„Volenti non fit iniuria”[1]. This Roman Law principle suggests that those conducts which are in line with the injured person do not constitute legal responsibility. In common law legal systems this principle is also known as implied acceptation of danger; namely tort law liability is not set if a person willingly undergoes to a dangerous situation. The German legal philosophy elaborated the well-detailed dogmatic frames of the consent defense and distinguishes between compliance and consent.

 

There is no particular provision for the consent defense in Hungarian criminal law, however Art. 4. in the Hungarian Criminal Code contains the legal concept of crime, which implies that conducts, which are not dangerous to society do not constitute crime. In Hungarian criminal law at some offences the lack of consent is part of the legal concept. Merely, these offences contain “constraint and menace” in the legal provisions. Nevertheless, in the case of these offences the victim’s consent entails that the particular crime is not punishable, but on that ground that the crime is not completed.  Originally the victim’s consent belongs to those justifications which exclude the material illegality of the crime. Since this justification has not been composed in the criminal code, it is up to the courts to elaborate the concept and content of the consent defense.

 

Although the consent defense takes special place in Hungarian criminal law, there are few national publications about it. Criminal law handbooks only mention the elemental rules of this defense. All in all, the victim’s consent has been only elaborated partially in the Hungarian legal literature. Therefore, the aim of this study is to give a comprehensive analysis of the victim’s consent, and to highlight the every-day questions of this topic, especially the relativisation of the consent defense.

 

Of course, a moderate relativity can be seen in terms of every legal institution, since the legal system is culturally and historically determined, which entails that the legal institutions vary from time to time in every legal culture. Still, the consent of the victim is somehow different. On the one hand, one can see the expansion of this justification: the consent principle conquers private sphere, thus we legitimate a number of interpersonal actions by using the concept of personal autonomy and the consent of the injured person. In line with this tendency the judicial practice denies the applicability of the consent defense, when act itself – which the victim consented to – is against the accepted societal values. This twofold situation gives a grieve relativity to the consent defense, which I intend to underline throughout this study.

 

 

The dissertation analyses the victim’s consent through three basic and interlinking structural main chapter. The first chapter describes the elements of the victim’s consent, highlighting the uncertainties of this conception. This chapter contains three themes: (a) the changes in the concept of victim and consent, (b) the requirements concerning the lawfulness of consent, and finally (c) the elements of the victim’s mens rea.

 

I must underline that I did not involve “private motion” to the study, so I did not examine the link between the victim’s consent and private motion, because whilst consent has a substantial nature, I think that private motion is a procedural instrument. The victim’s procedural status is not the part of the dissertation. I ignored the private motion also on that ground that it does not fit into the category of justifications to unlawfulness of crime and as such it has a different nature than consent has. Finally, the lack of private motion emerges after the criminal conduct has been completed, whilst the victim’s consent must been given before or latest throughout – and not after – the conduct.

 

After analyzing the concept of consent defense, I present the legitimacy of it. The relativity of the victim’s consent is the most apparent in terms of its legitimacy. Through that chapter I examine which legal objects (which basic rights) legitimate the consent. The chapter contains three subcategories: firstly, I try to find what influences the legitimacy of consent, secondly I set a system of those basic rights where consent is legitimate, thirdly I examine the classic cases of offences, where consent is legitimate, such as sport activity, sadomasochism and medical intervention. By analyzing these topics my aim is to enlight, which injuring conducts may be legitimate by consent.

 

The third chapter examines the connection between the victim’s consent and criminalization. The basic idea of that chapter is the contrast between the victim’s personal autonomy and the positive obligation of the state. In my opinion, by recognizing the consent as a defense the state makes such a decision of legal policy, which is identical to criminalization and decriminalization. Consequently, the limitation of the victim’s personal autonomy – by banning the consent – must be based in a constitutional ground. Thus, the chapter at stake analyses the indication of the victim’s autonomy and also those uncertainties, which cover criminalization. In my point of view, the acceptance of consent as a defense is a question of actual social-, moral-, and legal policy. Therefore, I also analyze the matter of moral based criminalization, the connection between morals and the criminal law. The finalizing part of that chapter makes a survey on the codification of the consent defense, and insists to positively answer that particular question, whether the consent defense shall be codified in the criminal code.

 

The victim’s consent emerged in the civil law, but it has spread to the field of criminal law. The criminal law adjudication of the consent defense has variously changed in the context of time and geographical space. Throughout this dynamic motion a tendency of expansion can be seen, whereby the application of the consent defense widens the frames of private sphere. On the other hand the legislature and jurisprudence sets remarkable limits to the victim’s autonomy by banning consent. These above changes imply the relation between the state and private agents, and nevertheless define the criminal law status of private persons.

 

The legal consequences and legitimacy of consent are a matter of actual criminal policy. Therefore the relation between the state’s responsibility for positive obligation and the victims private autonomy determine if consent is tolerated or not. The nature of the injured value of the consented crime has also an impact of the legal adjudication of the consent. As detailed in the German legal literature those criminal actions which offend a right of community cannot be justified by consent, whilst those offending private rights might be done so. In Anglo-Saxon legal systems the malum in se and malum prohibitum categories reflect to these former concepts. One must take into account that consent has a legitimizing effect if the consented action is not against the societal norms and public morality.

 

The social benefit of the consented action is a core element in the acceptability of consent. All in all, consent constitutes a materially lawful justification if the legislator and also court assess it socially acceptable. Once the offended right is absolutely protected by the state, consent remains ineffective.

 

[1] Ulpianus, Digestes, 47.10.1.5