ABSTRACT
Under Islamic law consent is not regarded as a defence unless an element of the crime is specifi cally negated by the consent of the victim. In these circumstances, providing certain conditions are satisfi ed, consent can be considered a complete defence. The victim must be capable of consenting to the action in law; therefore, for example, where sexual intercourse with a minor is concerned, consent provides no defence. Additionally, the victim must not be subject to duress or compulsion, but rather must consent freely and voluntarily. Consent must also not be obtained through fraudulent means. Under Islamic law any act that is carried out with an honest or mistaken belief that the individual is acting within the law is defensible. Consent will act as a complete defence in some cases, while in other circumstances it may only be accepted within certain limits, 1 or render the offender liable for a lesser crime. 2
Islamic law does not provide a specifi c defi nition of consent. However, when considering the various interpretations of consent based on the primary sources (Qur’an and Sunna) it could reasonably be defi ned as the voluntary assent of a mentally and legally capable individual to allow another person to act in a specifi c manner that infringes on their personal rights. The defence of consent becomes applicable where the injured party acquiesces to an act during or immediately before its commission; retrospective consent and/or subsequent forgiveness of the offender would not be regarded as a legal defence, rather a mitigating factor in certain crimes, which may result in a lesser sentence or the complete withdrawal of the prosecution. 3 Such consent may be clearly expressed or implied through various means.
