This Article addresses the issue of protecting human dignity as a ground and a threshold for criminalization. Human dignity can be either a limit to the scope of criminal law or a reason that justifies criminalization. This inquiry will be conducted through the referral to two German cases regarding consensual conduct. The first concerns consensual maiming and killing of a person and the second concerns consensual incest between two adult siblings. This Article does not further examine questions on the ontology of consent; neither does it examine questions regarding validity of consent as rational and voluntary. The issue discussed here concerns the case where consent cannot serve as a waiver of the right protected. This clearly shows that there is a distinct core of wrongdoing, which consists in the violation of human dignity and goes beyond the violation of autonomy rights. However, human dignity cannot be regarded solely as an objective value, which takes priority over autonomy rights, but rather as an independent value to autonomy based on the subjective right not to be severely humiliated.
Dignity, Rights, and the Role of Consent in German Criminal Law,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol54/iss2/12