»Consent as a Negative Element of Criminal Offence«

In German criminal law, the consent of the victim can either be relevant as an element hindering the completion of the actus reus of the crime (»tatbestandsausschließendes Einverständnis«) or as a justificatory defense (»rechtfertigende Einwilligung«). However, this differentiation is neither dogmatically sound nor practically helpful. A unified theory of consent, based on a theory of wrongdoing which takes account of the interpersonal relations between offender and victim, should thus be established. Special attention has to be paid to the legal treatment of deficits in decision-making.