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Assaults - defences - consent
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Consent

Available for:

  • Touching (otherwise an assault),

  • Sexual activity (otherwise an offence, including rape),

  • Lawful sporting activity according to the rules;

  • Medical and dental treatment carried out by qualified practitioners;

  • Rough horseplay, where the victim has consented to the risk of harm R v Jones (1987); R v Aitkin and Others (1992).

Not available for:

Murder or manslaughter (even if the victim begs to be killed because he is terminally ill and in intense pain);

 

A fight, other than in the course of an organised sport, played according to the rules AG's Reference No 6 of 1980 (1981)

 

The deliberate infliction of bodily harm R v Brown and Others (1993)

 

Consent and mistake DPP v Morgan (1976) & R v Kimber (1983)

An honest belief (but not necessarily a reasonable belief) that the victim was consenting will negate the mens rea of the defendant

 

A fundamental mistake occurs where the victim consents to something that is qualitatively different to that which he thought he was consenting to.

For example, if A consents to have sexual intercourse with B in the mistaken belief that B is a film star, the consent will still be valid. A is not fundamentally mistaken about the nature of the act there is merely a non-fundamental mistake about the status of B.

 

However, if A believes that what they are going to do is a yoga exercise, she is fundamentally mistaken about the nature of the activity and her consent will be rendered void.

 

Consent to ABH and GBH…

The general rule is that you cannot consent to injury of this level. No matter how passionate the plea is for such injury.

Attorney General's Reference (No 6 of 1980) (1981)

R v Cato [1976]

Leach, R v (1969) - crucified a man on Hampstead Heath with his consent.

 

…. except:

Horseplay.

Surgical.

Tattooing and piercing.

Properly supervised games.

 

Death

No one can consent to another causing death. This is an absolute rule.

 

Sports

Limited consent for battery that causes injury

Players do not consent to assaults that are not all part of the game, as with biting during rugby or boxing.

R v Johnson (1986)
R v Lloyd [1989].

R v Cey (1989) CA (a Canadian case) An objective test is not sufficient.

 

The exception of boxing

Boxing is an odd exception to the rule that one cannot normally consent to bodily harm, there is no real argument that can actually justify boxing as a matter of law.  As a matter of policy it is tolerated provided it does not exceed the "rules of the sport" (The Queensberry Rules), for example by bare knuckle fights.
 

The leading case is R v Coney (1882) QBD (most often quoted as a case on aiding and abetting) in which it was stated that although the general rule is that consent to force which is likely to result in bodily harm does not afford a defence, the courts will recognise lawfully constituted sports as an exception to this rule. Although acquitting Coney the 11 strong Court did unanimously remark that prize-fighting was a criminal activity.

 

Boxers intend and desire to inflict the maximum injury possible within the rules of the game.  The reasons that justify other sporting injuries are illogical when applied to boxing.

Most sports (boxing the exception) do not have as their primary intention to cause injury, and therefore bumps and bruises "on the field of sport" are an acceptable part of the game. They are "manly diversions, they intend to give strength, skill and activity, and may fit people for defence, public as well as personal, in time of need" Foster’s Crown Law, (1792).

 

R v Billinghurst [1978] is a modern case that gives weight to this argument.

 

Surgery, piercing and tattooing

Surgical treatment

Patients can consent to necessary treatment. In some cases this can appear to others, as bizarre for example the removal of limbs because of a neurosis is permitted. Cosmetic surgery has to have a medical purpose; a scar inflicted to imitate a similar scar born by a supermodel would not be acceptable. The test here is ‘social utility’.


Parents can consent for children in medical cases

Gillick v West Norfolk Area Health Authority (1986), until they become "Gillick Competent", that is understand for themselves.

Re W (1993) (sterilisation) sometimes against the child’s wishes.

 

Typically a defence to assault or battery.

A person can consent to touching, sexual acts, contact sports, imprisonment, and where the law allows to ear piercing. Some circumcision can be consented to, and sometimes by the parents of a child Re J (Prohibited steps order: circumcision) (1999).

 

However, mutilation of female genitalia, or assisting a girl to do so is prohibited, except for medical necessity, see Female Genital Mutilation Act 2003

 

Tattooing, Ear and body piercing

Statute permits this for consenting persons over 18, although this is frequently breached with many young people starting tattooing at the age of about 14.

