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 as used in such fields as the law, medicine, research, and sexual relationships. Consent as und ...

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 Social norms are shared standards of acceptable behavior by groups. 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 soci ...

s, or because one of the parties to the activity is considered a "victim" despite their informed consent. Consensual crimes can be described as crimes in which the victim is the

state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States * ''Our S ...

, 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. Soci ...

at large and so affect the general (sometimes

ideological An ideology is a set of beliefs or philosophies attributed to a person or group of persons, especially those held for reasons that are not purely epistemic, in which "practical elements are as prominent as theoretical ones." Formerly applied prim ...

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 or otherwise in sexual behavior. Sexual ethics seeks to understand, evaluate and critique interpersonal relationships and ...

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 * Children (normally measured as being under the legal age of consent) * 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, physical, ...

* Severely

mentally ill A mental disorder, also referred to as a mental illness or psychiatric disorder, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. Such features may be persistent, relapsing and remitt ...

* 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 part in promoting problem solving and in producing flexible forward planning, or be disruptive. When mood swings are severe, they may be categorized as par ...

s * Acting under

duress Coercion () is compelling a party to act in an involuntary manner by the use of threats, including threats to use force against a party. It involves a set of forceful actions which violate the free will of an individual in order to induce a desi ...

* Addicted * Intoxicated *

Unconscious Unconscious may refer to: Physiology * Unconsciousness, the lack of consciousness or responsiveness to people and other environmental stimuli Psychology * Unconscious mind, the mind operating well outside the attention of the conscious mind a ...

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, see R v Coney). * Murder or

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 ...

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 failed in the attempt to kill themselves would no longer be prosecuted. Th ...

, suicide 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, 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 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 assaults 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 Sadomasochism ( ) is the giving and receiving of pleasure from acts involving the receipt or infliction of pain or humiliation. Practitioners of sadomasochism may seek sexual pleasure from their acts. While the terms sadist and masochist refer ...

). In more extreme cases of

edgeplay In BDSM, edgeplay is a subjective term for activity (sexual or mentally manipulative) that may challenge the conventional safe, sane and consensual ("SSC") scheme; if one is aware of the risks and consequences and is willing to accept them, th ...

where a

rape fantasy A rape fantasy (sometimes referred to as rapeplay) or a ravishment is a sexual fantasy involving imagining or pretending being coerced or coercing another into sexual activity. In sexual roleplay, it involves acting out roles of coercive sex. ...

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, s74 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 defence, 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, 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 Pornography laws by region vary throughout the world. The production and distribution of pornographic films are both activities that are lawful in many, but by no means all countries so long as the pornography features performers aged above a c ...

). *

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 governments ...

laws, such as obscenity 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 behavior). Although it usually refers to adults engaging in sexual ...

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 transm ...

through consensual sexual activity. *

Adultery Adultery (from Latin ''adulterium'') 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 ...

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