Professor Vera Bergelson expressed puzzlement over the fact that those who feel "trapped in the wrong body" can "consent to a sex change operation, which often involves the removal of healthy sexual organs," whereas those who would feel happier being amputees "cannot consent to amputation of an arm or a leg.” Bergelson is equally puzzled by the fact that a spouse may physically injure her partner pursuant to practices of religious flagellation, but she may not cause similar injuries pursuant to sadomasochistic sexual practices. The purpose of this brief essay is to explain why I believe that the aforementioned cases are not really puzzling at all. I will do so by arguing that, properly understood, consent is never a defense to battery. More specifically, I contend that consent defeats criminal liability only in two circumstances, neither of which operates as a "true defense” to liability.
Luis E. Chiesa, Consent Is Not a Defense to Battery: A Reply to Professor Bergelson, 9 Ohio St. J. Crim. L. 195 (2011)