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Undermining Prima Facie Consent in the Criminal Law

Dsouza, M; (2014) Undermining Prima Facie Consent in the Criminal Law. Law and Philosophy , 33 (4) pp. 489-524. 10.1007/s10982-013-9188-z. Green open access

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Abstract

Even when a person appears to have consented to another’s interference with her interests, we sometimes treat this apparent consent as ineffective. This may either be because the law does not permit consent to validate the actions concerned, or because the consent is undermined by the presence of additional factors which render it insufficiently autonomous to be effective. In this paper I propose that the project of categorising and systematically analysing the latter set of cases, would be furthered by recognising (1) that prima facie consent is undermined when the prima facie consenter’s autonomy to choose whether or not to consent has been unfairly constrained, and (2) that theoretical and doctrinal clarity can be promoted by analysing the factors that unfairly constrain autonomy in the criminal law using a framework developed in contract law to determine analogous questions arising in relation to assent to a contract.

Type: Article
Title: Undermining Prima Facie Consent in the Criminal Law
Open access status: An open access version is available from UCL Discovery
DOI: 10.1007/s10982-013-9188-z
Publisher version: http://dx.doi.org/10.1007/s10982-013-9188-z
Language: English
Additional information: This version is the author accepted manuscript/version of record. For information on re-use, please refer to the publisher’s terms and conditions.
UCL classification: UCL
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/1514571
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