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• Title: Rethinking Consensual Harm-Doing (United Kingdom)
• Author : University of Western Sydney Law Review
• Release Date : January 01, 2008
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 284 KB

Description

I. Introduction My aim in this paper is to examine the moral limitations of consent as a defence to criminal wrongdoing. Conventional morality (otherwise labelled as legal moralism, positive morality, etc) alone is not sufficient for the purposes of rejecting consent as a defence, because consent provides an objective (critical moral) reason for excusing wrongful harm-doing to others. However, the consent defence can be overridden by other critical moral considerations of greater importance. In this paper, I argue that consent does not excuse inflicting irreparable harm of an extraordinarily grave kind on others. Nor does it excuse serious reparable harm-doing to others. I ask whether R v Brown (1) (where the majority rejected consent as a defence to assault involving serious harm) and R v Konzani (2) (where the majority asserted that fully informed consent would have provided the HIV transmitter with a defence) are reconcilable with critical morality. Fair and principled criminalisation can only be determined by referring to critical moral standards. (3) I have argued elsewhere, (4) that criminalisation is fair and just when it is deserved and when deservedness is determined according to objective (5) moral standards such as harm-doing and culpability. It would be unjust and unfair to criminalise people merely because a majority of the community do not approve of their lifestyles. (6) In his magnum opus on criminalisation, Feinberg persuasively argues that under a liberal scheme for criminalisation 'the Harm and Offence Principles, duly clarified and qualified, between them exhaust the class of good reasons (critical moral justifications) for criminal prohibitions'. (7)

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