ABSTRACT
Clearly there is room, within contemporary society, for people to consent to the infl iction of injury. Body alteration, in one form or another, is a topical example. It is a paradigm example of enjoying the fruits of living in a free society. What does having autonomy mean if not that we are entitled to spend our hard-earned cash having a nose-job, our ears or navel pierced, or ‘I love mum’ tattooed on our forearm? But there is also room for criminalising consensual harm-causing activities, for example euthanasia, duelling, or prize-fi ghts, which may harm public as well as private interests. Somehow a balance must be struck between individual autonomy and wider public interests. As yet the principles that would inform this balance have not been adequately weighed in the courts and this paper seeks to elucidate how this balance should be struck. 1
Criminal doctrine draws a conceptually rather fragile distinction between contacts where the essential nature of the activity is innocuous, for example, intercourse, cuddling, or kissing, and those where it is harmful, either in its nature or in its potential as in fighting, sports, tattooing or rough horseplay. For the former, absence of consent is constitutive of the offence. For the latter, consent operates extra-definitionally by way of a defence. Although the fact of this separation might seem incoherent, 2 there is a point to it. This can be best appreciated by analysing the moral logic of the structure of non-fatal offences and what this means for the system of defences. 3 This structure divides non-fatal offences into crimes against autonomy and crimes of violence, a division which is a direct juridical representation of a corresponding distinction made at the social level. In rape or common assault this logic is uncontroversial. It is wrong to kiss, lay hands on, or have intercourse without the other’s consent. And it is wrong precisely and solely because the contact is unwelcome – it is an attack on the victim’s autonomy. This explains why rape, common assault, and false imprisonment are constituted as crimes and torts also, in the absence of proof of physical
it. The wrong in wounding or inflicting grievous bodily harm, by contrast, is the wrong of hurting people. This is compounded no doubt where the hurt is unwelcome but the wrong may be constituted notwithstanding. Good human beings do not stab each other, shoot each other, or beat each other. Hurting people is wrong and it does not automatically become permissible if it is consented to. 4
One of the core tasks for any community living under the rule of law is to communicate, with maximum moral clarity, basic norms of behaviour and their moral rationale. 5 The bifurcation does this. ‘Do not attack a person’s autonomy.’ ‘Do not hurt people.’ Defences are then superimposed onto this template to provide further guidance as to the circumstances justifying deviations from the basic moral prohibition. This enables the nature of the deviation to be filtered for social acceptability. We cannot generally tolerate a law whose offence elements require the court to decide on moral or political grounds whether a person’s action is lawful or not. This must be a technical determination, as it is in rape. But we still need a law that permits doctors to perform life-saving surgery with the patient’s consent or where the patient lacks capacity to give consent, while at the same time prohibiting the surgery if they do not consent or giving a consensual lethal injection to a terminally patient. 6 We need a law that permits tattooing and ear-piercing but prohibits gratuitous violence. The law’s technique for squaring this circle and allowing a moral / political evaluation ultimately to determine lawfulness is to render all cases of intentional harm-causing ‘prima facie wrongdoing’ subject to defeasance where the fact of the victim’s consent affects the community’s judgement as to its wrongfulness. A similar analysis can be marshalled to account for the extra-definitional nature of self-defence. We do not say that no human value is challenged when citizens use violence to counter violence – something ‘untoward’ still happens when a person injures or kills another in self-defence. 7 We say rather that while the value is challenged the context permits the resort to force as a necessary evil in a society that values individual autonomy.
