Assumption of Risk and Consent in Georgia Criminal Defense

“Assumption of risk” and “consent” are sometimes used loosely as if they were interchangeable, but they belong to different areas of Georgia law and operate in different ways. Assumption of risk is a civil tort doctrine that limits a plaintiff’s ability to recover damages. Consent, in the criminal context, is a separate concept that can, in narrow circumstances, negate an element of a criminal charge. Georgia law does not recognize a standalone “assumption of risk” defense to a criminal prosecution, and the two doctrines should not be conflated.

Assumption of Risk Is a Civil Doctrine

Under O.C.G.A. § 51-11-2 and related provisions of Georgia’s tort law, assumption of risk applies when a plaintiff voluntarily and knowingly exposes himself or herself to a known danger. To establish the defense in a civil case, the party relying on it generally must show that the plaintiff had actual knowledge of the danger, understood and appreciated the risk associated with it, and voluntarily exposed himself or herself to that risk anyway. When those elements are met, the defendant in a civil negligence action is treated as owing no legal duty to protect the plaintiff from the risk that was knowingly assumed, which can bar or reduce recovery of damages. This doctrine exists entirely within the civil system; it determines who pays for a loss, not whether anyone has committed a crime.

Consent Is the Relevant Concept in Criminal Law

Georgia criminal law does not import the civil assumption of risk doctrine into criminal cases. Instead, the legally relevant concept in the criminal context is consent. For certain offenses, particularly those where the harm or risk created depends on the absence of the other person’s agreement, evidence that the alleged victim voluntarily and knowingly agreed to the conduct can be relevant to whether an offense occurred at all. Reckless conduct under O.C.G.A. § 16-5-60, for example, is defined around a person’s conscious disregard of a substantial and unjustifiable risk to another’s safety; where the other person knowingly agreed to take part in the risk-creating activity, that agreement bears on whether the conduct meets the statutory definition.

Consent Has Real Limits

Consent is not a defense to every charge, and its availability depends heavily on what the particular offense is designed to protect. Crimes that exist to protect interests broader than the individual involved, such as drug distribution offenses, weapons offenses, and driving under the influence, are not negated by the agreement of another participant, because the law treats the harm to the public, not just to the individual, as the basis for the offense. Consent is also legally ineffective when it is obtained through fraud or force, or when it comes from someone who lacks the legal capacity to give it, such as a minor or a person who is mentally incapacitated. In those situations, the apparent agreement does not carry the legal weight needed to affect criminal liability.

Contact Sports and Mutual Combat

One area where the concept of consent has particular relevance is athletic and other voluntary physical activity. Participants in contact sports or other regulated physical contests are generally understood to consent to the ordinary risks inherent in that activity, including the level of physical contact the rules of the activity contemplate. That implied consent has boundaries, however. Conduct that goes well beyond what the activity’s rules and customary practice allow can fall outside the scope of what was agreed to, and criminal liability may attach to conduct that exceeds the bounds of the activity itself, even though the participants consented to the activity in general.

Two Doctrines, Two Different Legal Systems

Assumption of risk and consent address a similar underlying idea, that a person who knowingly takes on a risk has some bearing on the legal consequences that follow, but they do not operate as the same defense or produce the same results. Assumption of risk affects whether and how much a plaintiff can recover in a civil damages action. Consent, where it is recognized for a particular criminal offense, can bear on whether the elements of that offense are satisfied in the first place. Treating the two as a single, generic “assumption of risk” defense to a criminal charge does not reflect how Georgia law actually separates civil liability from criminal prosecution.

This article provides general information about Georgia law and is not legal advice. Consult a licensed Georgia attorney about a specific situation.