ABSTRACT
The English Parliament established a Commission in 1965 to propose revisions to English law, including criminal law. The Commission initially decided in 1992 that rather than taking on the task of proposing legislation regarding the defense of consent in criminal law, it would leave issues of consent to the courts to resolve on a case-by-case basis. Eventually, however, the Commission was persuaded that in order to fulfill its mission to codify the English penal code, it had to confront consent. Accordingly, two years later the Commission issued a 71-page consultation paper, Consent and Offences Against the Person, designed to reformulate and clarify offenses of non-consent.1 The paper was severely criticized by commentators in England for being ‘metaphorically as well as literally lightweight’, ‘short on critical edge’, and ‘virtually devoid of theoretical depth’.2 In response the Commission withdrew the paper and, in 1995, after commissioning a philosopher to write a background paper on criminalization, issued a new 290-page consultation paper in 1995 entitled Consent in the Criminal Law,3 which was well received. In addition to being commended for resting upon ‘sound theoretical foundations’, it was specifically praised for being informed by an awareness of the ‘conceptual complexity’ of consent in the criminal law.4
