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 THE
MODERN LAW REVIEW
Volume 26 May 1963 No. 3

TWO VIEWS ON CONSENT IN THE

CRIMINAL LAW
IN an earlier article,' I discussed some aspects of the consent
issue in sexual offences. But this is not the only area of the
criminal law where consent may be a crucial element. The consent
issue is also of great importance on the question of determining the
legality of surgical operations, a somewhat shadowy branch of the
criminal law where the boundaries of legality and liability are not
sharply drawn. It is proposed in this article to discuss the consent
issue in this context of surgical operations and then to offer some
general comparative observations, drawn mainly from French law.
This will be done with the aim of revealing a general difference of
approach which may be instructive.

SURGICAL OPERATIONS

It is of course beyond dispute in any legal system that surgical

operations which are on the whole required for the health of the
patient and which are done with the consent of the patient by
properly qualified medical men who act with due care, are legal.
But this does not mean that there are no problems in this area,
for disputes may arise about the proper approach in cases where
the operator is not qualified in the usual sense, or where the
operation is one not strictly necessary for the patient's health but
which he may nevertheless wish to undergo, or where because of
physical or legal disability the consent of the patient himself
cannot be obtained. The answer which one may make to the
question of the legality of such operations may depend in part
on the general theory which is accepted to account for the legality
of surgical operations.
In common law jurisdictions it is usual to explain the legality of
surgical operations on the ground of the consent of the patient.
1 (1962) 25 M.L.R. 672.
233
VOL. 26 9
 THE MODERN LAW REVIEW VOL. 26

If one is then asked how this can apply where the patient is
unconscious or too sick to express himself, the usual answer
will be to shift ground and explain the legality of a surgical
operation in such a case by invoking the doctrine of necessity.2
The consent of the patient in this context may clearly be viewed
as an aspect of public policy and, with respect to English law, the
question must be whether there is not undue emphasis on this one
element to the exclusion of other important considerations. That
the consent of the patient is the most prominent factor in the
English approach to this issue can be illustrated by two examples.
On the authority of two cases in the early nineteenth century
it appears that it is not a common law offence of assault and
battery, or, in appropriate cases, homicide, for an unqualified
person to perform a surgical operation on another with the other's
consent, provided that the operation is otherwise legal. So in
Van Butchell the accused was charged with manslaughter in that he
had caused the death of a patient on whom he had performed an
operation for a disease of the rectum." There was some doubt
as to whether the accused was a member of the College of Surgeons.
Counsel for the prosecution quoted passages from Blackstone, Hale
and Coke 4 which displayed disagreement on the question of whether
it was felonious homicide for a person not being a physician or
surgeon to cause the death of another by alleged medical or
surgical treatment. The court was firmly of the view that the
question of the accused's qualification was not in issue and that,
provided that the patient consented, that the operation was not
performed with gross carelessness and that it was not otherwise
unlawful, the accused must be acquitted. Again in Williamson s
the accused who was not a regularly educated accoucheur was in
the habit of acting as a male midwife and caused the death of a
patient when he mistook a prolapsed uterus for a part of the
placenta. He was acquitted on a charge of murder.
In the time and condition under which these cases were decided,
when medical qualifications were less sharply defined than today
and when the supply of qualified medical men was very short,
these decisions were sensible. As the court pointed out in Van
Butchell, " in remote parts of the country, many persons would
be left to die if irregular surgeons were not allowed to practise." 6
2 See, e.g., Halsbury, Laws of England, Vol. 33, p. 33.
3 (1829) 3 C. & P. 629.
4 Blackstone, Commentaries, Bk. 4, Ch. 14; Hale, Pleas of the Crown, p. 429;
Coke, Fourth Institute, p. 251.
5 (1807) 3 C. & P. 635. Manson, The Builders of Our Law (1904), p. 147
tells us that Patteson J., in an unreported case (R. v. Salmon), also ruled
that where an unqualified person prescribes for a patient, who dies, there
is no liability in the absence of gross carelessness. He goes on: "When
we find that the prisoner in the case in question had prescribed twenty of
No. 1 of Morrison's Pills at night and twenty of No. 2 in the morning, we
feel the jury could hardly do anything else but find him guilty, though they
recommended him to mercy."
6 (1829) 3 C. & P. at p. 633.
MAY 1963 TWO VIEWS ON CONSENT IN THE CRIMINAL LAW 285

