Consent as a Defense

Introduction

Anybody who commits a crime or an offensecannot be held liable for it. The criminal law not only provides various definitions for the offense but Also defenses which can be used in court to prove his innocence. The burden lies on the person who has committed the offense to prove in the court that he was actually not guilty of committing that offense. The definition of crime makes it clear that anact which would be a crime otherwise, can be justified by the person and the accuse can be excused. The criminal law in India has codified certain defense to give a chance to the accused to prove his innocence. These defenses prove that even if someone has committed a crime or offenses, he shall not be held liable for the same. The main reason for the codification of such defenses in the Indian criminal law is that sometimes there are certain circumstances that the act of the person accused can be justified. The main principle here stands is men’s rea if the person accused of a particular crime does not enroot the required means tea then the accused can take the help of the defenses cited to be forgiven. The defenses are being divided into 2 categories Justifiable and excusable. These defenses are recognized as the ‘General Exceptions’ under sections 76-106vof the code. Under criminal law, consent is an active impression of ‘intention’. A crime basically has 2 ingredients Actus rea and mens rea. A person will be criminally liable if he enroots both the conditions.

What is consent?

Consent can be defined as an act which is accompanied by a reason and proper deliberation to do a particular act.Consent mainly shows the free will present in the mind of the person committing the act. It deals with the knowledge of the person to weigh the balance of good and evil and then act accordingly. However, the word ‘consent’ is nowhere defined in IPC. Section 87-93 of the IPC talks about consent being a general exception. Section 92 deals with the acts which are done in good faith that they would be beneficial for the person for whom they are being done, with or without the consent of the latter. Moreover Section 90 talks about what does not stand firm as a consent. It clearly stated that consent is given by a person under the fear of injury or misconception of facts or by reason of unsoundness of mind, intoxication, or by a child under the age of 12 years.Consent sent can be given in any form written or spoken. Hence, we can see that there are some instances where the consent would not qualify as a defense against the crime or offense committed by the accused.Also, the types of consent include implied consent expressed consent, informed consent unanimous consent. The following are the situations where the consentwould not qualify as consent and the defense cannot be used:

  1. When the consent is obtained from a person under the fear of serious injury or fear. This will totally not qualify as consent in the court.A consent obtained by any threat or violence or under the fear of an injury would not be a qualifying defense.
  2. When the consent is obtained under the misconception of facts. If a person gives consent under the misconception of important facts then it would not qualify as consent and would not be a defense. For example, if women have sexual intercourse with a man knowing that he is not married then she has not committed any offense. The man would be guilty of not telling her the truth.
  3. When the consent is obtained from a person who is of unsound mind. If somebody takes the consent of a person who is not of a sound mind then it would not qualify as consent and would not be a defense. Because a person with an unsound mind is not able to make the right decisions.
  4. When the consent is obtained from a person who is in an intoxicated state of mind. Because he will not be capable of understanding the nature and consequences of their acts. This the consent would not qualify and would not be a defense.
  5. When the consent is obtained by a child i.e. under the age of 12years. Sec 90 mentions that consent given by a child below 12 years of age would not qualify as consent and thus cannot be used as a defense.

Thus, we can conclude by the above circumstances that consent given or obtained under duress, the misconception of any factor by a person of unsound mind or by a child below 12 years of age would not be valid consent. The above circumstances and sections shall now be discussed in detail.

Section 87-92 of the code deals with various conditions that can be used as a defense.

  • Section 87- Act not intended and not known to be likely to cause death or grievous hurt is done by consent. If A while playing fairly hurts B,he will not be held liable for any offense.
  • Section 88- Act not intended to cause death, done by consent in good faith for a person benefit. If A is a surgeon and B is suffering from a deadly disease if not operated soon, he may die. Now with the consent of B, if A performs surgery on B to save him and instead B died, A is not liable for any offense.
  • Section89 –Act did in good faith for benefit of child or insane person, by or by consentingthe guardian.
  • Section 90–Consent known to be given under any sort of misconception or under fear. Consent would not qualify as consent if it was obtained under fear of injury or misconception.
  • Section 91- Exclusion of acts which are offenses independently of harm cause.
  • Section 92- Act done in good faith for the benefit of the person without consent.

There are also certain conditions that are needed to be fulfilled to use as a defense:

  • The consent must be expressed or implied.
  • The consent given must not intend to cause death or any grievous hurt.
  • The consent should not be given under any fear of injury or misconceptions.
  • The consent should be given by the person
  • The person giving the consent should be above 12 years of age or should be of unsound mind or under intoxication.

What is expressed consent?

The expressed consent in criminal law means giving permission for something either verbally or in writing. Both types are accepted. For example, if A wants to borrow money and you said yes then this would be considered an expressed consent. And if a doctor wants your consent in an operation that may be risky by signing the consent form then it’ll also be your expressed consent.

What is implied consent?

The implied consent in criminal law means giving permission for something either by conducts and acts or conducts presumed.

Scope of section 89 and 92

Section 89 and 92 talks about benevolence and goodwill to be used as a defense.

Section 89 deals with the fact that ifconsent obtained by a person below 12 years of age or of unsoundness of mind or if he is under intoxication it will not be held lawful in the eyes of law.This the consent is given by their legal guardian or any other person on their behalf. The act must be done in good faith for the benefit of the person harmed.

  • This exception shall not extend to any cause of death or attempting to cause death.
  • This exception shall not extend to do anything which he knows that is likely to cause death.
  • The exception shall not extend to the situation, of voluntary previous hurt or an attempt to cause any grievous hurt.
  • This exception shall not extend to any abutment of any offense, to the committing of which offense it would not extend.

Section 92deals with the fact that if an act is done in good faith of a person without consent it would not be considered as an offense. Some exceptions are: 

  • This exception shall not extend to any intentional causing if death or any attempt to cause death.
  • That this exception shall not extend of doing anything which can be likely to cause death or previous hurt.
  • This exception shall not extend to the voluntary causing of hurt or attempt to cause hurt.
  • This exception shall not extend to the abetment of any offense.

The basic and foremost principle of this mention us to safeguard the medical practitioners for the larger interest of society A life may be risked for saving a life or comforting the person.

Conclusion

From the above discussion, we can believe that a person who has committed a crime shall not be necessarily held liable. The provided defenses in criminal law can be used to prove his innocence if the matter is moved in the court. Albeit there are certain limitations mentioned to each and every exception. All the defenses are mentioned in chapter 4 of IPC as general exceptions of the code, may be used at significant times to rescue the accused of criminal liability.

References:

Questions

  1. What is implied consent?
  2. What is consent?
  3. Explain Section 88.
  4. Which act is basically made to safeguard the medical practitioners?
  5. What is the age limit of the child set for the lawful consideration of his consent?

Leave a Reply

Your email address will not be published. Required fields are marked *