Pursuant to R. 2:5-1, this opinion is to serve as amplification of this court's ruling on the issue of consent of the victim to the alleged atrocious assault and battery (N.J.S.A. 2A:90-1).
Specifically, defendant contends that he is not guilty of the alleged atrocious assault and battery because he and Mrs. Brown, the victim, had an understanding to the effect that if she consumed any alcoholic beverages (and/or became intoxicated), he would punish her by physically assaulting her. The testimony revealed that the victim was an alcoholic. On the day of the alleged crime she indulged in some spirits, apparently to Mr. Brown's dissatisfaction. As per their agreement, defendant sought to punish Mrs. Brown by severely beating her with his hands and other objects.
This court was able to find only two early cases in this state dealing with the consent defense in criminal assault cases: Cliver v. State , 45 N.J.L. 46 (Sup. Ct. 1883), and State v. Cooper , 22 N.J.L. 52 (Sup. Ct. 1849). Though they are somewhat inferentially and analogously enlightening, they are not entirely dispositive of the question of consent in this case, for they, like many cases (including those in this and other jurisdictions that have held consent to be
a defense in a prosecution for criminal assault) involve sexual assaults of one kind or another.
Some courts have allowed the defense of consent in civil suits, while denying it in criminal prosecutions for battery (e.g., Wright v. Starr , 42 Nev. 441, 179 P. 877 (Sup. Ct. 1919)). According to these courts, there are two different interests at stake. While criminal law is designed to protect the interests of society as a whole, the civil law is concerned with enforcing the rights of each individual within the society. So, while the consent of the victim may relieve defendant of liability in tort, this same consent has been held irrelevant in a criminal prosecution, where there is more at stake than a victim's rights. Love, "Criminal Law: Consent as a Defense to Criminal Battery -- The Problem of Athletic Contests," 28 Okla. L. Rev. 840 (1975).
Because of the dearth of authority in New Jersey, it will be useful to examine the manner in which other jurisdictions have resolved the issue of consent to criminal assaults. Several of these courts have ruled on the issue of consent in criminal assault cases that did not have sexual overtones but did involve actual batteries. These courts have almost invariably taken the position that since the offense in question involved a breach of the public peace as well as an invasion of the victim's physical security, the victim's consent would not be recognized as a defense, especially where the battery is a substantial or severe one. Taylor v. State , 214 Md. 156, 133 A.2d 414, 65 A.L.R. 2d 740 (Ct. App. 1957). See generally, 58 A.L.R. 3d, Assault and Battery , § 2 at 662. It was very early held to be a crime to cut off the hand of a person at his request and with his full consent. Wright's Case (Leicester Assizes 1604), reported in Beale, Cases on Criminal Law (3d. 1915), 209. Professor Beale explained that
Homicide, mayhem and battery may be committed, though the individual injured consented to the injury. The reason for this is clear: The public has an interest in the personal safety of its citizens and is injured where the safety of any individual is threatened, whether
by himself or another. [Beale, "Consent in the Criminal Law," 8 Harv. L. Rev. 317, 324 (1895)]
Atrocious assault and battery is a crime in this State, as it is in others. As noted by the court in Martin v. Commonwealth , 184 Va. 1009, ...