Today these considerations do not obtain but there would still

be great difficulties in regarding all medical treatment by unquali-
fied persons as a battery. The line between the domestic binding
up of a cut finger and the sustained practice of the quack is
probably still best drawn by statutory penalties for practising
without qualification or licence, leaving open the possibility of a
conviction for homicide when there has been gross negligence.
But it must be emphasised that, although the consent test works
well enough here, this is in fact because it is tacitly supported
by other important factors of public policy which combine to make
it difficult and unwise to treat all non-qualified medical treatment
as battery.
The suitability of the consent test has of late been sharply
called into public debate by the controversy over the propriety of
performing urgently needed operations on children when the
consent of the parent or guardian cannot be obtained.7 It is
generally assumed that to perform an operation on a child whose
condition urgently demanded it if his life were to be saved would
be a battery, if done in defiance of the parent's refusal of consent.
That this assumption can lead to sombre outcomes is evidenced
by the Canadian case in 1958 where a Jehovah's Witness refused
permission for a blood transfusion to be given to his fourteen-
year-old son. The boy died and doctors testified at the inquest
that his life would have been saved if a transfusion had been
given. 8 And yet a large body of opinion clings to the preservation
of the parent's unfettered control of such situations. A leading
article in The Times, after recognising the attractions of the argu-
ment that " a child's life and health should come before the
prejudices of his parents," goes on to comment:
" The argument is compelling but not conclusive. Not all
cases in which parents may differ with the hospital authorities
are of the straightforward kind which is chosen as a model
for the purposes of persuasion. There may be a difficult
7 The Sheffield Regional Hospital Board, alarmed at the possibility of death
or grave injury to a child through inability to perform an urgent operation,
proposed to set up an emergency procedure in such cases for summoning with
great speed a juvenile court, under s. 62 of the Children and Young Persons
Act, 1933. This court might then declare the child to be in need of care
and protection and commit him to the care of the local authority who might
then be expected to give immediate consent to the operation. After the
necessary medical treatment the child would be handed back to the custody
of its parents. See The Times, March 14, 15, 16 and 17, 1960 and Observer,
March 20, 1960. It is pointed out in (1960) 110 L.J. 335 and in (1960) 34
Aust.L.J. 28 that there might be major legal difficulties in the way of the
scheme proposed by the Sheffield Regional Hospital Board. The situation
in Pennsylvania is discussed by Trescher and O'Neill, " Medical Care for
Dependent Children: Manslaughter Liability of the Christian Scientist
(1961) 109 U. of Pennsylvania L.R. 203.
8 See "When Parents Disagree with Doctors," Observer, March 20, 1960.
It is true that blood transfusions are occasionally harmful and may even lead
to death. See the case reported in The Times, October 17, 1961, and a
pamphlet, Blood, Medicine and the Law of God (1961), published by the
Watchtower Bible and Tract Society of New York.
 THE MODERN LAW REVIEW VOL 26

reckoning of risks and probabilities concerning which enthusi-

astic surgical opinion may argue one way and a parent's
more general concern another. Again, the parent's objection
may not always be one of principle: he may for good or
bad reasons distrust that particular hospital; or his objection
may be based on a deep, though unscientific, understanding
of the child and on his responsibility for its future, neither
of which is shared by the doctors recommending an operation.
Even if it is conceded that there are rare cases in which the
court might properly intervene, the exercise of the discretion
opens up dangerous possibilities of misapplication." 9
This puts the arguments in favour of the status quo in perhaps
the most forceful and sympathetic light possible. But it does not
take sufficient account of the utter inability of the present law
to deal with the occasional clear case where all conceivably
reasonable medical opinion urges an operation as vitally necessary
for the preservation of life but the parent refuses on grounds
which are of an exotic religious or ethical nature repudiated by the
great majority of the community. If the parent's control of
his child is admittedly an interest to be balanced with others in
this policy decision, the point is surely sometimes reached where
the scales fall decisively in favour of the preservation of the
lives of children. The " dangerous possibilities of misapplication "
in the exercise of a court's discretion to which The Times refers
are matched by the dangerous possibilities of misapplication of
parental discretion. The law already severely curtails a parent's
freedom of choice in his treatment of his child. It very properly
holds the parent liable under the criminal law if he is cruel to
the child or if his neglect causes its death. We have here a clear
intervention by public policy in the parental control of children.
If a parent refuses consent to an operation necessary for preserving
the life of his child, if that refusal is based on exotic religious
grounds, and if the child dies as a result, then the parent will
very likely be guilty of at least a manslaughter. Is it not anoma-
lous that a surgeon should be liable for a battery in ignoring
the refusal of consent by a parent, when that refusal of consent
if acquiesced in might have rendered the parent liable for homicide ?
It is submitted that the present dilemma springs largely from
a too easy assumption that consent is the vital factor in establishing
the legality of a surgical operation. If it were recognised that
consent is no more than one important aspect of public policy in
such cases, admittedly crucial in most cases but not necessarily
in all, then some of the difficulty might disappear. It would then
be open for a court to acquit a surgeon charged with a battery
in such circumstances on the ground that public necessity in such
a case is established even in the absence of parental consent.
This would surely not strike a deadly blow at the rights of parents
9 The Times, March 16, 1960.
MAY 1963 TWO VIEWS ON CONSENT IN THE CRIMINAL LAW 237

