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My friend and I had an argument about the subject. He argued that in some circumstances it should be legal to consent to be killed (e.g. if the dominant kills the submissive during the BDSM session and both are OK with that).

I found that idea rather stupid because, in my opinion, it would make society less safe to live in. But I wasn't able to win the argument, because I didn't have enough information about the topic, that's why I am trying to figure it out now.

As far as I understood, in most countries (probably all of them, but I am not sure) it is illegal to kill a person no matter if they consent to it or not. What I want to understand is why they can't consent. What is the reasoning for lawmakers to design the law this way and not another?

I tried to Google the question, but for the most part, sources just state the fact that it's illegal, and not why it is illegal. And the ones that do explain the reasoning explain it in the context of euthanasia, and it's not what I particularly care about (in the context of this question of course).

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    You can consent to be killed in some jurisdictions. We call it euthanasia. government.nl/topics/euthanasia/…
    – user43134
    Commented May 3, 2023 at 8:49
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    The answer to "why" is because the people that made the laws wanted it to be this way. There is no force of nature that shaped our laws. It's all man made definitions. In your case, my guess would be "because Christianity heavily influenced the people that made these laws".
    – nvoigt
    Commented May 3, 2023 at 9:55
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    Technically this is on-topic, but was also posted (and answered) on Philosophy: Why I cannot consent to be killed? Commented May 3, 2023 at 22:43
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    Is killing really a specific thing that is legally unusual? I think there is no generally applicable principle that you can consent to a crime to make it it okay. For some specific crimes lack-of-consent is a necessary element, so the same physical act can be criminal or not depending on the victim's consent. But for that to apply the criminal law has to be specifically written to say that. Murder/manslaughter/etc simply aren't codified that way, but there probably doesn't have to be a very strong reason for that if nobody writing the laws considered a consent provision.
    – Ben
    Commented May 4, 2023 at 5:47
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    @Ben Exactly. It's not that unusual to have laws that make an activity illegal even if all directly involved parties consent. Prostitution in many jurisdictions comes to mind.
    – xLeitix
    Commented May 4, 2023 at 10:52

10 Answers 10

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There are situations where a person can not give consent, despite being asked by someone to give consent. Consenting to be killed is often defaulted to being one of these situations.

On top of what @JohnDallman mentioned, there would be difficulties confirming that consent was, in fact, affirmatively given - and not, for example, given coercively under duress. If, for example, you had video evidence of consent, you might have the person who gave consent confirm that the person behind the camera didn't have a weapon and intimidated the person into the statement of consent, or a threat wasn't being made before the recorded timing of the consent being played, etc.

In a similar matter, there are situations where someone could try and give non-coerced consent, but be physically incapable of giving consent. Probably the most obvious situation where this comes up is the concept of an Age of Consent; this usually applies to consent to sexual activity, but the rule essentially says any consent by a person below that age is considered invalid, regardless of how much documentation you have of them asserting consent. But beyond that, for example, if someone is incapacitated with alcohol (Or with drinks that are unexpectedly spiked) - any consent would be considered invalid, even if the person is above the Age of Consent. These are barriers that prevent any consent being gathered from being actually valid.

As a result, generally speaking, consenting to be killed is usually considered by default to be in these given categories; you'd have to prove that you weren't coerced into the consent (Which you can't do when you're dead), and if that could be, you can't prove that the person who was killed was of sound mind and wasn't incapacitated at the time of giving consent.

The part about presuming the lack of valid consent is why, even in jurisdictions with euthanasia, there's concerns about the final degree of consent when asking for the procedure, leading to very specific rules about having to have final consent explicitly waivered (In a way that can still be waived at a later time by demonstration of refusal or resistance) while they're considered to still have "Decision-making capacity" well before it is granted, but are expected to, or fear, losing said capacity before the procedure is performed, and it has been assessed by specialists in the reason for requesting it, and approved before the waiver is asked for, if the date of the procedure is beyond that.

