Dsouza, M;
(2021)
The Power to Consent and the Criminal Law.
(Faculty of Laws University College London Law Research Paper
4/2021).
UCL Faculty of Laws: London, UK.
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Abstract
I examine what it is to have the ability to validly consent, and conclude that it is a Hohfeldian power. On that basis, I argue that the necessary conditions for the grant of consent must include all the necessary conditions for the exercise of a power. Using this idea, I attempt to isolate context-independent minimum conditions necessary for the grant of consent. I argue that the grant of consent requires an exercise of volition - the making of a choice - and that there exists no general requirement either that this choice be to invite a boundary crossing rather than merely to permit it, or that the choice invariably be accompanied by a performative token. Furthermore, I argue that the power to consent cannot be exercised so as to have retrospective effect. At most, the expectation of ratification may give rise to an entitlement to a supervening defence.
| Type: | Working / discussion paper |
|---|---|
| Title: | The Power to Consent and the Criminal Law |
| Open access status: | An open access version is available from UCL Discovery |
| DOI: | 10.2139/ssrn.3787374 |
| Publisher version: | https://dx.doi.org/10.2139/ssrn.3787374 |
| Language: | English |
| Additional information: | This version is the version of record. For information on re-use, please refer to the publisher’s terms and conditions. |
| Keywords: | consent, autonomy, subjective, elements of offence, ratification |
| UCL classification: | UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws UCL > Provost and Vice Provost Offices > UCL SLASH UCL |
| URI: | https://discovery.ucl.ac.uk/id/eprint/10150437 |
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