/abstract=3787374 or http://dx.doi.org/10.2139/ssrn.3787374

Mark Dsouza (Contact Author)

University College London - Faculty of Laws ( email )

Bentham House
4-8 Endsleigh Gardens
London, WC1H OEG
United Kingdom

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