for a surgeon would still have to satisfy a court that there were
vital interests at stake which outweighed the interests of the parent.
Admittedly, the real dilemma in the case of the desperately sick
child will often be the speed with which decisions must be taken.
Any attempts at judicial inquiry into the reasonableness of a parent's
refusal of consent may have to be completed in an hour or so,
which is scarcely the ideal climate for a tranquil review of
parental rights. And it may sometimes happen that a surgeon,
if he is to save the life of a child, will have to ignore parental
refusal in circumstances of such urgency that there is no time at
all for any judicial inquiry. This makes it all the more important
for a court to have to hand concepts that may allow it to acquit
a doctor in a proper case. That lack of consent is always fatal
to the legality of an operation has never been laid down authorita-
tively by a modern English court. Without any legislative inter-
vention it is perfectly possible for the courts to fall back on the
broader view of public policy available in the concept of necessity
to protect doctors in such cases. Necessity is a better guide than
consent, for necessity takes account of consent but consent takes
no account of necessity.
That consent is not the only criterion employed even in the
present state of the law has been seen in the instance of the
unconscious patient on whom an urgently necessary operation is
performed. It is generally assumed here that necessity would be a
good defence to a charge of battery if such a patient were later
to protest that he would never have given consent had he been
conscious. The only partial relevance of consent can be seen even
more sharply in the case of illegal operations or operations of
doubtful legality. Consent is irrelevant to the illegality of an
operation for abortion, unless it is done to preserve the health
of the mother, a clear instance of the crucial nature of factors of
public policy other than consent. 10 Operations the legality of
which is doubtful will be operations for voluntary sterilisation
and perhaps some cosmetic operations. Here the leading English
discussion is in Bravery v. Bravery."
In that case a wife was petitioning for divorce on the ground
of cruelty, one of her complaints being that the husband had
voluntarily undergone an operation for sterilisation without her
consent and without any reasons of ill health. The petition was
rejected on the ground, inter alia, that the wife had satisfied
10 Death resulting from an illegal operation for abortion leads commonly to a
conviction for manslaughter, not murder, which is perhaps an oblique recog-
nition in English law of the mitigating influence of the consent of the victim
in a homicide situation. So, the Court of Criminal Appeal in R. v. Stone
[1937) 3 All E.R. 920, 921, in speaking of death caused during an illegal
operation, said: " There, although an illegal and improper act was being done,
there was no intention to do any harm; there was no intention to do anything
against the wish of the person hurt; indeed the desire was to help or assist
the person who was hurt." And see now R. v. Pike [1961] Crim.L.R. 114.
11 [1954] 1 W.L.R. 1169; [1954] 3 All E.R. 59.
 THE MODERN LAW REVIEW VOL. 26

the court neither of her refusal of consent to the operation nor

that it had had a harmful effect on her health. The wife's appeal
was dismissed by the Court of Appeal, but in his dissenting judg-
ment Denning L.J., as he then was, made some important observa-
tions on the legality of the operation that the husband had
undergone:
" An ordinary surgical operation, which is done for the
sake of a man's health, with his consent, is, of course, perfectly
lawful because there is just cause for it. If, however, there
is no just cause or excuse for an operation, it is unlawful even
though the man consents to it. . . . When it [a sterilisation
operation] is done with the man's consent for a just cause,
it is quite lawful, as, for instance, when it is done to prevent
the transmission of an hereditary disease; but when it is done
without just cause or excuse, it is unlawful, even though the
man consents to it. Take a case where a sterilisation operation
is done so as to enable a man to have the pleasure of sexual
intercourse without shouldering the responsibilities attaching
to it. The operation is then plainly injurious to the public
interest. It is degrading to the man himself. It is injurious to
his wife and to any woman whom he may marry, to say
nothing of the way it opens to licentiousness.... , 12

It is submitted that this passage from the judgment of

Denning L.J., while happily insisting on the relevance of aspects
of public policy other than consent, is open to criticism on the
view which it takes of public policy in this instance. If the
objection is to having " the pleasure of sexual intercourse without
shouldering the responsibilities," then all contraceptive practices
should be made illegal. Contemporary policy has surely abandoned
a simple disapproval of all sexual intercourse which does not readily
take the chance of procreation. That the operation is " degrading
to the man himself " is highly debatable and might be thought to
be a personal emotional reaction rather than a scientific statement.
As such, it probably does not reflect public opinion generally.
That it is injurious to the wife or any woman the man may
marry is only a possibility, for the woman may herself not want
children. That it opens the way to licentiousness is not easy to see,
for the licentiously inclined person already has available a variety
of reasonably efficient contraceptive equipment.
Denning L.J. went on to draw a distinction between ordinary
contraceptive practices and sterilisation in that sterilisation " allows
no room for a change of mind." But, as he had pointed out
earlier in his judgment, the operation of vasectomy on a man is
sometimes reversible by another operation, at any rate for a
number of years after the original operation.'s In any event,
it may be suggested that irreversibility is not vitally important

12 [1954 ] 1 W.L.R. at p. 1180; [1954] 3 All E.R. at pp. 67, 68.