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    This is the right answer. Just one point I would add is that the attempt is also self-defeating. Consenting to something like this without a very good reason (e.g. terminal illness), would in basically any jurisdiction be seen as a clear sign of the person not being of a sound mind and thus not being able to give proper consent in the first place.
    – mlk
    Commented May 4, 2023 at 9:04
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    I'm surprised that the word "statutory" is nowhere in your answer, since what you describe regarding sex with a minor is statutory rape: rape because we legislators say it is.
    – RonJohn
    Commented May 4, 2023 at 16:58
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    "If, for example, you had video evidence of consent, you might have the person who gave consent confirm that the person behind the camera didn't have a weapon and intimidated the person into the statement of consent" - but they might have a weapon and tell you to say they don't. AFAIK euthanasia generally requires consultation with multiple licensed doctors. Commented May 4, 2023 at 18:18
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    @JanusBahsJacquet: That's a fair point - I'm not 100% sure of the other cases which apply to the same legal rule, but I do know that it's common for contracts to not be bindable to a minor - any minor that has signed a contract is allowed to void the contract at any time as a result. Similarly, liability waivers require parental or guardian signature - no amount of the minor's signature will remove that requirement in a lot of jurisdictions. Not quite the same barrier as I recall in most places, but it's a similar concept. Commented May 5, 2023 at 1:23
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    @AlexanderThe1st there's the commonly understood (or even scientific) definition of a word, and then there's the statutory definition of a word. For example, everyone knows that bees are obviously not fish. But, California Fish & Game Code § 45 defines "fish" as "a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals". Thus, in California bees are statutory fish. So are frogs.
    – RonJohn
    Commented May 5, 2023 at 4:38
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One serious problem with consenting to be killed is that you can't be asked about it afterwards. Allowing killing-with-consent enables a new way of getting away with murder: faking the documentation that shows consent.

In jurisdictions where euthanasia is allowed, the organisations that carry it out seem to be specialists, and presumably take care to avoid coercion or fakery.

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    Where euthanasia is allowed, it's generally highly regulated, limited to extreme circumstances, and requires careful documentation of the reasons and consent.
    – Barmar
    Commented May 3, 2023 at 23:54
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    sadly sometimes with euthanasia coercion IS tried to get patients to agree with it. It's illegal but it happens. I know this from personal experience as it was tried on my mother by the hospital she was receiving cancer treatment from when they announced her to be terminal. When researching the specialist "end of life counselor" she was scheduled to have an appointment with (unasked for by her or us, the hospital had scheduled it without asking) we found out this person had written books and spoken at seminars about how to coerce patients into agreeing with euthanasia...
    – jwenting
    Commented May 4, 2023 at 13:01
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    This is a good point, it's a rather final act, to be killed would limit your options to appeal and verify that you did actually consent and were of sound mind to do so... However, similar to the Catch 22 paradox, one of sound mind would not want to be killed and so by definition consenting to this is the evidence that you are not of sound mind to provide such consent in the first place! Commented May 5, 2023 at 7:00
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French case law created the notion of inalienability of the human body, meaning you are not allowed to contract your body.

From this, the courts deduced that:

  • Selling body parts (including blood) is not allowed
  • Selling usage of your body (as in surrogate preganancy) is not allowed
  • Agreeing to having harm done to you, outside of the regulations prescribed by a recognized sports federation is not allowed.

