Consent

Question 1

CL legal standard:

Answer 1

consent in fact or honest belief in consent

Question 2

girl asked shop worker for tool, he instead sexually assaulted her

Answer 2

Nazif
A belief can be enough for consent but that belief must be honest. Here it was not

Question 3

13 year old boy entered neighbours house 3x at night, assaulting her the third time

Answer 3

Bannin
Once evidence raised of consent – burden of negating defence of consent/honest belief in consent BRD – prosecution.

Question 4

man playing amateur football was tackled aggressively and late giving him a serious leg injury - sets out criteria when conduct as gone beyond implied consent

Answer 4

Barnes
People voluntarily engaging in contact sport where injury is an inherent risk– impliedly consent to risk of injury; but if the injurious act goes beyond the scope of implied consent to risk of injury—may be criminally liable;

Objective criteria for when conduct has gone beyond the scope of implied consent
* Conditions under which game is played
* nature of the act that forms the subject matter of the charge,
* degree of force used,
* degree of risk of injury
* Probability of serious harm

Question 5

Limits on consent

Answer 5

1. (street) fighting causing bodily harm;
   ○ AG’s references (consented scrap)
2. sado-masochistic sexual activities (sexual gratification);
   ○ Brown (ring of violence for sexual pleasure)
3. body modification - such as ‘scarification’;
   ○ Barker
4. religious activities involving the infliction of bodily harm (exorcism/deliverance);
   ○ Lee (exorcism)
5. intimate partner abuse;
6. sexual asphyxiation (strangulation for sexual gratification);

Question 5

When will consent not be effective

Answer 5

1. Mental incapacity (asleep or unconscious)
2. Fear (acquiescing out of fear that force will be applied (to themselves or another) vitiates ‘consent)
3. Certain types of mistake (where the complainant is mistaken as to the nature, or “nature and quality”, of the activity or Where the complainant is mistaken as to the identity of the defendant)

Question 6

NZ position

Answer 6

Consent is NOT a defence in relation to fighting (’across the board exception‘ but does not include sparring matches or playfights and organised matches conducted with a referee and according to established rules); otherwise, there is a sliding scale whereby consent may be withdrawn on an individualised basis based on public policy reasons;