13 On this see Williams, Sanctity of Life and the Criminal Law (1957), p. 75.
MAY 1963 TWO VIEWS ON CONSENT IN THE CRIMINAL LAW 239

here. Assuming that sterilisation might be irreversible, it can

still be forcibly argued that it ought to be regarded as a proper
and lawful operation when done at the request of an adult patient.
If it is considered from the point of view of the patient, then it is
of course true that he may later bitterly regret what he has had
done, but life continually presents us with opportunities for storing
up regret. The question is whether protecting him from the possi-
bility of a future unhelpful change of mind outbalances depriving
him of liberty of action in this respect and it is submitted that
it does not. If the matter is considered from the point of view
of the community, then it is doubtful whether present population
trends in England necessitate the intervention of the criminal
law to compel fertility by threat of sanction. The great majority
of people will probably acknowledge that they may at some time
want to have a child and will therefore not contemplate such an
operation. If, contrary to this expectation, the public knowledge
of the legality of a sterilisation operation produced a host of candi-
dates for the knife then the state of the law might have to be
reviewed. At the moment it is submitted that public policy
would be best expressed by acknowledging the legality of the
operation and perhaps surrounding it by mild discouragements
such as a complicated procedure for the expression of consent and
the exclusion of the operation from the facilities of the National
Health Service.
The views expressed by Denning L.J. were noted by the other
members of the Court of Appeal (Sir Raymond Evershed M.R. and
Hodson L.J.) who said that they wished to dissociate themselves
from them. These other members of the court felt that the general
question of the legality of a sterilisation operation was irrelevant
to the decision and they expressed no opinion on it.14
There is no English authority on the legality of cosmetic
operations, which might in special circumstances present similar
problems.
FRANCE

The French theoretical approach to the question of consent as a

defence in the criminal law is, characteristically, more openly and
consistently thought out than is the case in England and the
United States. Where the nature of the offence supposes an
invasion of the person or property of another against the will of
the other, then of course consent will be a defence, as in rape or
theft, though it will be more correct to speak here of an inability
in the prosecution to show an essential element of liability posited
14 [1954] 1 W.L.R. at p. 1175; [1954] 3 All E.R. at pp. 63, 64. The question
of sterilisation operations will not be pursued further here as it has been
fully discussed in Williams, Sanctity of Life and the Criminal Law (1957),
pp. 74-111; Bartholomew, " Legal Implications of Voluntary Sterilisation
Operations " (1959) 2 Melbourne Univ.L.R. 77; Williams, " Consent and
Public Policy " [1962] Crim.L.R. 154.
 THE MODERN LAW REVIEW VOL. 26

by the definition of the crime, namely that the act should be

done without the agreement of the victim. But in all other cases
of homicide or battery, the French resolutely maintain that consent
per se can never be a defence. Donnedieu de Vabres writes:
" D'un point de vue rationnel, l'id~e que le consentement
de la victime abolit la responsabilit6 p~nale serait vraie si la
rdpresSion n'intervenait que pour la defense d'int&r~ts privds.
Mais il n'en est rien. L'intervention repressive a pour but
essentiel d'assurer le maintien de l'ordre public, non de donner
satisfaction t des particuliers." 15
This being so, the French are driven to look for other
rationalisations of those cases in which consensual inflictions of
harm are clearly not penal, as with surgical operations and injuries
inflicted in lawful sports. We may perhaps see in this French
refusal to admit that private consent can ever in itself be a defence
to crime, the jealousy of an always struggling central executive
for its prerogatives. To admit the individual's ability to render an
otherwise criminal act non-criminal by an act of his will is alien
to the French approach. But we shall see that this rephrasing
of the problem cannot escape the same policy debates and choices
that confront the Anglo-American systems. We may now turn
to some special discussions of the problem in the French decisions
and texts.
Killing at the Request of the Victim
Suicide is not a crime in France. From this it follows that to assist
a suicide in his efforts to put an end to his life is not a criminal act,
for there is no principal crime to which the participation can adhere.
The French apply this rule strictly, so that, in sharp contrast to
England, there is no crime of aiding and abetting a suicide or
of counselling or procuring a suicide.
This rule on suicide makes it possible to argue that French law
recognises a man's right to terminate his life, with the implicit
conclusion that to kill a person with his consent, or at any rate at
his request, would not be a culpable homicide. This conclusion
however has been successfully resisted by the French courts who
in fact refuse to recognise consent in homicide as being of any
relevance, even for purposes of mitigation. This rule was firmly
laid down by the criminal chamber of the Cour de Cassation in
1838 and has been unchallenged since. 16
The position is commonly defended by French jurists by con-
tending that the absence of punishment for suicide or attempted
suicide does not indicate the recognition of a man's right to termi-
nate his own life. It merely results from the incapacity of criminal
15 Traitg de Droit Criminel (1947), p. 242.
16 Ch. crim., June 23, 1838, S. 1838, I, 626. See Stephen, History of the
Criminal Law, Vol. 3, pp. 105-106; Bouzat, Traitd de Droit Pdnal (1951),
pp. 229-230. The rule is the same in Belgium, see [1932] Revue Belge de
Droit Pdnal 774.
MAY 1963 TWO VIEWS ON CONSENT IN THE CRIMINAL LAW 241