https://fr.wikipedia.org/wiki/Indisponibilit%C3%A9_du_corps_humain

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    Somewhat off-topic, but does that mean that BDSM (regular pain inflicting BDSM, not the hypothetical lethal variant from the question) is illegal in France?
    – Nzall
    Commented May 4, 2023 at 14:37
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    @Nzall That is correct. There is fairly recent case law about that, in the context of a sex movie, stating that "The inherent violence of a sadomasochist film cannot be legitimated by the consent of Marie-Laurence X., and cannot exonerate François X. of prosecution". legifrance.gouv.fr/juri/id/JURITEXT000021650493https://…
    – Maxime
    Commented May 4, 2023 at 14:53
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    @Nzall "harm" in the spirit of this law is closer to maiming than the type of pain involved in BDSM. It means that a kind of BDSM where you would get disfigured or where you would have fingers amputated would indeed be illegal, even with all the consent you could give. Commented May 4, 2023 at 18:34
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    If selling blood is included, then presumably you’re also not allowed to be paid for sperm donations (a quick Google search appears to confirm this). The third point would surely have to incorporate more than just sports federations, though – otherwise a patient wouldn’t be able to consent to necessary medical treatment like amputations, for instance (unquestionably harm, though intended to prevent a bigger harm). @RonJohn The URL had been accidentally doubled. The correct address is just legifrance.gouv.fr/juri/id/JURITEXT000021650493. Commented May 5, 2023 at 1:21
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    That's the point. Some rights are considered inalienable. Same for selling oneself into slavery - such acts are ineffective by law. Commented May 5, 2023 at 6:54
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Because we've always done it that way

You can come up with countless rationalizations for why the rules are the way they are, however at the end of the day the main reason is status quo bias. Abrahamic religions had a strong prohibition on suicide, which translated into people being unable to consent to being killed, which eventually translated into our modern laws and criminal codes. There's no real, logical case for why this should be the case, other than inertia and the question being outside the political Overton window.

You could've asked a similar question 100 years ago - "why should gay marriage be illegal?". And similarly, there were thousands of legal scholars, philosophers and politicians explaining in excruciating detail why it's important to ensure that marriage is restricted to heterosexuals, however all of these explanations suddenly became moot when the Overton window has shifted in favor of gay marriage. In reality, there was never a real problem with gay marriage, other than it being prohibited by the Bible and thus considered inappropriate by "serious" people at the time.

Within the next hundred years euthanasia will likely become legal in all developed nations and other forms of murder consent might become legal as well. Whatever rationalizations we come up with today will be quickly forgotten and other rationalizations will be used instead.

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    Probably not in the authoritarian ones though. Because they don't allow people to run over the border to escape, either. They need slaves, basically. Commented May 4, 2023 at 17:24
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    @Fizz, modern authoritarian regimes generally don't care. Cf. Venezuela with a quarter of its population out. "Proper" authoritarian regimes are only concerned with keeping their power, and if today gay marriage helps it, so be it. It is totalitarian regimes that like (and able) to impose a certain ideology.
    – Zeus
    Commented May 5, 2023 at 1:01
  • @Zeus afaik the last nation that actively tries to prevent emigration is North Korea at this point. Dictatorships now understand that there’s no need to keep people locked up. Commented May 5, 2023 at 19:13
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Consenting to be killed is a form of suicide, and in most Western societies suicide is considered either a mortal sin or a sign of mental illness. In either case, Western societies believe they have the right to intercede on the grounds that (in the first case) one should not be allowed to irredeemably doom oneself, or (in the second case) one should not be allowed to act against one's own interests because of a dysfunction.

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    most Western societies are secular, and therefore have no notion of "sin" (en.wikipedia.org/wiki/Secular_state#/media/…)
    – njzk2
    Commented May 6, 2023 at 10:44
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    @njzk2: Errr... Most Western societies are secular now, in the limited sense that they have implemented secular governance. But it's wrong to think that a thousand-plus years of Christian hegemony has left no mark, and absurd to suggest there is no notion of 'sin'. Much of modern secular law is derived from Christian doctrine and biblical (Mosaic) law, because those were considered foundational up through the 18th (and in some cases the 20th) century. Commented May 6, 2023 at 13:59
  • How does a secular law convey the notion of "irredeemably doom oneself"?
    – njzk2
    Commented May 7, 2023 at 19:10
  • @njzk2: It doesn't. Please reread what I wrote. Commented May 7, 2023 at 19:49
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In Germany, you can consent to being killed and it actually makes a difference. Killing a person with that person's consent is still illegal, but with a much lower sentence. Low enough to result in a suspended sentence in most cases.

