Consent Flashcards
what is consent?
a common law defence available for assault and battery but not for ABH and above unless for good reason
what case example established the law of consent?
Brown - 5 male Ds charged with ABH and wounding due to consensual homosexual sadomasochistic activities. no defence claimed.
what is the two part test for consent?
- was the consent real (legal)?
- was the injury for good reason and within the rules of each category?
what are the 3 categories under the first part?
- fraud - did V know nature and quality
- informed consent - making V aware of what they’re consenting to
- genuinely believed V consented, may get defence
what case example can be used for the first part of consent?
Dica - Fully informed consent means consenting to the sex and the HIV/AIDS. No defence.
what are the 6 categories of part 2?
- contact sports
- surgery
- lawful chastisement
- tattooing and branding
- horseplay
- sexual activity
what does ‘contact sports’ mean?
agreeing to the contact that is within the rules of the sport
what case example can be used for ‘contact sports’?
Barnes - V suffered a leg injury from a tackle. tackle was fair and by the rules so defence was claimed.
what does ‘surgery’ mean?
- must sign a consent form
- FGM - no defence
- both parents must consent to a child’s circumcision
what case example can be used for ‘surgery’?
J - parents didn’t agree on circumcising. consent of both needed.
what is ‘lawful chastisement’?
allowed assault/battery on a child. ABH of more is illegal and receives no defence
what does ‘tattooing and branding’ mean?
can consent to a tattoo or branding
body modification is illegal
what case example can be used for ‘tattooing and branding’?
R v BM - D charged with bosh modification of 3 clients. no defence claimed
what is ‘horseplay’?
rough friendly violence. consent can be implied.
what case example can be used for ‘horseplay’?
Jones - Ds threw V in the air, V landed on back injured. Defence was claimed as it was implied consensual horseplay
what does ‘sexual activity’ mean?
advertent - hurting for sexual pleasure, no defence claimed
inadvertent - accidentally hurting someone during sexual activity, defence claimed
Domestic Abuse Act 2021 - gave these rules to reduce domestic violence
what case example can be used for ‘sexual activity’?
Slingsby - D cut V internally whilst wearing a ring and V developed septicaemia and died. defence was claimed as consent was given to insert the finger
what are some positive AO3 points on consent?
common law - flexible, good for amending.
separation of powers - judge made law but Children’s Act and Domestic Abuse Act is parliamentary law.
Both parents must consent to a circumcision.
what are some negative AO3 points on consent?
does not satisfy rule of law and parliamentary sovereignty.
sports rules - too strict, what if your intention was to play by the rules?
unfair on victims, if D ‘genuinely believed’ V consented they can still claim defence.
should the law have a say on our sex lives?