 

Burrell v Harmer [1967]
R v Wilson (Alan) (1996)

 

Sex

Vigorous sexual congress.

The law has been applied inconsistently, in the case of male homosexuals the courts were reluctant to allow a defence of consent for sado-masochistic assaults, R v Brown (1993) but in heterosexual cases they have allowed it provided it does not go to far, particularly between husband and wife.  This was seen in Wilson where a husband branded his wife's buttocks.  (It seems the Edwardian actress Mrs Patrick Campbell was right when she said "It doesn't matter what you do in the bedroom so long as you don't do it in the street and frighten the horses.")

 

R v Wilson (Alan) (1996)
R v Boyea [1992]
R v Brown (1993)
R v Donovan (1934)

 

See The Spanner Trust for information about promoting sado-masochistic rights.

 

No defence to sexual assault under 16

The Sexual Offences Act 2003 clarifies the position of sex between (or with) persons under 16.

 

Therefore, two 15 year olds engaging in any sexual activity automatically commit indecent assault on each other, no matter how keen they are. A 15 year old simply cannot give consent to sexual assault, therefore the other 15 year old cannot use consent as a defence.


Issues of consent in statute

Section 74 of the Sexual Offences Act 2003 gives a clear guidance as to what will amount to true consent.

 

It says that a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

There will be no consent if:-

  • Violence, or threats of violence were used against the complainant or another.

  • The complainant was unlawfully detained, was asleep or otherwise unconscious.

  • Suffered a physical disability and was not able to communicate consent to the defendant.

  • If the complainant had been drugged or stupefied or overpowered

  • If the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act, or impersonated a person known personally to the complainant.

Although this refers to sexual offences there is no reason why, in principle, they could not apply to other issues of consent.
 

Horseplay

Horseplay

It appears one can consent to horseplay and even quite serious injuries that result can escape prosecution because of the consent to the original horseplay.

R v Jones and others (1986).

 

Nature of the consent

True consent

Consent has to be true consent, that means consent obtained by threats for example holding a knife to a woman’s throat might cause her to consent to sexual intercourse, but it could not be true consent and therefore be rape. Consent obtained by fraud, for example if a person claimed he was conducting medical tests, or performing an operation. Or from people unable to know the nature of the consent e.g. the mentally ill or very young. 

 

R v Olugboja (1981) - consent given through fear
R v Williams (1923) - consent given through trick
Burrell v Harmer [1967] - consent from child
R v Richardson (1999) - dentist struck off
R v Tabassum (2000) - quality of the act

 

Under the Criminal Justice Act 2003 consensual intercourse with a girl under 13 will be charged as rape.

 

True consent, sex and HIV

In R v Dica [2005] CA D infected V with HIV during unprotected, consensual, sex and was convicted of “biological GBH” (s 20 of the Offences Against the Person Act 1861). The issue of consent lead to a successful appeal a retrial was ordered and he was again convicted by the jury.

Leave to appeal to the House of Lords refused but certified that a point of law of general pubic importance was involved in the decision.
 

It was held in R v Konzani [2005] CA that HIV could be recklessly transmitted in which case consent had to be informed, willing or conscious consent (including D's honest belief).

 

The victims in this case consented to the risk of HIV, not to being given the disease.

 

The victims did not give a willing or informed consent to the risks of contracting the HIV virus from the D and the convictions remained.

 

Consent obtained by deception

R v Williams (1923) - choirmaster claimed to improve singing by an "operation" which was sexual intercourse.

If the consent of the victim is obtained by deception or fraud it will be a valid defence provided it relates to a non-fundamental matter, but will be void where it relates to a fundamental matter.

 

Reform

Proposals for change

Law Commission Consultation Paper No.139 (1996)

Suggested extending the range of situations in which consent may be effective and removing some of the anomalies.

 

D should be able to rely on V's consent to an act intended to cause injury, or likely to cause injury, but not to an act intended or likely to cause serious injury.

 

Surgical treatment circumcision, tattooing and ear-piercing to be kept as a special case

 

No special consideration to horseplay or to sexual activities.

 

They suggest adopting special rules in relation to boxing and other organised sports.

These proposals were expressly excluded from the government’s own consultation paper on the law of assault.

 

The use of force against children

Smacking children discussed here.

 

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