A consensual crime is a

public-order crime In criminology, public-order crime is defined by Siegel (2004) as "crime which involves acts that interfere with the operations of society and the ability of people to function efficiently", i.e., it is behaviour that has been labelled criminal ...

that involves more than one participant, all of whom give their

consent Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions used in such fields as the law, medicine, research, and sexual consent. Consent as understood i ...

as willing participants in an activity that is unlawful. Legislative bodies and interest groups sometimes rationalize the criminalization of consensual activity because they feel it offends

cultural norm A social norm is a shared standard of acceptable behavior by a group. Social norms can both be informal understandings that govern the behavior of members of a society, as well as be codified into rules and laws. Social normative influences or s ...

s, or because one of the parties to the activity is considered a "victim" despite their

informed consent Informed consent is an applied ethics principle that a person must have sufficient information and understanding before making decisions about accepting risk. Pertinent information may include risks and benefits of treatments, alternative treatme ...

. Consensual crimes can be described as crimes in which the victim is the

state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...

, the judicial system, or

society A society () is a group of individuals involved in persistent social interaction or a large social group sharing the same spatial or social territory, typically subject to the same political authority and dominant cultural expectations. ...

at large and so affect the general (sometimes

ideological An ideology is a set of beliefs or values attributed to a person or group of persons, especially those held for reasons that are not purely about belief in certain knowledge, in which "practical elements are as prominent as theoretical ones". Form ...

or cultural) interests of the system, such as common

sexual morality Sexual ethics (also known as sex ethics or sexual morality) is a branch of philosophy that considers the ethics or morality of Human sexual behaviour, sexual behavior. Sexual ethics seeks to understand, evaluate and critique interpersonal relatio ...

Victimless crime A victimless crime is an illegal act that typically either directly involves only the perpetrator or occurs between consenting adults. Because it is consensual in nature, whether there involves a victim is a matter of debate. Definitions of vi ...

s, while similar, typically involve acts that do not involve multiple persons. Drug use is typically considered a victimless crime whereas the sale of drugs between two or more persons would be a consensual crime. The fact that no persons come forward to claim injury has essentially made the two terms interchangeable in common use.

Giving consent

When discussing consensual crime, one issue is whether all the participants are capable of giving genuine legal consent. This may not be the case if one or more of the participants are: * Animals *

Child A child () is a human being between the stages of childbirth, birth and puberty, or between the Development of the human body, developmental period of infancy and puberty. The term may also refer to an unborn human being. In English-speaking ...

ren (normally measured as being under the legal

age of consent The age of consent is the age at which a person is considered to be legally competent to consent to Human sexual activity, sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is un ...

) * Severely

disabled Disability is the experience of any condition that makes it more difficult for a person to do certain activities or have equitable access within a given society. Disabilities may be cognitive, developmental, intellectual, mental, physica ...

* Severely

mentally ill A mental disorder, also referred to as a mental illness, a mental health condition, or a psychiatric disability, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. A mental disorder is ...

* Not fully informed about the issues involved * Suffering from

mood swing A mood swing is an extreme or sudden change of mood. Such changes can play a positive or a disruptive part in promoting problem solving and in producing flexible forward planning. When mood swings are severe, they may be categorized as part ...

s * Acting under

duress Coercion involves compelling a party to act in an involuntary manner through the use of threats, including threats to use force against that party. It involves a set of forceful actions which violate the free will of an individual in order to i ...

* Addicted * Intoxicated * Unconscious

Examples

The generally accepted definition of a consensual crime is a criminal act committed by two or more people, who consent to involvement, and does not involve any nonconsenting individuals. The following is a list of criminal acts in various societies at various times and in different societies, where the issue of liability hinges on consent or the lack of it: * Unlicensed prize fights and other criminal activities of a sporting nature where the players consent and the audience actively approves of what they see (in

English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

, see '' R v Coney''). *

Murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...

incitement In criminal law, incitement is the encouragement of another person to commit a crime. Depending on the jurisdiction, some or all types of incitement may be illegal. Where illegal, it is known as an inchoate offense, where harm is intended but ma ...

to murder where one person actively solicits others to terminate their life, or the life of another. For example, a driver may be trapped in a burning tanker full of gasoline and beg a passing armed police officer to shoot him rather than let him burn to death. These situations are distinguishable from soliciting the cessation of life-sustaining treatment so that the injured person may die a natural death, or leaving instructions not to resuscitate in the event of death. Note that, in English law under the

Suicide Act 1961 The Suicide Act 1961 ( 9 & 10 Eliz. 2. c. 60) is an Act of the Parliament of the United Kingdom. It decriminalised the act of suicide in England and Wales so that those who survived a suicide attempt would no longer be prosecuted. The text of ...