legislation to deter the suicide and the usual futility of applying

punitive sanctions to the deceased's estate or physical sanctions
to the attempted suicide who survives. Since, therefore, the lack
of penalties for suicide should not be understood as establishing
a right to terminate one's own life, then the punishment of one
who kills another at his request or with his consent is quite
defensible.
We may admit that this argument establishes a rational struc-
ture, but it is impossible to deny that in application the distinction
between the one who takes another's life at his request and the
one who assists him to make away with himself is too flimsy to
support the liability for murder. To provide a very sick person
with poison so that he may kill himself is non-culpable; to inject
the poison into him at his request, when he is perhaps too feeble
to do it himself, will be murder. In the common case of the
survivor of a suicide pact, it appears that under French law such
a survivor will be liable for murder if it was he who, under the
terms of the pact, pulled the trigger, but will be quite exempt
from liability if the perpetrator of the actual act of killing was
his intended co-suicide. A French commentator says that such
anomalies are in fact softened by the " indulgence constante du
jury," 17 but this is no justification for an unfair rule. To a lesser
extent, the Suicide Act of 1961 introduces the same tenuous
distinctions into English law.
To make a brief comparative excursus on this point, we may
note that a great many countries now provide substantial mitiga-
tion of penalty for one who kills at the request of the victim.
Such provisions are to be found in the Netherlands Penal Code
(Articles 293 and 294), the Italian Penal Code (Article 579), the
Spanish (Article 409), the Swiss (Article 114), the West German
(section 216) and the Polish Code (Article 227). The Uruguayan
Penal Code (Article 87) allows the judge to relieve the defendant
completely of liability if the killing was done at the request of the
victim and from motives of pity. And England, while refusing
to admit any general doctrine of killing with consent, has recently
provided in the Homicide Act of 1957 that the survivor of a
suicide pact shall no longer be guilty of murder but only of
manslaughter.
The debate on euthanasia and suicide pacts is one of
endless controversy which it is not the province of this article
to discuss, but it is clear that in this area French criminal law
lags behind the typical contemporary development.

Surgical Operations
The French have perceived the marginal difficulties into which one
may be led by defending the legality of surgical operations primarily

17 Donnedieu de Vabres, op. cit., p. 243.

 THE MODERN LAW REVIEW VOL. 26

from the aspect of the patient's consent. Holding strongly to their

central view that the consent of the individual can never justify
a substantial battery, they refuse to regard the patient's consent as
the real and primary ground of legality. Constant, the Belgian
jurist of the criminal law, strongly attacks the consent theory
here.18 If consent is the true ground of legality, he asks, how
can we explain the case of the patient who is unconscious, and
how do we explain the illegality of an operation performed by an
unqualified person, even though the patient consents? It is,
say the French jurists, in the authorisation of the law that we shall
find the true ground of legality of surgical operations. This
authorisation of the law is often located in the granting of the
surgeon's medical diploma which allows and obliges him to do
all in his power to cure sickness. 19 Some support too may be
found in Article 327 of the Penal Code:
" Il n'y a ni crime ni ddlit, lorsque l'homicide, les blessures
et les coups 9taient ordonngs par la loi et commandds par
llautoritM l6gitime."

To this it can be objected that Article 327 speaks of

" ordonnds " or " commandds " and was therefore intended to
cover such cases as executions and the prevention of the escape
of criminals and cannot be understood to cover acts which are
permitted but not commanded such as surgical operations. Con-
stant prefers to see the true ground
20
of legality in the necessity for
the performance of the operation.
These French discussions are mainly of interest in showing
that for the French, however variously they may phrase it, the
true ground of legality here must be found in some general legisla-
tive pronouncement of justification and not in the individual's
consent. Of course they will then go on to say that one of the
conditions for the application of the authorisation is that the
patient should have given his consent, where he is able to do so,
but this consent is seen as no more than a stipulation of the
legislature as a condition precedent and not as in itself a circum-
stance creating excuse.
On the question of particular marginal operations, it would
seem that the French have exercised a tight control. The opera-
tion for sterilisation is a criminal offence in France, unless it can
be clearly shown that it was vitally necessary to preserve the
patient's life or health. In the criminal chamber of the Cour de
Cassation in 1938, the conviction of a surgeon was held to be
proper under Article 309 of the Penal Code (the general article
creating offences of battery and wounding) for performing a
vasectomy. 21 Cosmetic operations are also scrutinised closely, and
18 Manuel de Droit Penal (1959), Vol. 1, p. 570.
19 Bouzat, op. cit., p. 232.
20 Op. cit., p. 573.
21 Ch. crim., July 1, 1937, Rec. Sirey 1938, I, 193; Bouzat, op. cit., p. 233.
MAY 1963 TWO VIEWS ON CONSENT IN THE CRIMINAL LAW 243

