Snyman_Consent

Criminal Law Overview

Culpability and Justification

• In criminal law, necessity as a form of coercion can diminish culpability.

• The law does not assume one person's life is more valuable than another's; all individuals are equal under Section 9(1) of the Constitution.

• X's conduct towards Y was unlawful, implying Y was entitled to act in self-defense.

• X's culpability is absent if the law did not reasonably expect her to act otherwise.

• The normative theory of culpability says that X’s conduct wasn't blameworthy if it did not meet the legal standards of culpability.

Necessity as Mitigating Factor

• If the necessity defense is rejected, the threat faced by X can be considered when determining punishment severity.

Consent in Criminal Law

Elements of Consent

• Consent may render unlawful conduct lawful only in limited circumstances, especially in certain crimes like theft.

• Key Points on Consent:

  • Consent does not operate as a ground of justification in all crimes.

  • If no consent is given in crimes where it is needed, the conduct is unlawful.

  • If X believes consent was given, she may escape liability due to lack of culpability.

Requirements for Consent as a Defense

1. Nature of the Crime: The crime must be one where consent is recognized legally as a valid defense.

   • Consensual crimes include:

     • Crimes against individuals (assault, theft)

     • Some crimes have absolute prohibitions (murder).

     • Some crimes may or may not accept consent (sexual assault).

2. Categories of Consent in Crimes Against Individuals:

   • Crimes where consent operates as a defense (e.g., theft).

   • Crimes where consent is never a defense (e.g., murder).

   • Crimes where consent sometimes applies (e.g., assault).

3. Valid Consent Requirements:

   • Voluntary Consent: Must be given without coercion.

   • Mental Capacity: The individual must understand the nature and consequences of their consent.

   • True and Material Facts: The individual must be aware of all significant facts regarding the act.

   • Express or Tacit Consent: Consent can be either predefined (express) or assumed through actions (tacit).

   • Timing of Consent: Consent must be given before the act occurs; it cannot be retroactive.

   • Legitimacy of Consent: Must generally be provided by the complainant, but exceptions exist.

Presumed Consent

Definition and Application

• Presumed consent applies when an action that infringes on another's interests is justified if the consent of the individual is not immediately obtainable.

• This concept often arises in urgent situations where action is necessary for the individual's safety or health.

Examples

1. Medical Emergencies: An ambulance driver transports an unconscious person to a hospital without prior consent, justified under presumed consent.

2. Protective Actions: A neighbor acts to protect another's property when unable to contact them, again justified through presumed consent.

Requirements for Presumed Consent Defense**

• Consent must not be obtainable in advance.

• There must be reasonable grounds for believing the individual would consent if aware of all facts.

• The belief must exist at the time of the act.

• The protagonist must intend to protect the other's interests.

• The act must not go beyond what the other party would probably consent to.