Proving Consent as a Criminal Defense
Consent can be a difficult criminal defense to establish. Below we review what “consent” actually means, how it can be proven, and how it can be used as a criminal defense.
Using “consent” as a criminal defense does not dispute that the crime actually took place, but instead states that the act was allowed by the victim. This can be a difficult defense to establish without getting a testimony from a defendant. When an act has been charged as a criminal offense because it has caused or threatened bodily harm, the consent defense can be used if one of these following conditions applies:
- The bodily harm that’s being questioned is not serious.
- In cases of an athletic contest where the action and the harm done was a reasonably foreseeable consequence of participation.
- The act was committed because of consent.
Consent cannot be used as a criminal defense if one of these conditions apply:
- The consent was given by a person legally unable to authorize the action.
- The consent was given by a person unable to make reasonable judgment about the harmfulness of the conduct due to youth, mental disease, defect, or intoxication.
- The victim is not legally able to give consent.
- The consent was induced by force, duress, or illegal deception.
Most jurisdictions recognize the criminal defense of “consent.” A defense attorney, when using consent as a defense, will need to establish that the victim consented to the questionable conduct. If bodily harm resulted, an attorney will need to show that the victim consented to the act that caused that bodily harm, and was a joint participant. An attorney will also need to prove that the activity where both parties were joint participants was lawful and that the harm done was a reasonably foreseeable result of participation. This can often be difficult, so working with a smiled criminal defense attorney can help ensure you get the best representation possible.
Source: Laywers.com, Criminal Law Defenses: Consent, 2014
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