if harm results to the

22
patient the operation may well be held to
have been criminal.
The attitude to sterilisation again seems somewhat reactionary
in view of contemporary trends, but is perhaps explicable by a
national policy of concern for the birth rate.

Sports
Here again the usual Anglo-American position will be to base the
legality of any batteries on the consent of the participants. This
position is not unknown in French authors, but is on the whole
rejected. Constant is very emphatic on the point: " Cette opinion,
qui est en gdn~ral adoptge par la doctrine am6ricano-anglaise, est
absolument incompatible avec les principes ]ondamentaux de notre
droit pnal." 23

French courts have made their contribution to the theory of

this field. In 1912 the court of Douai was asked to decide the
validity of a contract for the promotion of a boxing match, the
defendant having raised the argument that such a match was
illegal as falling under the provisions of the Penal Code prohibiting
woundings and batteries. The court pronounced in favour of the
contract, on the ground that the prohibitions of the Code applied
to batteries performed with malevolence (haine), whereas a boxing
match was not conducted in such a spirit, being a mere athletic
contest, in the case of amateurs, or an exercise of a trade, in the
case of professionals. 24 This is very reminiscent of the English
judgments, in such cases as Coney, 2 5 which defended boxing con-
tests on the ground that they promoted health and fitness and were
not contests in which one combatant intended to subdue the other
by violent blows. But the French court's opinion seems just
as unreal as the English one in the same connection. For it can
scarcely be thought that sentiments of malevolence and violence
do not arise in the course of a boxing match.
French commentators, perceiving this obvious point, generally
disapprove of the theory advanced by the Douai court and rest the
legality of sporting contests rather on the general authorisation
of the law. Some writers point here to Articles 1965 and 1966
of the Civil Code which, after saying that no action at law shall
be possible for a gaming debt, distinguish sporting events from
games of chance and implicitly refer to the legal character of the
former.2 6 Garraud finds the true ground for the legality of
certain sporting events in their tolerance by custom, 27 but Constant
22 Donnedieu de Vabres, op. cit., pp. 246-247; Bouzat, op. cit., p. 233; Cour
de Cassation, ch. civ., November 29, 1920, Rec. Sirey 1921, I, 119.
23 Op. cit., p. 609.
24 December 3, 1912, S. 1914, 2, 217.
25 (1882) 8 Q.B.D. 534.
26 Donnedieu de Vabres, op. cit., p. 245.
27 Garraud, " Les Sports et leDroit Pdnal " (1924) Rev. Internationale de droit
pdnal, 212.
 THE MODERN LAW REVIEW VOL. 26

objects, surely rightly, that custom can never override the pro-
visions of the criminal law. 28 It would seem that Articles 1965 and
1966 of the Civil Code provide only slight support for the theory
of express authorisation and, indeed, in the last resort French
jurists of the criminal law have to fall back here on vague general-
ities about the implied authorisation of sporting events which may
be gathered from their beneficial effect on the community and from
the fact that the state actively encourages them.
It is surprising to find eminent jurists making such heavy
weather over the question of why tackling a man at football is
not a criminal battery. The answer is surely the simple one that
it has never been declared to be so by legislature or court. The
matter is neatly taken care of by the common law practice of
specifying that the actus reus of the offence must be done
" unlawfully," so reserving a discretionary power in the court
to declare some varieties of it not illegal. If we are to ask why
legislatures and courts have not chosen to regard the playing of
certain sports as unlawful and injuries incurred thereby as batteries,
the answers will of course be the stock ones-that the participants
consent to the contest in a form controlled by rules, that the rules
are such that the risk of serious injury is slight and is counter-
balanced and outweighed by the gratifying aspects of diversion,
recreation and promotion of health. There is room for controversy
with respect to particular sports such as professional boxing,
which many countries have found to be harmful and have accord-
ingly declared illegal. The Belgian jurist, Constant, reports that
in 1913 the Belgian Minister of Justice invited the parquets to
institute prosecutions against those who took part in boxing
matches, but that the order fell into disuse when courts would
29
not convict.
French law reproduces the usual common law demands that the
game be played according to the rules if it is to retain its licit
character. Any injury inflicted by a breach of the rules in a
dangerous manner, or even by violent and rash conduct within the
framework of the rules, will be criminal. To such injuries the
fellow participants in the game cannot be taken to have consented,
and, if they had expressly so consented, it would be against public
policy to allow their consent to take effect.2 0

