Consent in Criminal Law

In criminal law, "consent" denotes an active expression of "intention." Mens rea and actus rea are the two elements of the crime that must exist. Whereas actus relates to the wrongdoer's actual deed, mens rea refers to the purpose of performing the specific offence. A person will be held criminally responsible for all of his actions, whether they were carried out with knowledge or intent and even with awareness of the potential repercussions. A defence against illegal activity may also be based on the victim's consent. The most prevalent application of consent is as a defence against sexual felonies like rape, and most sexual offences require proof of lack of consent beyond a reasonable doubt.

This Story also Contains

1. What is Consent
2. Exceptions to Consent
3. Express and Implied Consent
4. Establishing Consent
5. Conditions to Plead Consent as Defence
6. Consent and Bodily Harm
7. Consent and Rape or Sexual Assault
8. Case Laws on Consent in Criminal Law
9. Conclusion

What is Consent

As it is commonly understood, consent is an intentional, free-willed action. It involves the deliberate use of reasoning based on a comprehension of the moral ramifications and importance of the action. It consists of three parts: the free application of one's physical and mental faculties. However, the term "consent" is not defined in the Indian Penal Code. However, Section 90 of the IPC discusses what constitutes non-consent. It uses a negative phrase to describe consent. According to this, consent is not given if it is provided by someone afraid of getting hurt, believes something is not true, is intoxicated, is not of sound mind or is a child under the age of 12 (unless the context makes it clear otherwise) and cannot understand the nature or consequences of the act they are consenting to.

You may also read

• Mens Reus and Actus Reus

• Free Consent

• Agreement With Minor

Exceptions to Consent

Despite without defining "consent," Section 90 of the IPC specifies what is and is not consent. It controls how Sections 87, 88, and 89 of the I.P.C. operate. There are four situations under which a person's given permission is invalid.

Consent Under Fear or Injury

Consent gained by coercion or threats of violence would not be protected under criminal law. For instance, Z used a knife to intimidate A into signing his property paper in favour of Z's son X. In this case, consent was granted out of concern for harm.

Consent Under Misconception of Fact

From the perspective of the law, permission that is gained under false pretences is worthless. For instance, a woman consented to a sexual encounter with a doctor, thinking that he was checking her out for a medical condition. The doctor would be judged guilty because he had tricked her into believing he was doing a medical examination.

Consent By Insane People

People who, due to mental illness or intoxication, are incapable of comprehending the nature and consequences of their acts. For instance, to obtain one more booze bottle, A, who was quite inebriated, signed his property paper in the liquor store owner's favour. His assent is worthless in the sight of the law.

Consent of a Child

Section 90's final paragraph states that permission provided by a kid younger than 12 years old is legally void. In this instance, the child's guardians or the person in charge of him will grant consent.

Express and Implied Consent

The Section recognizes permission that is both express and inferred. The precise wording or articulation of the permission is not important as long as it is present and freely provided.

In terms of criminal law, permission granted whether verbally or in writing is known as "express consent." For example, let's say you answered "yes" when your friend asked to use your flat for the day. Then, you have given him your express approval verbally.

"Implied consent" in criminal law relates to the acquisition of consent through actions and conducts or through (1) inferred consent. When an individual walks into a Big Bazaar and takes objects that are on display for sale, it can be assumed that there is an implied agreement to enter the business, handle the goods, and make a purchase. Here's an example of a behaviour that indicates permission.

Establishing Consent

A criminal defendant must not only demonstrate that consent was given but also demonstrate that the consent-giver had the legal authority to do so. In criminal court, a defence of consent cannot be established by simply asserting that a person gave their assent to a certain course of action or behaviour. Only certain people have been legally authorized to offer consent. Consent will not be applicable under the current legal framework if:

• Consent is given by someone who is not authorized to do so. A person cannot consent to the taking of his neighbor's property since he has no legal influence over what happens to it.

