Comparative Study of Consent of the Victim on Bodily Harm in the Law of Iran and Germany

The Iranian laws are silent on the ruling of consent of the victim on bodily harms and it has often been claimed that it has no effect. However, in Germany Article 228 of StGB bars punishment of the actor in cases of consent of the victim, provided that it would not be against common decency. From legislative foundations perspective, the approach towards consent might be based on one of the harm, paternalism or legal moralism principles, the ineffectiveness of it being based upon the harm principle and the German Approach being based upon paternalism. In Germany, plus full consent, hypothetical and presumed consent are treated as full consent, while in the Iranian law these instances are justified via the rules of necessity. Some examples of consent of the victim on bodily harm from non-physicians include medical and semi-medical operations such as circumcision and tattooing, illegal sports and sexual masochistic acts. According to the German law, if all conditions being present, consent dissolves the second element of crime (Rechtswridigkeit) and the actor will have no civil responsibility. In Iran, there is no specific ruling, however considering the general rules consent of the victim will have no influence on Ta’zir. Speaking of Qisas and Diya, it has been claimed that most Islamic jurists believe that it will dissolve both of them. It is recommendable that the Iranian Law adopts an explicit point of view on consent on bodily harm. In some dimensions like tattooing, regulating and in some other dimensions like mutilation, explicit criminalization would be a proper criminal policy.