In this paper I discuss the nature of consent in general, and as it applies to Carlos
Nino’s consensual theory of punishment. For Nino the criminal’s consent to change
her legal-normative status is a form of implied consent. I distinguish three types of
implied consent: 1) implied consent which is based on an operative convention (i.e.
tacit consent); 2) implied consent where there is no operative convention; 3) “direct
consent” to the legal-normative consequences of a proscribed act – this is the consent
which Nino employs. I argue that Nino’s conception of consent in crime exhibits
many common features of “everyday” consent, which justify that it be classed as
a form of (implied) consent. h us, Nino is right to claim that the consent in crime
is similar to the consent in contracts and to the consent to assume a risk in tort law.