• The consent is provided by someone who is deemed incapable of permitting because they are too young, mentally ill, or too drunk to be able to make an informed decision about their actions.

• In certain situations, such as statutory rape, the victim is not permitted by law to provide their permission.

• The consent was coerced or otherwise gained; it was not given voluntarily.

In each of these cases, courts will probably find that consent is legally void, hence the defence won't work even if the criminal defendant claims that consent was given.

Conditions to Plead Consent as Defence

The Code's Sections 87, 88, 89, and 90 address the several requirements that must be met to raise consent as a defence. These are listed in the section below:

• The individual has accepted the risk.

• Unless the context indicates otherwise, the individual must be at least 12 years old and not insane; if they are, guardians or the person in charge of them on their behalf must grant their consent.

• Give consent without fear or misunderstanding the facts.

• This consent needs to be given, either explicitly or implicitly.

• It was not intended for the consent to result in death or serious injury.

Consent and Bodily Harm

Consent may be an admissible defence in some crimes, such as assault and battery, that cause bodily damage. Victims may be deemed to have given their agreement to these offences in very few situations. Sports involving physical contact are one prevalent example. In sports, players are considered to have given their permission to the physical contact and potential injury that is a necessary part of their activity.

Three things have to happen for consent to be established in these situations. First of all, a person cannot give their assent to situations where there is a risk of severe physical harm. Second, the harm must be a risk that would be deemed acceptable and a fairly foreseeable consequence of the behaviour. Third, the behaviour must benefit the person in some way for the consent to be legitimate.

Due to their extreme specificity, these rules are only applicable in certain situations, usually related to sports events. Boxers and rugby players, for example, may be held liable for battery resulting from their participation.

Consent and Rape or Sexual Assault

Consent-based defences also cover crimes in which getting consent is a necessary component of the offence. Therefore, the defence of consent may be applicable because both sexual assault and rape entail that the victim did not consent to the sexual conduct occurring. In a similar vein, permission may also invalidate other property crimes, such trespassing. This permission may be given explicitly or implicitly, though it is frequently much harder to prove implied consent.

Case Laws on Consent in Criminal Law

In the case of, Jayanti Rani v. State

In this case, The complainant's home was frequently visited by the accused, who worked as a teacher. Over time, they began to feel something for one another and committed to getting married quickly. Since they received this guarantee, they have started dating. The complainant got pregnant and was under pressure to get married quickly. The accused broke his word and ceased to come to the complainant's residence after she refused to have an abortion.

The accused was named in a rape case. The complainant gave her free agreement to a series of sexual encounters, and the prosecution was unable to prove beyond a reasonable doubt that the accused started having sex with the complainant with no intention of marrying her, thus the court found the accused not guilty because section 90 would not apply.

In the case of, Udaya v. State of Karnataka

In this case, In this instance, the prosecutrix permitted the appellant to engage in sexual activity. The accused Udaya allegedly confessed his love and pledged to wed the prosecutrix at a later time. She knowingly began living with the accused and gave birth. The prosecutor argued that the accused gave her consent because she believed that the accused Udaya would marry her. The accused was prosecuted and put on trial for rape.

Rejecting this argument, it was decided that Udaya, the accused, was not responsible for the rape because the prosecutor knew that she and the accused belonged to different castes and that their family would not accept a marriage proposal. Despite this knowledge, she consciously began living with the accused and became pregnant. In this instance, consent to engage in sexual activity cannot be considered provided under false pretences, i.e., a promise to marry, as she also expressed a desire for it. A fake vow to marry is not a fact, as per the Penal Code.

Conclusion

The significance of consent in criminal law is discussed in this article. The code defines consent as the free will of an individual to do something. Any contract that will be executed without authorization is null and void from the outset. This article also discusses the exceptions to consent which include consent given under fear or injury, consent under misconception of fact, Consent by insane people and consent of a child will not be valid. For a party to enter into a valid will or agreement consent is the most important.