When is the victim's consent required for prosecution?

20/07/2022

In certain cases, the victim must give their consent to the prosecution. If they do not give consent, the prosecution of the suspect cannot be initiated or continued.

In general, it is for the State to decide whether to prosecute criminal offences. The exception is the protection of certain private interests, to a limited extent. The private interests of certain persons are protected by the so-called "victim's right of disposition".

If there is a certain relationship between the victim and the perpetrator (a close person) and the specific offence is included in the list of offences listed in the Code of Criminal Procedure (section 163), the victim must be explicitly asked before the prosecution is initiated whether he or she consents to the prosecution. If the relationship between the accused person and the victim is established after the prosecution has been initiated, the victim must be asked immediately thereafter.

If the victim does not immediately respond to the request of the prosecuting authority, the victim shall be given a maximum period of 30 days to respond. If the victim fails to make a statement within the time limit, they shall be deemed not to consent to the prosecution, i.e. the prosecution may not be initiated or continued. Consent cannot be given later.

Consent given may be withdrawn. However, once consent has been withdrawn, it cannot be given again.

Which persons are required to give consent?

In general, victim's consent is necessary for prosecution to be brought against a person who, in relation to the victim, is "a person against whom the victim, as a witness, would have the right to refuse to give evidence". Simply put: consent is required if the victim and the perpetrator are close persons. Close persons are a relative in the direct line of descent, a sibling, an adoptive parent, a spouse, a partner or a companion.

E.g. as for offence of rape under section 185(1) and (2) of the Criminal Code, victim's consent is required if the offence is committed between spouses, partners or companions.

Which offences require consent and which do not?

The law contains the list of certain offences. These include, e.g., Bodily Harm, Damage to Property, Dangerous Threatening, etc. On the contrary, the list does not include, for example, the offence of Grievous Bodily Harm, Murder or Fight.

When the consent not required, regardless of the relationship between the persons and the specific offence?

The following exceptions apply to the rule of victim's consent.

Consent is not required if death has been caused to the victim by such an offence. This is understandable as he or she no longer has a way to give consent.

Further, consent is not required from a victim who is incapable of giving consent because he or she is incapacitated to that extent.

Further, the consent of the victim is not required if he is a person under 15 years of age.

Nor is consent required if it is clear that consent was not given (or was withdrawn) in distress caused by threats, coercion, dependence or subordination of the victim. Thus, if the perpetrator uses threats to dissuade the victim from consenting to his prosecution, the prosecution may be initiated without the victim's consent.

Special cases

What is the latest date by which consent can be withdrawn? The victim can withdraw consent at any time until the Court of Appeal starts the final deliberations. It can be withdrawn during the investigation, during the main trial, even after the decision of the trial court, and even during the appellate proceedings.

What if there are multiple victims? The consent of even a single victim is sufficient to prosecute. This may be important, for example, in the case of the offence of trespass to the home (consent is required for this offence). The victims are all those who lawfully reside in the dwelling entered by the offender. It is sufficient that consent to prosecution is given by only one of them.

How can consent be given? Case law shows that consent must be specific and intelligible, and must be given expressly. It cannot therefore be inferred implicitly - e.g. from the circumstances, from the relationship of the victim to the perpetrator, from witness statements, etc.

If the victim refuses consent, can he or she subsequently claim damages in criminal proceedings (in relation to other victims)? Yes, this would be a situation where one victim (e.g. the parent of the accused) has refused consent to prosecution, but criminal proceedings are conducted in respect of other victims (whose consent was not required or was given). The injured parent may then claim damages in such proceedings. The claim may be made no later than the opening of evidence at the trial Court.