Consensual endangerment of another
Consensual endangerment of another is a complex legal concept in German criminal law, particularly relevant in offenses against life, bodily integrity, and personal freedom. It describes situations in which a person knowingly exposes themselves to danger through the conduct of another—and consents to this endangerment. In distinction to consensual self-endangerment and harm to others, the construct becomes particularly significant when examining the responsibility and criminal liability of the actor.
Concept and nature
Consensual endangerment of another exists when the self-determined behavior of the endangered person is a contributing factor to the occurrence of a harmful result, and not solely the perpetrator causing the danger. It is characteristic that the endangered person recognizes the danger and voluntarily consents, with the endangered person typically deciding only about their own risk-taking behavior, rather than the actions of the person causing the harm.
Distinction from consensual self-endangerment
Whereas in consensual self-endangerment the affected person harms themselves and the other plays a subordinate or assisting role, in consensual endangerment of another the endangering conduct of a third party is central, but with the knowledge and will of the endangered. The distinction between the two constructs is practically highly relevant, since the criminal liability of the actor depends significantly on it. The decisive factor is who ‘holds the reins’ of the harmful event: If the victim maintains control, it is generally considered self-harm without criminal liability; if the risk is directed by the endangering party, the rules of harming others apply.
Legal framework
Criminal law significance
Consensual endangerment of another is of central importance in so-called consent offenses, such as bodily harm (§ 223 StGB) or negligence offenses. The consent of the endangered person regularly does not eliminate the unlawfulness of conduct that fulfills an offense, such as in offenses against life (§ 216 StGB – killing on request) and bodily harm with consent (§ 228 StGB); however, it is particularly considered where the risk shifts (for example, in sports such as boxing, motorcycle racing, climbing) as a potential reason for excluding criminal liability.
Requirements for consensual endangerment of another
The following prerequisites are especially relevant for the presence of consensual endangerment of another:
- Voluntariness and seriousness of consent: The consent of the endangered person must be conscious, voluntary, and given without coercion. It must not be influenced by threats or deception.
- Dominance over the act (Tatherrschaft): Control over the harmful event lies at least in part with the endangered individual. Their involvement in the risk event is a contributing factor.
- Knowledge of the risk: The endangered person must recognize the risk and the extent of the danger.
- Relationship between perpetrator and victim: The design of the risk scenario is characterized by cooperation or conscious collaboration between both parties.
Assumption of risk and social adequacy
The assumption of risks, for example in jointly undertaken dangerous activities, is based on the principle of social adequacy and—depending on the scenario—can result in the initiator not being criminally liable. Consensual sporting confrontations (boxing, martial arts) in particular are often regarded as socially adequate and therefore exempt from punishment, provided the rules of the respective sport are adhered to.
Distinctions and legal consequences
Distinction from consensual harm to others
In consensual harm to others—as opposed to consensual endangerment—the active harming conduct of a third party is central. The question here is whether valid consent in terms of §§ 223, 228 StGB exists, with particular attention to the limits set by public morals.
Relevance in negligence offenses
In negligence offenses, the consent of the endangered person can only exclude criminal responsibility if the risk has been individually assumed, thus precluding allocation of responsibility to the endangering party.
Offense-specific particulars
- Offenses of bodily harm: Consent (§§ 223 ff., 228 StGB) and consensual endangerment are subject to intense legal debate particularly in relation to bodily harm and sporting activities.
- Offenses against life: While consent to one’s own killing is explicitly regulated in § 216 StGB (killing on demand), in other situations (such as risky joint activities resulting in death), the question of criminal liability must be determined based on the standard of consensual endangerment of another.
Case law and literature
Courts make precise distinctions between self-endangerment, consensual endangerment of another, and harm to others. In consistent case law, the Federal Court of Justice, for instance, focuses on who holds control over the act and the conscious assumption of risk by the endangered party. Academic literature discusses the limits of the criminal-law acceptability of risk assumption and emphasizes the need for case-by-case, situation-specific assessment.
Practical examples
A classic example of consensual endangerment of another is riding as a passenger in an illegal car race, where the passenger knowingly exposes themselves to danger. Other cases include dangerous sports with knowingly accepted risks or activities like playing with weapons together, where participants voluntarily expose themselves to heightened risk.
Practical significance
Consensual endangerment of another plays a crucial role in sentencing and in the justification of conduct relevant under criminal law, especially in joint risk-taking. Its precise delimitation from other offenses is decisive for the legal evaluation and assessment of the criminal liability of those involved.
