7.5: Consent

Although consent is a defense to certain crimes, it is generally not a codified justification like self-defense or necessity. Instead, consent – or the lack thereof – is normally subsumed into the essential elements of a crime. For this reason, consent is akin to the failure of proof defense discussed at the beginning of the chapter. For example, a person is not guilty of theft if the person has the consent of the property owner to take the item. A person may not be convicted of vandalism if the owner consented to the property damage. Consent most commonly arises in sexual assault cases, in which the defense contends the sexual act was consensual. Consensual sex is generally not a crime. In all sexual assault prosecutions, lack of consent is a criminal element that the government must prove beyond a reasonable doubt. AS 11.41.410 et. seq. In some sex offenses, a person cannot consent as a matter of law. Sexual abuse of a minor (statutory rape) is an example where the victim cannot consent due to his or her age. We explore sexual assaults and lack of consent in subsequent chapters. In this section, we explore consent to nonsexual conduct.

There are some offenses – generally crimes against public welfare – in which consent will not operate as a defense. Thus, even if the prohibited act is consensual, it remains a crime. For example, prostitution criminalizes consensual sex between two adults. AS 11.66.100. Notably, consent is not a defense to “fighting.” Fighting – a mutual understanding to “trade blows” – is criminalized as Disorderly Conduct. AS 11.61.110(a)(5); Dawson v. State, 264 P.3d 851 (Alaska App. 2011). Recall that a person may not claim self-defense if engaging in mutual combat (e.g., fighting). AS 11.81.330(a)(1).

Outside of sexual assaults, consent is a rare defense. Generally, consent can operate only as a defense against some thefts, injury that occurs during a sporting event, and crimes that do not result in serious bodily injury. See Wayne R. LaFave, Substantive Criminal Law §6.5(a) (3rd ed. 2018). Thus, a hockey player is not guilty of assault when she forcibly checks an opposing player during a hockey game. On the other hand, a person may not consent to be murdered. AS 11.41.120(2).

Regardless of the circumstance, consent must always be voluntarily and knowingly given. Consent is not voluntary if it is induced by force, the threat of force, or trickery. Consent is not considered knowing if it is given by an individual who is too young, mentally incompetent, or intoxicated.

Example of Unknowing Consent

Jim and John are roommates and obsessive bodybuilders. During a party, Jim drinks several shots of vodka and challenges John to a test of core strength. Jim tells John that he can sustain more punches to his stomach than John. Jim tells John to hit him in the stomach as hard as he can, not out of anger or malice, but humor. Jim promises not to wince. John cannot likely claim consent as a defense to the assault in the case. Although Jim consented to the assault, he did so while intoxicated and clearly was unable to make a reasoned decision. Jim’s consent was not given knowingly and was likely invalid.

Example of Involuntary Consent

Let’s change the example with Jim and John. Let’s assume that neither Jim nor John have consumed any alcohol. Instead, John tells Jim that he will stab him with a kitchen knife unless Jim lets John punch him in the stomach. In this scenario, John is likely guilty of assault. Jim’s consent to the assault was in response to John’s threat of physical harm. Thus, Jim’s consent was not given voluntarily and thus invalid.

Example of Legal Consent

We’re not done with Jim and John. Let’s assume that Jim and John are performing at a local bodybuilding show and want to show the audience their core strength. Jim tells John, in front of a large audience, to punch him in the stomach as hard as he can. Jim brags to the audience that he will not wince. Under this scenario, it appears that Jim’s consent was knowing and voluntarily given. Unless Jim suffers serious physical injury from the punch, John can likely rely on Jim’s consent to defend again the charge of assault.