Sexual Ofences
The relevance of consent of the victim in sexual offences is given
peculiar prominence in the French jurisdiction by the designation
of adultery by a wife as a criminal offence. The male accomplice

28 Op. cit., p. 609.

29 Ibid. p. 611 n.
so Donnedieu de Vabres, op. cit., p. 245. On the relevance of adherence to
the rules in English law, see R. v. Bradshaw (1878) 14 Cox C.C. 82 and
R. v. Moore (1898) 14 T.L.R. 229.
MAY 1963 TWO VIEWS ON CONSENT IN THE CRIMINAL LAW 245

is also punishable. 3 ' Adultery may be envisaged as a crime the

victim of which is the other spouse and French law is ambivalent
in its recognition of the relevance of the consent of the other spouse.
On the one hand the adulterous wife can only be prosecuted if a
complaint is lodged by her husband and, having been convicted,
the husband retains a curious power of remitting the wife's
sentence by agreeing to take her back. On the other hand it
seems that the husband's consent to the adultery itself is no2
bar to his lodging a complaint which must then be proceeded with.8
This French continuation of the criminal prohibition on a wife's
adultery is of course a curious survival of ecclesiastical prohibitions
in a modern penal code. Its long survival in France is perhaps
also explicable to some extent by the central importance tradi-
tionally attached in French society to the institution of the family.
Its very exaggeration spotlights the central controversy here.
On the one hand we have the view that the sexual disposition
of the body is a matter for the private determination of the indi-
vidual, so long as he does not use force or fraud to overcome
the reluctance of another, so long as no advantage is taken of
those who because of some disability are not capable of full and
free consent, and so long as no public indecency is involved.
On the other hand we have the view that a disapproved sexual
practice somehow endangers the fabric of society, even when
performed privately between consenting individuals, and is there-
fore the proper subject of a criminal sanction. This latter view may
have different springs. It may come from a religious or moral
view of the unnaturalness of certain acts, which are therefore
regarded as so offensive an insult to the divine or to nature or
to public opinion that the law cannot stand by inactive. Again,
it may come from a more utilitarian belief that certain sexual
practices are likely to endanger the safety of society, perhaps
by breaking the family circle, discouraging the procreation of
children or other appropriately masculine or feminine habits.
Even if one can be brought to accept the latter view, there is
still left the question of whether a criminal prohibition has any
measurable deterrent effect in these cases and whether such
deterrent effect, if any, is not outweighed by unhealthy side-effects
such as the encouragement of blackmail. English law has a com-
paratively strict policy of the enforcement of sexual mores, though
not nearly as strict as some United States jurisdictions. 3s France,
31 Arts. 336-339, Code P6nal.
32 Trib. corr. Seine, January 8, 1920, Dalloz Pdriodique 1921, 2, 16; Trib.
corr. Besangon, July 24, 1889, Dalloz Pdriodique 1890, 2, 50.
83 In the United States adultery and fornication are crimes in most jurisdictions
and the crime of sodomy has been extended in some states to cover a range
of consensual practices, even when done between husband and wife. (See.
e.g., Arizona Rev.Stats. §§ 13-651. This is by express statutory provision.)
Statutes have been so interpreted in Idaho, Georgia, Oklahoma, South Dakota
and Michigan. (See Perkins, Criminal Law (1957), p. 333, note 17.) But
see now State v. Dietz, 135 Mont. 496, 343 P. 2d 539 (1959), dissenting
 THE MODERN LAW REVIEW VOL. 26

with this curious exception of adultery, is generally less inclined

to enforce sexual morality through penal law.34
In a much simpler and briefer sexual penal code than that
which obtains in Britain, French law contains (with the exception
of adultery) no prohibitions on consensual sexual practices between
adults when done in private. Article 330 of the Penal Code
prohibits " outrage public t la pudeur " but the essential element
of this offence is indecency in public and it is therefore natural
that consent should be no defence. Under Article 331 non-violent
invasions of the sexual integrity of minors under the age of fifteen
are punishable and this is applied even where the minor is over
the age of fifteen where the act is committed by an ascendant
relative. This article also provides a lesser penalty for the com-
mission of indecent homosexual acts with anyone under the age
of twenty-one. Consenting acts of homosexuality between adults
when done in private are not punishable in France. 5
With respect to consensual sado-masochistic practices there is
a brief discussion in the commentary of Bouzat. s He gives the
example of a rich sadist who might buy the consent of a poor
victim to a perverted practice, and suggests that such a consent
would be no defence. But the passage occurs in a discussion of
" blessures " and it seems only to be aiming at the same kind
of test as the English court had in mind in Donovan's case.

