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Unpublished Paper
Consent To Harm
Rutgers Law School (Newark) Faculty Papers
  • Vera Bergelson, Rutgers (Newark) School of Law
Comments
Pace Law Review (forthcoming); THE ETHICS OF CONSENT: THEORY AND PRACTICE (Alan Wertheimer & Franklin G. Miller eds.; Oxford University Press 2009) (forthcoming).
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 ¨C 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.

Date of this Version
7-18-2008
Citation Information
Vera Bergelson. "Consent To Harm" (2008)
Available at: http://works.bepress.com/vera_bergelson/8/