1B - Evaluation of consent Flashcards
Comparing Brown and Wilson
the choice of the participants to suffer injury appeared to receive limited support in Brown but Lord Slynn suggested ‘it is not for the courts in the interests of paternalism or to protect people from themselves to introduce into statutory crimes concepts that do not properly fit there’
Homosexuals v heterosexuals
One view is that courts are prepared to approve acts where parties are consenting adult heterosexuals and the injuries aren’t too serious, but not when parties are consenting adult homosexuals
Contradictory decisions within cases of heterosexuals
R v Emmett: she consented and needed medical attention. CoA held her consent to the injuries couldn’t be a defence where the harm caused is more than ‘transient or trivial’
R v Wilson: consent was allowed despite the wife needing medical attention
Courts imposing their views
Could be said that in cases consent wasn’t allowed, the courts are trying to impose their own moral values
Public policy issues were important considerations in the decision of the HOL in Brown
Judgement: ‘in principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. In a civilised society, cruelty should not be tolerated. Main reason for the HOL decision that the V’s couldn’t consent to injuries caused by deliberate infliction of cruelty
Law Lords felt violence involved the degradation of the V’s - they were treated in a humiliating and uncaring wat and there was also no way of knowing what injuries might result to the victim from the conduct
Meant that in the view of the courts, it was in the public interest and morally right, for the law to interfere with the autonomy and freedom of individuals to do what they chose, especially in private
Horseplay
- Means that those involved in a ‘game’ use ‘friendly’ violence to each other even where this behaviour results in serious injury, courts have rules that consent can be a defence which is the legal basis that the aggressor doesn’t have the mens rea for assault
Horseplay: honest belief in consent provides a defence even though they haven’t actually consented
Jones and Aitken
Serious injuries caused to the victims in both cases but the courts accept the defence of consent was available, even though there was a mistaken belief in the existence of consent
Horseplay: Jones and Aitken v Brown and Emmett
More inconsistencies in the law
Where should real consent be refused as a defence for disapproved types of sexual behaviour and yet allowed for horseplay which results in serious injury, even where the victim wasn’t actually consenting