This overview explains consensual endangerment of another as an independent legal concept and provides a comprehensive presentation of all key legal aspects concerning its definition, prerequisites, distinctions, as well as typical scenarios and their consequences in German criminal law.
Frequently Asked Questions
When is endangerment of another punishable despite consent?
Even if a person expressly consents to the endangerment of their legal interest by a third party (e.g., in risky leisure activities or medical procedures), such endangerment can still be punishable. German criminal law recognizes consent as a justification—see § 228 StGB (in bodily harm offenses) or § 904 BGB (necessity)—but there is an important limitation where the endangerment contravenes good morals (§ 228 StGB: “…insofar as the act does not violate good morals.”). For example, self-responsible consent to extreme body modification is often legally excluded, as are violence-focused sexual practices with significant risk of injury. Moreover, the law particularly restricts the effectiveness of consent in higher-ranking legal interests (such as life, § 216 StGB) or where the affected person’s freedom is significantly diminished (such as with children, persons with mental disabilities, or under coercion). Courts thus assess individually whether consent was actually given freely and effectively and whether the risks were sufficiently explained in advance.
Is consent to endangerment of another treated equally in every legal system?
No, consent to the endangerment of another is not regulated uniformly across all legal systems. While German criminal law explicitly distinguishes between self- and third-party endangerment as well as their legal limitations, other countries may have different approaches to personal responsibility and public morals. Nevertheless, the general principle in many countries is that, in cases of serious bodily harm or life-threatening situations, consent cannot serve as a legal justification, especially when issues of public order and morality are involved. This is evident, for example, from international codifications such as the European Convention on Human Rights, which serve as guidance for national lawmakers.
What role does capacity to contract play in consenting to endangerment of another?
Capacity to contract is a central requirement for the legal validity of any consent. According to §§ 104 ff. BGB, persons with limited or no capacity to contract (including children under the age of seven and those with certain mental impairments) cannot give legally effective consent. This is particularly relevant in cases involving medical procedures, participation in dangerous sports, and other scenarios involving significant self- or third-party endangerment risks. In such cases, consent is regularly required from a legal representative or guardian, and even then, the child’s welfare and the prohibition of excessiveness must be observed.
How is liability regulated in the area of consensual endangerment of another?
In cases of consensual endangerment of another, tort liability claims (§§ 823 ff. BGB) can be excluded if valid and full consent has been given. However, civil liability remains if consent is invalid, for example, due to concealed risks, fraudulent misrepresentation, threats, or error, or if the conduct of the endangering party crosses into immorality (§ 138 BGB). In instances of intent or gross negligence, exemption from liability may be excluded even where initial consent existed.
Are there special considerations in medical treatments?
In medical procedures, the patient’s consent is a crucial prerequisite and a justification for interventions in bodily integrity. Physicians must provide information on all material risks, chances of success, and alternatives (§ 630e BGB). Consent is only effective if based on comprehensive information and given voluntarily. Situations are especially problematic where, for example, cosmetic or non-essential procedures are performed, or where consent relates to particularly severe or irreversible interventions (e.g., amputations, sterilization, gender reassignment). In such cases, courts scrutinize particularly closely whether there is any circumvention of statutory protective mechanisms (“prohibition of circumvention”).
How does the state act when there is potential consent to life-endangering actions or suicide?
In cases of consent to actions that threaten life or may lead to death, the state imposes particularly strict limits. Under § 216 StGB, killing on request (active euthanasia) is punishable, meaning the victim’s consent cannot absolve the perpetrator. The situation is different with self-determined suicide where no other party is involved. Assistance by third parties is currently debated in Germany under § 217 StGB (temporarily declared void). Therefore, a criminal law privilege for consenting to life-endangering acts is fundamentally excluded.
Are there exceptions or specifically regulated cases of consensual endangerment of another in everyday life?
Yes, lawmakers and courts recognize permissible consent to endangerment of another in certain contexts, such as sports competitions (e.g., boxing, martial arts), certain high-risk professions (e.g., fire service, emergency services), or artistic or cultural performances (e.g., stunts, performance art). In these cases, comprehensive risk disclosure and, if necessary, official permission or supervision are prerequisites. Any damages are only considered covered by the consent if they remain within the expressly accepted risk framework; otherwise, liability applies.
