Factual Exclusionary Consent
The factual exclusionary consent is a term from German criminal law and describes a situation in which a person’s consent already at the level of the legal elements excludes the fulfillment of an offense. This differs from consent which only plays a role at the unlawfulness stage. The factual exclusionary consent thus already affects the objective elements of a criminal statute and prevents an action from being considered as meeting the legal definition.
Conceptual Distinction
Factual Exclusionary Consent vs. Consent
The distinction between factual exclusionary consent and consent is central. The exclusionary consent relates to the legal characterization of an act, i.e., whether the objective incident fulfills the offense. Consent, on the other hand, becomes relevant during the assessment of unlawfulness and can serve as a justification.
This is illustrated by the example of theft (§ 242 StGB): If the owner voluntarily gives the perpetrator an item to use, the element of “taking away” is missing, as there is no deprivation of possession against the will of the entitled party. Here, the owner has agreed to the transfer of possession; factual exclusionary consent takes effect. In comparison, for bodily injury offenses, consent only becomes relevant during the review of unlawfulness (as justifying consent).
Statutory Requirements
Legal Elements Relevant for Consent
Factual exclusionary consent plays a particular role wherever legal elements such as “against the will of the entitled party,” “without authority,” or “without permission” are part of the statutory description. Consent is relevant, for example, for the following criminal offenses:
- Theft (§ 242 StGB): The element of “taking away” requires the removal of another’s custody against or without the will of the entitled party. If the entitled party consents to the transfer of possession, there is no taking away.
- Trespass (§ 123 StGB): Unauthorized entry into a residence requires that the entitled party does not consent to the entry.
- § 185 StGB (Defamation): In the case of mutually agreed upon ‘insults’ for entertainment, the offense is usually not fulfilled, since there is no defamatory character according to social understanding.
Not every offense allows for factual exclusionary consent. For actions which primarily serve to protect supra-individual legal interests (e.g. public peace), the consent of the directly affected person is not always sufficient.
Requirements and Limits
Expression and Scope of Consent
Factual exclusionary consent can be declared expressly or impliedly, i.e., through conduct that clearly indicates consent. Such declarations must, however, be made before or during the commission of the act and be known to the actor.Example: In theft, the entitled party must know and intend at the time of transfer of possession that the perpetrator is taking the item.
It should also be noted regarding scope that the consent must relate specifically and temporally to the particular act in question.
Mistake and Revocation
Consent which is given under a relevant mistake is legally ineffective. Furthermore, consent that has been given can be revoked at any time up to the completion of the act.
Distinction from Other Justification Mechanisms
Difference to Justifying Consent
Factual exclusionary consent must be strictly separated from justifying consent. Consent is relevant to the legal consequences: although the objective legal definition may be fulfilled, the actor is not acting unlawfully due to the consent of the holder of the legal interest. In contrast, the factual exclusionary consent already prevents all legal elements from being fulfilled.
Not a Case of Justification, but of Non-fulfillment of the Offense
Another criterion for distinction is that with factual exclusionary consent, criminal liability is excluded already at the first level of offense analysis. There is thus no need for further examination, for example regarding unlawfulness or guilt.
Significance in Criminal Law Practice
Factual exclusionary consent serves in criminal law as an important corrective and protective mechanism against disproportionate criminalization of actions to which the directly affected person has expressly or tacitly agreed. Especially in social interactions, this legal principle protects against unnecessary prosecution of consensual conduct.
The distinction and correct subsumption in practice frequently present significant challenges regarding determination of the will of the rights holder and interpretation of implicit declarations. Especially for so-called everyday offenses, careful differentiation is of great importance.
Literature and Further References
- Wessels/Beulke/Satzger, Criminal Law, General Part
- Roxin, Criminal Law, General Part
- Fischer, Criminal Code, Commentary
Summary
Factual exclusionary consent is a central concept in German criminal law that already excludes the assumption of an offense when the affected party consents to a legally relevant act for which their opposing will is presumed by law. Accurate identification and distinction from justification grounds such as consent are essential for the application and interpretation of criminal law regulations.
Frequently Asked Questions
What legal requirements must be met for factual exclusionary consent?
Several requirements must be met for factual exclusionary consent. First, the consent of the rights holder must actually exist and refer to the specific act in question. It must not be mere acquiescence or passive endurance, but a deliberate and informed agreement to the specific action that fulfils the offense. Consent must be given before or at least at the same time as the action; subsequent consent is not sufficient. Additionally, the person giving consent must be capable of understanding the significance of their agreement, for which legal capacity or at least the ability to form judgment is generally required. There are no formal requirements in principle; consent may be given expressly or by conduct, as long as it is clear and unequivocal. Consent must not have been obtained by deception, threat, or coercion, as these cases lack voluntariness.
How does factual exclusionary consent differ from justifying consent?
Factual exclusionary consent acts already at the level of the statutory elements and leads to the objective elements of the offense not being fulfilled at all because the consent of the legal rights holder means the protected legal interest is not violated. Justifying consent, on the other hand, presupposes that the objective elements have been fulfilled, but the act is subsequently justified by the consent. While factual exclusionary consent is typically relevant for offenses against freedom or property (e.g., theft when the owner consents to the taking), justifying consent mainly applies to offenses concerning life, bodily integrity, or sexual self-determination, such as bodily harm in the context of medical treatment. Thus, the legal assessment differs, and both concepts are mutually exclusive.
To which offenses can factual exclusionary consent apply?
Factual exclusionary consent is mainly applied in so-called self-harm or self-endangerment offenses, particularly in offenses against others’ interests that contain statutory elements such as “against the will” or “without consent.” Typical are offenses against property or personal liberty. Examples include theft (§ 242 StGB), damage to property (§ 303 StGB), and trespass (§ 123 StGB); whenever the entitled party consents to the act, the elements of the offense may already be lacking. Consent of the affected party can also be exclusionary in offenses such as coercion (§ 240 StGB) and deprivation of liberty (§ 239 StGB). For offenses against bodily integrity or life (e.g., bodily harm, homicide), however, the justifying consent principally applies, as here, consent does not operate as a factual exclusion.
What form must factual exclusionary consent take?
As a rule, there is no particular form required for factual exclusionary consent. Consent may be given expressly (orally or in writing) or by conduct (impliedly). What matters is that an objective third party can clearly recognize that the entitled person agrees to the specific act. Mere silence or inaction is only sufficient in exceptional cases, such as when, according to social norms or common practice, implied consent may be assumed (e.g., handing over property at a cash register during purchase). If in doubt, consent must be clear and definite to the outside world.
Can factual exclusionary consent be revoked?
Yes, factual exclusionary consent may be revoked at any time until the commission of the act is complete. The revocation, like the original consent, may be expressed or implied. Once the revocation has reached the perpetrator—i.e., after they have become aware of the withdrawal of consent—any further actions lack consent and may thus fulfil the statutory offense. It is important that the revocation becomes apparent to the actor; merely internal withdrawal is not sufficient. If an act is committed after revocation, the legal elements of the offense may again be met.
What special considerations apply regarding capacity and the ability to consent in factual exclusionary consent?
Since factual exclusionary consent acts as an actual expression of will and not as a contractual declaration, full capacity is not strictly required. However, the affected person must be able to recognize the significance and consequences of their consent and act accordingly—that is, a certain natural ability for understanding and judgment (capacity to consent) is necessary. Minors or persons with limited mental capacity can only give valid factual exclusionary consent if they can comprehend the significance and scope of the specific action. Otherwise, their consent is ineffective, and factual exclusionary consent is not applicable. In practice, a careful case-by-case assessment is always necessary.
