Consent AO3

Introduction

Consent can be argued as not being a defence as it is saying that no offence occurred due to V’s consent. Consent exists in both common and law and statute. It can be defined in s.74 Sexual Offences Act 2003 - “where a person makes a choice and has the freedom and mental capacity to make that choice”. Consent is not allowed for murder

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Level of Injury/Harm (Sports)

  • Law is not consistent for the level of injury

  • R V Donovan → D caned a 17-year old girl for sexual gratification, V consented → Lord Templeman held that consent to common assault is allowed, but NOT for serious harm/ injury (ABH/ GBH)

  • Inconsistencies arise when dealing with Sports → R V Barnes - “sufficiently grave” was used as the level of harm for sports when D made a late tackle in football and broke V’s leg, this was held as not being “sufficiently grave” and so consent was allowed as V agreed to this by playing football

  • In contrast with R V Billinghurst consent was not available when D punched V outside the rules of the game during rugby match

  • However these exceptions for sports can be seen as beneficial as otherwise it will interfere with individual’s freedoms and most sports have their own misconduct disciplinary systems

Personal Autonomy/ Paternalism

  • Paternalism is when judges prohibit particular acts in the benefit of public policy

  • This can cause issues when it interferes with individual freedom/ autonomy→ R V Brown - sadomasochism was not allowed in law between 5 gay men who inflicted harm on each other for sexual purposes, despite everyone consenting, the court didn’t allow for consent to uphold public benefit

  • This was seen as inconsistent with R V Wilson- when a heterosexual couple used hot wax on each other for sexual purposes, which was similar to R V Brown, however the court allowed for consent on this instance which created uncertainty

  • However the general rule on public benefit is justifiable as normally it is socially acceptable for piercings, tattoos and injection, but cases where it involves body modification are more limited→ R V BM→ D, an unlicensed tattooist who performed several surgical interference e.g. cutting tongues/ ears was held as guilty, despite Vs having consented

  • → It is still difficult to balance public policy and personal freedom, which may show consent is in need of reform

True/Informed Consent

  • V must know all the risks, and get advice about particular actions, and also understand the nature of the act

  • → R V Richardson - A dentist, who was suspended practised on patients with consent, when Vs found out she had been suspended, their claim was not allowed as the consent was still valid as the fraud was to her practise, not her identity

  • This can be seen as going against the principle as V’s lack of awareness of D’s suspension should be enough to invalidate consent

  • → This is supported by R V Tabassum- D inspected multiple D’s breasts, lying as a doctor→ this was held as invalidating the consent

  • Also seen in R V Dica - D gave HIV to V, who consented for sex, but not for the HIV, which she was unaware about

  • These inconsistencies show the law on consent needs reform

Horseplay

  • Horseplay is socially accepted for a form of consent as most people do not intend to cause harm (or more than serious harm) when they are playing rough → The courts define this as implied consent

  • → the rule was seen in R V Jones- V was found to be under consent when Ds threw him in the air, and V got injured

  • This blanket term of “horseplay” could be used an excuse for people to be violent/ rough in everyday situations, which can be a public policy concern

  • → The rule going to far could be seen in R V Aitken - drunk RAF Soldiers set fire to V (who was wearing fire-proof clothes) and he got severe burns, it was held that Ds believed V consented as he thought it was a prank, and therefore the defence of consent applied

  • This is a major inconsistency as it allows for “serious harm” (GBH) to be under consent, which could promote violence

  • (Children also do not understand the full risks of actions, which can also be criticised in horseplay)

  • However, limits were created in R V Aitken, which considered the degree of harm

  • → It is difficult to balance the levels of harm in horseplay, showing reform is needed

Conclusion

Consent is too broad and complex of a defence to be able to be codified into a statute

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