When Consent Becomes Legally Irrelevant
The Law That Solves Nothing
Denmark is considering making it a criminal offence for a taxi driver to have sex with a customer. The proposal emerged after a small number of reported cases in which a driver had sex with a drunk passenger who later said the encounter was unwanted. The political impulse is familiar: convert public discomfort into a new offence. The law itself is unnecessary, paternalistic, and a textbook case of how good intentions produce bad policy.
Start with what already exists. In 2020, Denmark reformed its rape law to adopt a consent-based definition. Under the amended Criminal Code, sex without consent is a criminal offence, and consent obtained from a person too intoxicated to give it is not valid consent. A taxi driver who has sex with a passenger incapacitated by alcohol can already be prosecuted and convicted. If the cases that prompted this proposal involved passengers who could not consent, those cases fall squarely within existing law. If prosecutors struggled to secure convictions, the failure is one of enforcement or evidentiary standards — not of a missing statute.
The proponents of the new law know this, which is why the proposal does something different from what it advertises. It does not fill a gap in consent law. It shifts the legal question entirely — from whether consent was present to whether the parties occupied particular professional roles. Under the proposed rule, a taxi driver who has fully consensual sex with a passenger commits a crime. Consent becomes legally irrelevant. That is not a refinement of protection. It is the creation of a new category of offence in which no one was wronged.
The strongest version of the opposing argument deserves a direct answer. A taxi driver controls the vehicle. A drunk passenger, alone, at night, is physically dependent on the driver to reach safety. That is not an ordinary transaction — it involves confinement and impairment, and in that situation genuine consent may be difficult to establish. This is a real concern. But it is a concern existing law already addresses. If a driver exploits a passenger's confinement and impairment to obtain sex, the elements of coercion or incapacity are present, and the consent-based rape law covers precisely that. The cases the new law would actually add to the criminal code are the remaining ones — the cases where consent was genuinely given and later regretted. Regret is not violation, and criminalising it helps no one.
There is a grey zone where intoxication makes consent genuinely ambiguous — not clearly absent, not clearly present. That zone is real, and it is where prosecutions are hardest. But a blanket professional ban does not resolve the ambiguity. It bypasses it. It says: because consent is sometimes difficult to determine, we will make consent irrelevant. That is not a solution to a difficult evidentiary problem. It is an abandonment of the principle that criminal punishment requires proof of wrongdoing.
If the state's concern is that taxi drivers have a professional duty not to exploit the access their work provides, the appropriate instrument is professional regulation, not criminal law. Licence revocation, industry codes of conduct, employment sanctions — these tools exist and can be strengthened without turning consensual sex into a crime. The distinction between professional misconduct and criminal conduct is not a technicality. It is foundational. A society that erases it creates a legal system in which people can be convicted of offences in which no one was harmed and no one's will was overridden.
The proportionality failure is severe. By the proponents' own account, the cases that motivated this proposal are few. A blanket criminalisation of consensual sex between two categories of adults — applied to every taxi driver and every passenger in the country — bears no rational relationship to a handful of hard cases, most of which are already reachable under existing law. And if the logic is accepted, there is no principled boundary. A bartender serves alcohol and controls access to more. A hotel receptionist holds the key to where a guest sleeps. None of these analogies is identical to the taxi case, but the underlying principle — that a service relationship plus alcohol nullifies the possibility of consent — has no stable limit once adopted.
Milton Friedman's observation about judging policies by results rather than intentions applies with full force. The intention here is to protect vulnerable people. The result will be a law that criminalises consensual behaviour, that treats an entire profession as presumptive predators, that does nothing to help incapacitated victims already failed by enforcement, and that cannot be applied consistently. That is not protection. It is theatre — the manufacture of political concern in statutory form.
Denmark should reject this law. Adults who make choices they later regret have not been wronged. A society that cannot tolerate the existence of regret without criminalising one of the parties has lost its grip on what criminal law is for. The freedom of adults to make their own decisions, including poor ones, is not something a serious society discards on the basis of a few anecdotes and a legislative impulse to be seen doing something.