Consent Flashcards
What is the defence of consent?
The defence of consent may apply as a full defence for non-fatal offences against the person, but not for fatal offences.
How can consent be expressed?
Consent can be expressed or implied.
What is the general rule regarding bodily harm?
It is not in the public interest that people should cause each other bodily harm.
What are some exceptions to the general rule of bodily harm?
Exceptions include games and sports, surgical interference, and lawful chastisement under S.58 of the Children Act 2004.
What are the conditions for consent in games and sports?
Consent applies if the injury takes place within the rules of the game; actions outside the rules cannot be consented to.
Is street fighting lawful with consent?
Street fighting is unlawful, regardless of consent.
What is an example of surgical interference where consent may apply?
Male circumcision for religious purposes is an example where consent may apply.
Female Genital Mutilation is illegal.
What does lawful chastisement under S.58 of the Children Act 2004 require?
It must be reasonable, proportionate, and not cruel.
What is implied consent in everyday life?
There is implied consent to ordinary ‘jostlings’ of everyday life and to ‘rough horseplay’.
Can consent be given to the risk of infection during sex?
Consent can be given to the risk of infection, but not if there is an intention to spread the infection.
Is consent a defence to sado-masochistic sexual activities?
Consent is not a defence to sado-masochistic sexual activities.
Can consent be a defence for body adornment procedures?
Consent could be a defence for acts like tattoos and piercings, but not for procedures such as ‘tongue splitting’.
What constitutes real consent?
Real consent means the victim must have knowledge of the relevant facts and there must be no deception.
What happens if consent is given to the wrong person?
If consent is given to the wrong D, this will not be considered real consent.
What happens if D was not aware of the full facts regarding V’s consent?
D will not have a defence, even if the action fits into the exception of surgery, because he also gave V liposuction while under anaesthetic.
Can a genuine mistaken belief that the victim is consenting be a defence?
Yes, a genuine mistaken belief can be a defence (Aitken).
Example: Although D was mistaken that V was consenting, it was a genuine mistaken belief.
Can children consent on their own behalf?
Generally, children cannot consent on their own behalf (Burrell v Harmer). Children under 16 must be ‘Gillick-competent’ to give effective consent.
What if V is mentally incapacitated?
Decisions may be made on their behalf, as long as they are in the best interest of V (Re: F).
What is the conclusion regarding the defence of consent?
The defence of consent may apply, so D may be found not guilty.
