Consent
What is the law regarding informed consent?
- In the old case of Clarence the courts held that if there was consent to sexual intercourse then there was no assault and it would not matter that V did not know that D was suffering from an STD. - but the law changed in 2004 If someone consented to an activity, but was not completely informed about the nature of it, then D can be liable.
What is the law regarding contact sports?
- in general consent is not available as a defence where ABH is likely or intended to be caused. - there are public policy exceptions which include 'mutual manly contests' and 'rough and undisciplined sport or play where there is no anger and no intention to cause ABH' so this applies to contact sports. - People can consent to injuries in contact sport as long as it does not exceed the rules.
What are the problems with the law on consent?
- inconsistencies can arise e.g. with Brown 1994 and Wilson 1997 , consent was not permitted for Brown and yet no medical attention was required, unlike for the wife of Wilson, so it can be seen as unfair. However, the distinguishing between these cases is that pain can be consented to for body adornment but not for sexual gratification. - This can be questionable as to whether the judges are trying to impose their own personal moral views into the law. -There are also contradictory cases involving heterosexuals, where Emmett 1999 was convicted and Wilson 1997 was not, however, the same distinguishing factor can be seen in this case too.
What is implied consent?
- this is when the courts accept implied consent to minor touching's that would otherwise be battery e.g. in a big crowd. It was held in Wilson v. Pringle 1987 that the 'ordinary jostling's of everyday life' were not battery. - There is also implied consent if one participates in a contact sport, and the contact is reasonable and within the rules of the game e.g. rugby
What is the law regarding mistaken belief in consent?
- where D genuinely, but mistakenly believes that the victim is consenting, then there is a defence to an assault. - This is problematic as it seems to depart from the general principle that 'it is not in the public interest that people should try to cause, or should cause, each other bodily harm for no good reason'.
Definition
Consent is not strictly speaking a defence, since where the other person consents there is no offence.
Is submission classed as consent?
Consenting through fear is not real consent
Slingsby 1995
Facts - D and V had taken part in 'vigorous' consensual sexual activity. During this, a signet ring that D was wearing had caused small cuts, which led to blood poisoning and consequently the death of V. Ratio - V's consent meant there was no form of assault so D was not guilty of manslaughter as there was no unlawful act.
Wilson 1996
Facts - D branded his initials on his wife's buttocks with a hot knife at her request, but she had to seek medical attention for the burns and her husband was charged with s.47. Ratio - Court of Appeal quashed his conviction as the branding was not considered an unlawful act, D's behaviour did not have any aggressive intent and it was not in the public interest that such consensual behaviour should be criminalised, because this act was considered to be body adornment, similar to having a tattoo.
Dica 2004
Facts - D knew he was HIV positive and yet still had unprotected sex on a number of occasions with two women who did not know he had the disease and said if they had known, they would not have consented to unprotected sex. Both women became infected. D was convicted of inflicting two counts of biological GBH. Ratio - a STD can be s.20 GBH and also that this was not consent as V's were not aware fully of the situation they were consenting to.
Barnes 2004
Facts - D made a late tackle on V during an amateur football match and V suffered a serious leg injury. Ratio - criminal prosecution should be reserved for those situations where the conduct was sufficiently grave to be properly catagorised as criminal. The Court of appeal stated that most sports organisations have their own disciplinary procedures and there was also the possibility for V to claim in a civil court.
Tabassum 2000
Facts - D persuaded women to allow him to measure their breasts for the purpose of preparing a database to sell to doctors. The women were aware of the nature of the acts he was going to do, but claimed they only consented because they believed the cause to be for medical reasons and that D either had medical qualifications or medical training. Ratio - Court of Appeal held that consent did not exist, as the consent was not to the act done. The consent was for a medical examination, not sexual connection or indecent behaviour.
G 2008
Facts - D, was a 15 year old boy and he had sex with a girl whom he genuinely believed (as she had told him) was the same age as him, when was in actual fact only 12. Ratio - D was convicted of s.5 rape of a child under the age of 13
Pretty v. DPP 2001
Facts - Pretty was suffering from motor neurone disease and knew she would eventually die from suffocation. She appealed to the courts to ask that if her husband assisted her suicide when she had decided life had become intolerable, that he would not be prosecuted. Ratio - House of Lords refused this request, and declared that any assistance of the husband to her death would be a criminal act.
Purdy v. DPP 2009
Facts - Purdy suffered from multiple sclerosis and knew she would become severely disabled. At which point she would want her husband to assist her to a different country where assisted suicide was legal. Ratio - the House of Lords set out that the DPP must issue guidance on the point of aiding and abetting suicide.
