Victims' Excuses: The Case of Fraudulently Procured Consent

Abstract

Normally, our law permits an accused party to plead in his own defense that his victim consented to his conduct. Although there are certain wellknown exceptions (e.g., homicide, mayhem), even the criminal law normally accepts the victim's consent as a defense for the accused. In the civil law and in some crimes (e.g., theft, robbery, false imprisonment, rape) where the victim has consented to the harm caused him by the defendant, or has assumed the risk in advance of such harm ensuing, then the defendant can cite this consent as grounds for his own exculpation. This defense is properly classified as a justification (as opposed to an excuse) because it shows that the defendant's act a good thing, or the right or sensible thing to do' but, rather, because it shows that it was a legally permissible thing to do, something legally prohibited. In contrast an exculpatory excuse would show that whether or the act was justified (either right or permitted) the actor was fully or even partially responsible for it. If he acted under coercion, for example, or because of an honestly mistaken belief, or because of impaired or undeveloped capacities, then it is not correct to say baldly2 that he did it at all. The consent, then, of the person acted upon (who is only sometimes properly called a victim) is often a justification and, hence, a wholly exculpatory defense for the person who is accused of acting upon him. If it can be shown, however, that the consent was genuine because its expression was caused by force or threat of violence, or was the consequence of fraudulently created, defective belief, or the product of the consenter's impaired or undeveloped faculties, then the consensual exculpation (justification) is available to the defendant. The victim (or more likely the state, if it is a criminal trial), in arguing that the consent was invalid in one of these ways, is, in effect, offering one of the standard kinds of excuses for his act of expressing agreement or consent. His excuse (denial of responsibility) for consenting shows that the apparent