Contents I. Introduction II. Consenting to Grave Harm III. The Moral Limitations of Consent in R v Konzani IV. The Moral Limitations of Consent in R v Brown V. The Wider Normative Implications of Limiting Consent VI. Conclusion 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)
In Feinberg's two later volumes he makes it explicitly clear that 'legal moralism' and 'legal paternalism' are insufficient grounds for criminalising conduct. (8) I do not intend to engage with that debate here. But it is worth noting that Brown was not decided entirely on paternalistic grounds, because the criminalised conduct was harmful to others. I fully agree with Feinberg's views on paternalism. Paternalism does not provide a critical moral justification for criminalisation. If a person chooses to shorten her life by smoking, to risk her life by skydiving or by having unprotected sex with lots of strangers, etc, she risks harming herself in a grave way. Nevertheless, criminalisation is not appropriate in such cases as it can only harm the harmed party further. Criminalisation results in censure and hard treatment and is only deserved when a person violates the rights of others. If a person subjects herself to hard treatment (harm) the State should offer guidance, but it should not inflict further hard treatment on that person by subjecting her to undeserved (9) penal sanction.
Ashworth argues that Brown supports the principle of paternalism, because criminalisation in such circumstances invades 'the realm of personal autonomy where each competent, responsible adult should reign supreme'. (10) According to the idea of personal autonomy a person should be free do as she pleases so long as her actions do not wrongfully harm others. Likewise, Feinberg argues that even though the consenters are harmed in such cases, they are not wronged because they are personally autonomous and can choose to be treated in such a way. Feinberg argues that the harm is not nullified, but that it is not wrongful harm as consent nullifies the wrongdoing involved. (11) Per contra, I argue that respecting personal autonomy is fundamentally different from respecting human beings as ends (12) in themselves (rational autonomy: dignity). One cannot alienate her right to be treated with a minimum degree of respect as a human being merely by being irrational. (13) Personal autonomy does mean that consent is a defence to trivial and ephemeral harms such as tattooing, ear piecing and so forth. However, once the harm crosses a certain threshold, it degrades the consenter's dignity to an unacceptable degree and is properly criminalisable. The controversy comes when one tries to draw a line in those cases involving borderline harm. Night is different from day, but there is no clear line for determining when night starts and day ends. Likewise, there is no clear line for deciding when harm to a human being treats her with an unacceptable lack of respect and consideration as a human being. I make some suggestions below, but obviously it is not possible for me to provide mathematical like formula for solving these types of hard cases.
Meanwhile, Simester and Sullivan (14) suggest that consent in Brown was limited for legal moralistic reasons. They note that
[i]n Brown the House of Lords held that, in the context of sadomasochistic sexual activity, the infliction of actual bodily harm upon a consenting adult 'victim' was an offence. From the perspective of the Harm Principle, there is no wrong to V since the activity occurs with V's consent. But from the perspective of legal moralism (the subjective whims of the majority), D's conduct may be regarded as inherently wrong--and therefore legitimately criminalisable. Indeed, V's consent simply makes V, too, a participant in the offence. (15) I argue below that the majority in Brown did not have to rely on legal moralism to justify their decision, because the degree of harm-doing provided the lawmaker with a critical moral reason for invoking the criminal law, not to punish the consenters but to prevent the harm-doers from relying on consent to degrade the dignity of the consenters.
Consenting to Grave Harm
Feinberg's harm principle allows a person to consent to all kinds of gross harms. For instance, a person might consent to slavery, death, gross violence and so forth. Feinberg postulates that wrongdoing is nullified by consent in the case of euthanasia and gladiatorial battles, but holds that these activities are criminalisable because of the difficulty in determining the genuineness of the consent that may have been given. Feinberg argues that: 'to the extent that B's consent is not fully voluntary, the law is justified in intervening "for his sake"'. (16) In those cases where it is not difficult to ascertain the authenticity of the consent (sadomasochism, HIV transmission), Feinberg allows consent to override the prima facie case for criminalisation. Is it morally right to let people consent to irreparable injury of an extraordinarily grave kind such as blinding? I argue that consent does not nullify the wrongdoing involved in practices that involve purposeless or irreparable harmdoing of an extraordinarily grave kind.
Those who consent to being infected with HIV or to blinding and so forth are irreparably harmed, but are they wrongfully harmed? How much harm can we inflict whilst relying on consent as a defence? I argue that in certain paradigm cases involving an alienation of a person's humanity, Kant's (17) second formulation of the Categorical
Imperative can be invoked to limit the scope of consent. Duff (18) has argued that Kant's idea of respect for humanity could be invoked to limit consent in such cases. However, Duff does not develop his argument. Nor does he consider the distinction between disrespect for humanity as an end in itself, and the deeper concept of humanity (a person's whole freedom, powers of choice) being inalienable. It is one thing to tolerate trivial or a limited degree of disrespect for your personhood (that is, consenting to being used as a mere means) and something entirely different to alienate your entire humanity. A person can alienate her humanity fully or partially. First, she might alienate human dignity partially by permitting others to use her as a mere means, blinding her with acid, unnecessarily amputating her legs and so forth. Secondly, she could alienate her human dignity fully by alienating her right to life. Consent will not nullify the wrongfulness of a person alienating her right to life or liberty, as a person cannot do so without also forfeiting her humanity.
The critical moral force of this argument comes from both the idea that a person cannot alienate her humanity and the normative weight that is attached to the irreversible (or severe) harmful consequences of harming others in such circumstances. The consequences are simple, the consenter may change her mind a month later, but it is too late to reverse the harm as it is irreparable. In those cases where grave reversible harm is inflicted without some overriding moral justification, it is the violation of the consenter's inalienable right to be treated with a minimum degree of respect and consideration as a human being that provides the critical justification for denying consent as a defence. It is this neo-Kantian approach alone that explains why the wrongdoers in Konzani and Brown cannot rely on consent as a defence. In Konzani the consenting victim, in deontological terms, alienates her inalienable right to personhood. In consequential terms, she consents to irreparable harm. Because of the gravity and irreparable nature of the harm, it is not permissible for another person to take advantage of consent in such circumstances.
Brown is more controversial as the victims do not entirely alienate their rights to life (rational autonomy: dignity). Thus, a wider normative analysis is required in this type of borderline case. The critical moral argument for limiting consent in the Brown situation is somewhat weaker. Nevertheless, a weak case can be made by focusing on the gravity of the normative harm involved. A case might be made for limiting consent as a defence in the Brown situation based on the degree of the disrespect for humanity involved, the purposelessness (that is, the lack of...