The typical scenarios for this involve people who are seriously ill. However, in your scenario, there is a high probability that the judge would assume that the person was killed for (the killer's) sexual pleasure, which would lead to a conviction for murder. As e.g. in the infamous Rothenburg cannibal case.

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Because it's not about THEIR life

We don't confine murders because they've killed someone. This person is dead anyway and no punishment will turn them back to life. We don't do this either to give their relatives a satisfaction: it would be vendetta, not justice.

The real reason is: we don't want murders around us. Killing a human is breaking a very strong tabu, someone who broke that tabu is much more likely to do that again. For that reason, hangmen in middle ages were not allowed to live among other citizens (visit Hangman's Bridge once you're in Nuremberg). When people hear about some brutal murder, the more they express their indignation, the more they think: It could be me!

No matter if someone agreed to be killed or not, if someone managed to override tabu around killing, we consider this person dangerous and want to isolate them.

Another culprit: people agreeing to be killed or committing suicide are often manipulated to do that by individuals with dark triade symptoms. Those are especially dangerous. There were even SMS chains leading to suicide of teenagers!

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  • Shouldn't that be spelled "taboo"? (I see it listed as an alternate spelling on some dictionaries, but I've literally never seen it before in the wild) Also, your final paragraph reads like someone's crazy aunt/uncle's chain e-mail. I'm sure it's loosely based on something real, but it feels exaggerated simply by virtue of how it's written; it makes the answer worse simply by being there. Commented May 6, 2023 at 22:29
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It seems so simple: You could assume a medical depression by definition, and then take care that the patient does not come to harm.

I am not sure if that is put in law, but roughly speaking, if a person wants to die, you can safely assume he is not healthy. In some cases there are physical health problems that could be a valid reason, but that is what euthanasia is about. By definition I mean that a person with otherwise perfect mental health who agrees to ending his life could be defined to have a mental heal issue: He could be defined as being clinically suicidal.

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You can only consent if you are qualified to consent

In some cases society has an ethical responsibility to intervene in a person's self destruction. It's not always clear whether it is justified, one criterion is: Is the person qualified to choose for themselves?

I don't believe that a 20 year old out on a bridge because their partner has left them or because they've failed their exams is qualified to make the choice to die, but an 80 year old reasonably expecting little ahead but physical suffering may well be...

So to your suggested scenario of an extreme BDSM couple where one consents to be killed by the other. Do you think that the person choosing to be killed by their partner is of sound mind? If not, then they are not qualified to make such a choice, not qualified to consent, and therefore society must intervene.

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In British Law, it's illegal to consent to actual bodily harm, I believe that this was originally introduced so that people couldn't get their friend to cut their first two fingers off to get out of archery duty. Although this may well be apocryphal, I've not got the time to look for a good source right now.

So, beyond issues of consent, one could take the cynical view that governments aren't willing to allow the unnecessary death of their citizens because then they won't be available to fight in any wars that government starts or to contribute to The Exchequer.

There's also the fact that, like it or not, Common Law has huge Christian influences, and the bible says killing is bad so...

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    Thinking about the period in which archery was state of the art military technology, I am inclined to think that a person couldn't consent to be killed for the same reason suicide was illegal, which was (nominally, at least) on religious grounds.
    – phoog
    Commented May 4, 2023 at 9:30
  • Well there is that too Commented May 4, 2023 at 9:38
  • Is ABH an acronym standing for "Assault occasioning actual bodily harm"? If yes, would you consider editing your answer to include the full words?
    – Stef
    Commented May 4, 2023 at 11:09
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    ABH is actual bodily harm, yes... Thinking about it, you can consent to plain assault. So I've removed that and replaced it with the full words for ABH Commented May 4, 2023 at 11:39

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