1B.6.4 Consent

Question 1

Definition of consent

Answer 1

A person consents if they agree by choice and has the freedom and capacity to make that choice.

Consent is strictly speaking not a defence, as where the other person consents, there is no offence. For example, where the other person consents to being touched, there is no battery as there is no unlawful force – as shown by R v Donovan (1934).

Question 2

What act governs the law on consent?

Answer 2

s74 Sexual Offences Act 2003

Question 3

Can consent be used for murder or manslaughter?

Answer 3

Consent is never a defence to murder or manslaughter.

Pretty (2002): The defendant wanted a doctor to end her life. Courts held that consent cannot be a defence to murder or manslaughter. Article 2 ECHR states there is a right to life, not a right to die.

Question 4

Consent in sport

Answer 4

Consent is available with sports.

Consent is not valid if outside of the rules of the Game. R v Barnes (2004).

Question 5

Consent to bodily modification

Answer 5

Consent cannot be used if the result is serious harm or GBH - McCarthy (2019).

Question 6

McCarthy (2019)

Answer 6

D was a tattoo artist who did body modifications. These body modifications technically caused GBH. He argued consent. Held: No consent for body modifications, if they cause GBH.

Question 7

Consent to horseplay

Answer 7

Consent can be valid in “horseplay” – as seen by the following cases:

School children - Jones (1986)
RAF officers - Aitken (1992)

Question 8

Jones (1986)

Answer 8

School children were joking around and were throwing each other up into the air. However, two of them were dropped causing serious injury.

Held: Consent to horeseplay is a defence, even if there was no actual consent.

Question 9

Aitken (1992)

Answer 9

RAF officers were joking around and had set fire to each others’ fire-resistant clothing. However, one of the officers suffered serious burns.

Held: Defence of consent allowed because of “horseplay”.

Question 10

Consent to minor harm

Answer 10

Battery requires a “non-consensual force” but “everyday jostlings” are implied consent.

Question 11

Consent to sex

Answer 11

People under 16 cannot consent to sex. Offence under Sexual Offences Act 2003 for over 18 to have sex with person under 16 - R v Richardson (2015).

Consent to sex cannot be valid if evidence shows that the person lacks capacity. E.g. Age or disability. Defendant can argue that there was a reasonably held belief that consent was given.

Question 12

Valid Consent & Deception

Answer 12

Consent to examination is valid but not to sexual assault. Deception negates consent.

Cases: R v Tabassum (2000), Melin (2019).

Question 13

R v Dica (2004)

Answer 13

Spreading of HIV can amount to GBH.

Held: The victim must have knowledge of relevant facts, such as the D being HIV positive.

Question 14

Case for V having relevant facts for it to be consent.

Answer 14

R v Dica

Question 15

R v Tabassum (2000)

Answer 15

D pretended to be a doctor to obtain the opportunity to examine women’s breasts. He appealed, arguing the women had consented to the examination. However, the consent was only given because the D misled the Vs.

Question 16

R v Melin (2019)

Answer 16

D twice injected what he said was Botox into two Vs. Following the second injection, they both suffered really serious harm. P said Vs only consented to the treatment because D was medically trained - which he was not.

Held: the deception was enough to invalidate consent

Question 17

What are the exceptions to the rule that a person cannot consent to bodily harm?

Answer 17

• Sport (within the rules of the game)
• Body modification. e.g. tattoo, ear piercing
• Horseplay

Question 18

R v Barnes (2004)

Answer 18

Consent in relation to sport must be “within the rules of the game”.

Question 19

Pretty (2002)

Answer 19

Facts: D suffered from a terminal illness and wanted to take her life with the help of her husband. Judge ruled she could not consent to death.

Held: Consent cannot apply to murder/manslaughter.

Question 20

McCarthy (2019)

Answer 20

Facts: D was a tattoo artist who did body modifications. These body modifications technically caused GBH. He argued consent.

Held: No consent for body modifications, if they cause GBH.

Question 21

Jones (1987)

Answer 21

Facts: School children were joking around and were throwing each other up into the air. However, two of them were dropped causing serious injury.

Held: Consent to horeseplay is a defence, even if there was no actual consent.

Question 22

Cases for consent to spread sexually transmitted diseases

Answer 22

R v Dica
R v Konzani

Question 23

R v Konzani

Answer 23

Konzani was HIV positive and aware of his condition. He had unprotected sexual intercourse with three victims without informing them of his condition. D was charged with GBH and s20 OAPA 1861.

Held: No consent as V’s were unaware of HIV

Question 24

Aitken (1992)

Answer 24

RAF officers were joking around and had set fire to each others’ fire-resistant clothing. However, one of the officers suffered serious burns.

Held: Defence of consent allowed because of “horseplay”.

Question 25

Consent to harm

Answer 25

Consent is not valid for any offences causing bodily harm in the absence of good reasons.

Cases: Brown, Wilson, Emmett

Question 26

Brown (1994)

Answer 26

A married gay couple engaged in sado-masochism. Courts held consent could not be used because it was not in the public interest.

Question 27

Wilson (1997)

Answer 27

A straight married couple. The defendant branded his name into wife’s buttocks (with permission). Courts held it was not in the public interest for the court to interfere with married couples. This decision was heavily criticised because it doesn’t follow Brown (1994).

Question 28

Emmett (1999)

Answer 28

This case overturned the precedent in Wilson and continued from Brown that it is not in the public interest - it doesn’t matter if they are married. It applies to s18, s20 and s47 of the OAPA 1861. Minor harm is ok, but only if it is in the public interest.

Question 29

R v Donovan (1934)

Answer 29

The defendant caned a 17-year-old girl for the purpose of sexual gratification. This caused bruising and he was convicted of indecent assault and a common assault. The defendant appealed on the basis that the victim had consented to the act. His conviction was quashed.

Question 30

What offences can the defence of consent be used?

Answer 30

Non-fatal offences against the person.

It is never a defence to murder or to offences where serious injury is caused.