By GR Sullivan and AP Simester

Introduction

Our Festschrift essay, published in the Victoria University of Wellington Law Review to honour Professor ATH Smith, addresses the current law and practice in England and Wales and in New Zealand relating to findings of consent or non-consent by P to interactions between D and P. Publication constraints required confining attention to interactions between competent adults. Neither could we discuss which activities are permissible on a menu of choices that any competent adult might make. Contested and divisive issues relating to radical choices such as the consensual infliction of serious bodily harm or ministering death to the terminally ill are not considered. Rather, our concern is with interactions between D and P, in circumstances where what D does is uncontestably lawful if done with P’s consent, yet otherwise unlawful. The cases and statutory rules discussed relate predominantly to criminal law but there is also discussion of the civil law of consent, especially in the context of crimes relating to financial and propriety wrongs.

Typically, in the cases that come to the courts, the presence or absence of consent is determined by reference to P’s state of mind at the time of her interaction with D. But this is just happenstance: a function of the typical facts of cases rather than any doctrinal requirement. Take P, who contends that he was exposed to unlawful risks when shot and wounded while on compulsory service in (say, 2003) Iraq. It would not be a sensible question to ask whether P consented to being shot at the time when he was wounded. A much better question would be to ask what he was signing up to when he signed up in 1999. A similar analysis would apply to the harms incurred by first responders such as fire crew, police, paramedics, and participants in contact sports.

Plain Cases

Suppose P is very pleased that D greatly admires her recently completed painting, so pleased that she hands it to him telling him that her painting it is his to keep. This was a spontaneous gesture she now regrets. But the picture will remain on D’s wall: it is his picture. If additional comment is insisted upon, we might say such things as “She gave it to him; she assented to his taking it,” or “She knew what she was doing and nobody made her do it.”  Although the law will protect D’s new-found ownership (and that protection is important, since it allows D to keep, sell or give the painting to someone else), essentially D’s right to the picture rests on the natural properties of P’s conduct rather than on any legal construct. Gift-making and its finality was integral to pre-literate cultures and is a concept readily grasped even by young children.

There are countless such plain cases of legally effective consent. Unlike the painting case, however, sometimes an explanation might be required to demonstrate why a particular case is a plain one. Take D, an elderly man shopping in a busy store. While there is nothing overtly abnormal about D’s behaviour, D is in fact afflicted with dementia. Although he is aware of the nature of the items he is selecting, he is selecting the same items he chose yesterday and, even at that time, the items were surplus to his needs. Yet, even if the cashier knows the true facts, the transaction would be consensual.

The main factor that made the painting case appear a plain case was that P knew exactly what she was doing: a crucial feature in sexual offences and other offences against the person. But for cases of theft or fraud, arising in commercial or banking contexts, the maxim caveat emptor applies in the criminal law as well as the civil law. In such contexts, absent any obvious and profound disability, P need not be concerned with the psychological state of D. In the absence of fraud or other forms of manipulation, the transaction was legitimate. Indeed, even had there been fraud or manipulation, the contract would be voidable rather than void, allowing for the enforcement of subsequent third party rights to the items. These austere rules are likely confined to retail and banking contexts. By contrast, in the painting case, if P suffered from dementia to the knowledge of D, the case would no longer be plain.

Sexual Offences: Consent and pressure

The law relating to the validity of consent in the context of sexual offences is in transition both in England and Wales and in New Zealand. The process of change is palpable but not smooth. The transition started from a place where only certain events were taken to vitiate the consent of a competent adult, namely force, the threat of force, impersonation of a spouse, and deception to the effect that no sexual act was occurring. That era, which persisted for far too long, has gone. The question now is, simply, was there consent by P at the material time. In both jurisdictions some matters destructive of consent are ruled in but nothing is ruled out – and so the nature and definition of consent is at large.

One link between the old and new approaches is that, both then and now, the threat of force as well as the application of force vitiates consent. When P submits to a threat, however powerful, there is a degree of agency involved, a choice to be made. There is, in other words, a form of physical assent. But does such an assent amount, legally, to consent? Previously there was a reluctance to accept that a threat of something other than force (e g “do X or lose your job”) was sufficiently potent to vitiate consent. That view is now rightly seen as outdated. Non-consent is not simply a matter of force.

For legal purposes, a finding of consent or non-consent is a normative conclusion, something that involves an evaluation that judges conduct rather than a finding about P’s physical actions in making a choice. Cases of overwhelming force or an insensible victim do not raise a consent issue: there is clearly no consent, not even an assent. All cases of assent, by contrast, raise a consent issue. Whether a particular token of assent is also a token of consent, versus a mere assent or submission, requires a moral judgment. (In England and Wales, and in New Zealand, this is a very suitable task for the jury.) In cases of pressure, the question broadly stated is whether in the context of the relationship of the parties (perhaps home-sharing partners, workplace colleagues, etc) D resorted to an unacceptable abuse of power or influence, including but not confined to physical threats, to obtain sexual access to P. In the case of such abuses there is no consent.

Conclusion

The main lesson of the essay is, thus, that consent in these contexts is not a pre-legal phenomenon. Rather, it is itself a legal construct, one that has evolved over time. Moreover, it is context-dependent: we can contrast evaluations of consent in sexual interactions with such evaluations in other interactions, especially including commercial misconduct. In the former cases, the central concern is justice between the parties. By contrast, in delineating the boundaries of what amounts to lawful commerce, it is permissible to consider what a ruling about consent may entail for the commercial system as a whole: something that can lead to a much thinner conception of what makes for valid consent.

Keywords:  Criminal Law, Crime, Consent

AUTHOR INFORMATION

GR Sullivan is Emeritus Professor of Law at the University College London.

Email: g.sullivan@ucl.ac.uk

Andrew Simester is Amaladass Professor of Criminal Justice and Dean of NUS Law at the National University of Singapore.

Email: lawaps@nus.edu.sg