Vera Bergelson (Rutgers, The State University of New Jersey – School of Law) has posted Consent to Harm (Pace Law Review, Forthcoming) on SSRN. Here is the abstract:
This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).
Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.
One element of the proposed defense is essential to both its complete and partial forms – that consent of the victim be rational and voluntary. In addition, for complete justification, the perpetrator’s reasons for a consensual injurious act should be subjectively benevolent and the act must produce an overall positive balance of harms and evils, including harm to the victim’s welfare interests and dignity. If these requirements are not met, the defense should be only partial.