Academic journal article University of Western Sydney Law Review

Rethinking Consensual Harm-Doing

Academic journal article University of Western Sydney Law Review

Rethinking Consensual Harm-Doing

Article excerpt

 
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. …

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