suicide Suicide is the act of intentionally causing one's own death. Risk factors for suicide include mental disorders, physical disorders, and substance abuse. Some suicides are impulsive acts driven by stress (such as from financial or ac ...

is not a crime committed by a person who fails to die. Thus, those who assist in a suicide attempt would be participants in a victimless crime because the would-be suicide cannot be tried. If the suicide succeeds, the legal issue is whether the assistants actively facilitated the death, or as doctors, nurses or carers, omitted to prevent natural death in circumstances where society believes they have no legal duty to take that preventive action. Some countries have characterised some of the possible situations as

assisted suicide Assisted suicide, sometimes restricted to the context of physician-assisted suicide (PAS), is the process by which a person, with the help of others, takes actions to end their life. Once it is determined that the person's situation qualifie ...

, while others make no judgment by imposing a separate label on conduct within the field of homicide. The issues may more generally relate to

euthanasia Euthanasia (from : + ) is the practice of intentionally ending life to eliminate pain and suffering. Different countries have different Legality of euthanasia, euthanasia laws. The British House of Lords Select committee (United Kingdom), se ...

where society debates whether, and in what circumstances, to terminate the lives of its citizens. Whichever philosophical route is followed, the laws will either criminalize any situation in which death results or permit death to be caused under controlled circumstances. * Sexual and non-sexual

assault In the terminology of law, an assault is the act of causing physical harm or consent, unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may ...

s involving the use or threatened use of violence which causes injuries and which would be criminal in all other situations (e.g.

sadism and masochism Sadism () and masochism (), known collectively as sadomasochism ( ) or S&M, is the derivation of pleasure from acts of respectively inflicting or receiving pain or humiliation. The term is named after the Marquis de Sade, a French author known ...

). In cases of consensual nonconsent where a rape fantasy may be enacted by prior agreement, the offence of rape will not be committed because the "victim" has actually consented to sexual intercourse. The issue of consent in fact, or belief in the existence of consent, is fundamental to determining whether a rape has, or has not, been committed. In English law, for example, s. 74 Sexual Offences Act 2003 provides that consent is present "if he agrees by choice, and has the freedom and capacity to make that choice". If the "victim" is unconscious when penetration occurs, he would not be consenting, but this might not be rape if there is a subsisting sexual relationship, e.g. an agreement of consent for this scenario has been agreed upon by all parties beforehand. Note that, if the "victim" is physically injured, the causing of those injuries can still be charged as an assault whether there is actual consent or not. As a defense, offenders may plead that the other consented to the acts, and argue that any injuries sustained were accidental rather than intentional, leaving it to the jury to make a decision on their truthfulness. ** See more fully the discussion in Dennis J. Baker, ''The Right Not to be Criminalized: Demarcating Criminal Law's Authority'' (Ashgate, 2011) where Dr Baker argues (in chapter 5) that there is a limit to consensual harm doing—but that the threshold of harm has to be reasonably high. Baker also asserts that it is only the harm-doer who should be criminalized; not the harm-receiver. He also points out there is a difference between risking harm to others (as those who engage in casual sex do when they know that there is a chance they might have HIV), and deliberately exposing another to the risk of HIV, for example, where a person has been told he or she is a carrier and fails to inform his or her sexual partner. *

Pornography Pornography (colloquially called porn or porno) is Sexual suggestiveness, sexually suggestive material, such as a picture, video, text, or audio, intended for sexual arousal. Made for consumption by adults, pornographic depictions have evolv ...

, which can be illegal to produce, distribute or possess in some countries, even if the participants consented to the acts, and the acts themselves are legal (see List of pornography laws by country). *

Censorship Censorship is the suppression of speech, public communication, or other information. This may be done on the basis that such material is considered objectionable, harmful, sensitive, or "inconvenient". Censorship can be conducted by governmen ...

laws, such as

obscenity An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin , , "boding ill; disgusting; indecent", of uncertain etymology. Generally, the term can be used to indicate strong moral ...

laws, may criminalise distribution of material even if it is only viewed by those who consent to viewing it. *

Statutory rape In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent (the age required to legally consent to the behaviour). Although it usually refers to adults engaging in sex ...

where the underage participant(s) give actual consent, but the law-makers of the relevant jurisdiction have determined that people of that age are not legally capable of giving informed consent (not informed adequately about the activity). *

Criminal transmission of HIV Criminal transmission of HIV is the intentional or reckless infection of a person with the human immunodeficiency virus (HIV). This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the trans ...

through consensual sexual activity. *

Adultery Adultery is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal consequences, the concept ...

and, in general, sex outside marriage or other established relationships where all persons immediately involved give consent.

Notes

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Giving consent

Examples

See also

Notes

Further reading