Aitken 1992
Facts - RAF officers poured white spirit over a colleague who was wearing fire resistant clothing whilst he was asleep and drunk. They set the suit on fire and V suffered 35% burns. Ratio - their convictions were quashed as the decision on mistaken belief in the V's consent should have been left to the jury. -In Richardson and Irwin 1999 it was held that a drunken mistake of the V's consent to horseplay could be a defence to s.20 offences.
Olugboja 1982
Facts - V had been raped by D's companion and seen her friend raped by the same man, so when D tried to have sexual intercourse with V, she submitted. D claimed that this had meant she had consented. Ratio - Court of Appeal held that submission was not real consent and so D could not rely on the defence.
Brown 1993
Facts - a group of gay men consented to inflicting sadomasochistic injuries on one another. Ratio - it was held that consent would not be allowed for s.47 or s.20 offences
Emmett 1999
Facts - a man and woman were taking part in 'high-risk' sexual activities resulting in burns to the woman's breasts and hemorrhaging to her eyes. Ratio - it was held that consent could not be a defence, as there cannot be consent where the harm is more than 'transient or trivial'.
Attorney-Generals Reference (no.6 of 1980)1981
Facts - two men agreed to a street fight to settle their differences following an argument Ratio - Court of appeal held consent was not available as it was not in the public interest
Jones 1996
Facts - two schoolboys, aged 14 and 15, were tossed into the air by older youths. One V suffered a broken arm and the other a ruptured spleen. D's claimed the V's had consented to the activity. Ratio - D's convictions were quashed; the court held consent could be a defence to genuine mistaken belief to 'rough and undisciplined horseplay', even if the belief was unreasonable.
What is the law regarding horseplay?
Jones 1986 set out that consent could be a defence to an assault charge where the activity that D and V participated in was 'rough and undisciplined horseplay'
What are the problems with horseplay?
There are also problems regarding horseplay. It is held that where those of a similar age use 'friendly' violence toward one another, then the defence of consent can be used, even where this causes serious injury and also even if V has not consented but D held in honest belief that V consented, then the defence is still available. This creates concerns and inconsistencies in the law as V can suffer serious injury without having consented.
What kind of consent must there be?
There must be true consent
What are some criticisms of horseplay?
This has been criticised, as it is difficult to see how this is in the public interest, however, the difference with horseplay is that usually the participants do not intend to cause injury, and it is also argued to be 'character building'.
What is the law on consent and euthanasia ?
it is held that no one can consent to their own death. This mean that if a terminally ill person wants to die, they have to commit suicide as, if any body helped them, this would be murder, even if it was only assisting their suicide.
Why do we need a defence of consent?
it is necessary for everyday life e.g. implied consent for the ordinary jostling's of life, or so that contact sport would not be illegal. Generally there is no defence of consent where bodily harm is caused as it is not in the public interest, however, there are a list of exceptions which are based on public policy.
Can you consent to minor injuries?
it was originally held that consent was available as a defence for minor injuries, but this was overturned in A-G's Ref (no.6 of 1980) 1981
What is the law regarding body adornment?
tattooing and piercings are injuries that one can consent to.
What are public policy exceptions ?
this is when the courts have recognised exceptions where consent is a defence to an assault charge even if injury is caused: • Properly conducted games or sports • Reasonable surgical interference • Tattooing • Body piercing • Horseplay • Dangerous exhibitions As it is seen as being in the public interest to allow consent in these situations.
What is the law on consent and sexual offences?
under the Sexual Offences Act 2003, the defence of consent is not always available e.g. s.5 rape of a child under the age of 13, is a strict liability offence as it is held that a child under 13 is never able to consent to sexual intercourse.
Regarding law on consent in sport, what did the Court of Appeal set out?
• Consent is not generally available as a defence where ABH is caused, but sporting activities are included in the exceptions; • Exceptions are based on public policy; • Conduct which goes beyond what a player can reasonably be regarded as having accepted by taking part, is not covered by the defence of consent; • However, in a sport which bodily contact is a commonplace part of the game, the players consent to such contact, even if through an unfortunate accident serious injury may result.
What factors are considered while deciding whether the conduct during the course of sport is criminal or not?
• Intentional infliction of injury shall always be criminal; • Reckless infliction of injury - did the injury occur during actual play, or in a moment of temper or over-excitement when the play had ceased? • 'Off the ball injuries are more likely to be criminal • If the injury occurs within the rules and conduct of the game then this will be a firm indication that the action was not criminal. -The type of sport, level it was played, nature of the act, degree of force used, the extent of the risk of injury and D's state of mind are all likely to be considered whilst determining whether an injury was criminal or not.