WEST GERMANY

France, in spite of its criminal code, is like the common law

countries in making no general legislative pronouncement on the
relevance of consent as a defence. Western Germany, on the other
hand, does in its Penal Code take express notice of the significance
of consent in cases of physical injury.1 Section 226a runs: " One
who does physical injury to another with the other's consent does

judgment of Mr. Justice Adair. Some states provide, as in France, that

no prosecution for adultery may be brought except on complaint by the
injured spouse, e.g., Iowa, Oregon, Minnesota, Michigan.
34 This is not the place to enter on a general discussion of the relationship
between criminal law and sexual morality. For such discussions see Report
of the Committee on Homosexual Offences and Prostitution (Wolfenden
Report) (1957) Cmnd. 247, pp. 9-10; Devlin, The Enforcement of Morals
(1959): Hart, " Immorality and Treason," The Listener, July 30, 1959, pp.
162-163; Wollheim, " Crime. Sin and Mr. Justice Devlin," Encounter,
November 1959, pp. 34-40; Rostow, " The Enforcement of Morals " [1960]
C.L.J. 174; Hughes, " Morals and the Criminal Law " (1962) 71 Yale L.J.
662; Williams, " Consent and Public Policy " [1962] Crim.L.R. 74 and 154.
35 For a summary of the law on homosexual acts in other European countries
see App. 3 to the Report of the Committee on Homosexual Offences and
Prostitution, 1957.
36 Op. cit., at pp. 227-228. For English law here, see Hughes, " Consent in
Sexual Offences " (1962) 25 M.L.R. 672.
37 This brief account of West German law is taken from Schbnke-Schrdder,
Strafgesetzbuch Kommentar (1959) and from Vol. 2, Foreign Office Manual
of German Law (1952).
MAY 1963 TWO VIEWS ON CONSENT IN THE CRIMINAL LAW 247

not act criminally provided that the act, in spite of such consent,
does not offend against general morality." (The German phrase
is gegen die guten Sitten, of which perhaps the best rendering is
contra bonos mores.) It appears that in applying section 226a
the courts look to the objective qualities of the act done and
not to the motivations of the actor. A morally excellent reason
for giving consent on the part of the victim will not excuse the
act done if it otherwise offends common decency. Thus the better
opinion is that sado-masochistic acts must be judged by their
external appearance and not by the motivations of the participants.
The accused should be acquitted unless a decisive verdict of moral
reprobation can be given. It is thought that sterilisation operations
will be illegal unless they are done for medical, eugenic or pressing
social reasons, a somewhat milder view than that which prevails
in France. Operations of a cosmetic or experimental nature would
also fall to be considered under this section. Students' duelling,
if death or serious harm is not contemplated or likely, will be legal
even though minor injuries may result.
Homicide is not included in the principle of section 226a.
Section 216 provides that a killing, " which the killer was persuaded
to do by the express and serious request of the victim," shall be
an offence of only moderate gravity punishable with imprisonment
for not less than three years. This sets up a more severe criterion
than simple consent. A maiming or serious injury would clearly
contravene the limiting conditions of section 226a.
As with French law, the consent of one spouse to the adultery
of the other does not eliminate the offence of adultery.

CONCLUSION

Does the French approach have any practical consequences that

distinguish it from the Anglo-American one, or is it merely
an empty semantic variation? It may be suggested that there
is one consequence of some importance to be seen. The French
approach allows the marginal cases, such as operations for sterilisa-
tion or cosmetic surgery, to be seen squarely as an issue of public
policy. One must of course in this kind of case always arrive
at public policy in the end. But, taking the Anglo-American
road, one begins with the proposition that the legality lies in
the consent of the patient, and one is then at first hard put to
explain why certain operations to which the patient consents are
illegal, if of course policy dictates that they should be deemed
illegal. To reach this point one must see that the consent of the
victim is only taken to be a defence in those cases where it is
thought that the consent deprives the act of its antisocial character,
i.e., where the consent of the victim carries with it the consent
of the community to the doing of the act in such circumstances.
The French view makes such a process of reasoning unnecessary,
 THE MODERN LAW REVIEW VOL. 26

for they start with the proposition that only authorisation by the
general law can legalise an act that would otherwise be criminal,
and they regard the consent of the victim as nothing more than
a circumstance which in some cases is posited by the general law
as creating excuse. But the circumstances in which this will
be so must always be specified by the legislature, or by the courts
in interpreting the legislature and may be granted or withheld as
policy demands. Now it is obvious that this must in fact be the
position in any modern system and the difference in statement
of doctrine between Anglo-American jurisdictions and France does
not reveal any real difference in the legislative control of the
criminal law. Neither does the French approach necessarily lead
to more rational judgments. But it does focus the issues of policy
and preserves the criminal theorist from that over-concentration
on the one issue of consent which is a weakness of the English
approach to the legality of surgical operations.
GRAHAM HuGans.*

* M..(Cantab.), LL.B.(Wales), LL.M.(New York University), Senior Lecturer in

Law, University College of Wales, Aberystwyth.