Consent - defence

Question 1

What are the 2 elements to consent?

Answer 1

victim consented and

defendant believed the victim consented.

Question 2

What does the prosecution have to prove?

Answer 2

That the victim did not consent and that the defendant did not believe in the victim’s consent.

Question 3

What is the general rule for consent?

Answer 3

The general rule is that consent is only available as a defence to assault and battery.

Question 4

Will consent be available in cases where ABH or worse was caused?

Answer 4

Yes but only if:

• D intended to only commit a battery w/ consent of the victim & did not see the risk of inflicting ABH
• one of the exceptions apply

Question 5

What are the exceptions for consent?

Answer 5

• Medical treatment;
• Sport;
• Horseplay;
• Tattooing, body piercing and personal adornment;
• Sexual gratification/ accidental infliction of harm.

Question 6

What is the medical treatment exception for consent?

Answer 6

Consent can be given for surgery and other medical treatment that causes harm. Consent can be given to a high risk of death.

Question 7

What is the sports exception for consent?

Answer 7

There is a public interest in encouraging people to play sport, and therefore any incidental injury caused while playing within the rules of the game will not be an offence. Participants have consented to such incidental injury.

• conduct has to be sufficiently grave
• being sent off is not sufficiently grave
• “off the ball” will be outside the scope of implied consent

Question 8

Can someone consent to the risk of contracting HIV through sex?

Answer 8

R v Dica - Yes, they can consent to the risk of contracting HIV through sex but cannot consent to deliberate HIV infection as HIV is grievous bodily harm

Question 9

Will sexual gratification/ accidental infliction of harm during sex be a valid exception?

Answer 9

Sometimes, it is determined on a case by case basis. If its OTT then usually no.

Question 10

Can a parent rely on reasonable chastisement when applying force to a child?

Answer 10

Yes (R v Holey) however this is open to challenge under ECHRA Article 3
Not if it results in ABH or above (R v H)