Consent EVALUATION Flashcards
Explanation
Consent is a general defence (available for most crimes) and a complete defence (results in acquittal). V may not be “allowed” to consent by law. D can consent to common assault (as in R v Slingsby) but D cannot consent to: murder (Pretty v UK), S18 (R v Leach), and S20 or S47 (R v Brown). There are some exceptions when V is able to consent to injury: sports/games, horseplay (as in Aitken), tattooing/branding (as in Wilson), and medical treatment. D must actually give consent. There is a clear distinction between submitting and consenting (Olugboja). D must have the capacity to consent, meaning they are Gillick competent (Gillick v Wisbech Health Authority). This means V must have sufficient maturity, intelligence, and understanding of the nature and consequences of what they are consenting to. Consent must be genuine and not obtained by deception (as in R v Newland). V may give implied consent (in cases of “ordinary jostlings of life” - Wilson v Pringle).
You can never consent to murder
CAUSE: Case law is very strict on this issue: it does not matter how well-evidenced the consent is, it will never be seen as a defence to murder/killing, no matter how tragic the circumstances. CONSEQUENCE: The case of Pretty is explicit on this point: no defence to murder. This means that the law is absolutely clear on this point and so very certain. It protects vulnerable people from being pressured into consenting in order for their family member or carer to kill them for a motive other than compassion, e.g. inheritance. COUNTERPOINT: Increasing pressure on this point as the Terminally Ill Adults (End of Life) Bill is going through Parliament. At present the situation can be seen as deeply unfair. If your family is wealthy enough to pay for Dignitas and end of life assistance at their clinic in Switzerland then there is unlikely to be a legal prosecution. Also a distinction is drawn between those in a terrible situation who are capable of ending their own life (their consent is not in doubt) and those who physically cannot. The DPP guidelines in 2014 do mitigate this though and say factors which would argue against a prosecution include the victim had reached a voluntary, clear, settled and informed decision to commit suicide and where the suspect was wholly motivated by compassion. Thus, assisting suicide is still illegal but clear voluntary consent may mean a prosecution will not be made (since April 2009 there have been 182 assisted suicide investigations started by the police. Only 22 have gone to court).
Exceptions to consenting to S47 and S20
CAUSE: The general rule is that you can’t consent to this level of assault which seems clear on the face of it but the number of exceptions is so great it makes the law unclear. EXAMPLE: The exceptions allowed include those outlined in R v Brown, ‘rough horseplay’ and well-conducted sport within the rules and spirit of the game. CONSEQUENCE: Both these exceptions are open to wide interpretations and so this can lead to complexity and uncertainty. For example, “rough horseplay” and “spirit of the game” are very vague. COUNTERPOINT: The breadth of the exceptions do, of course, mean the law can be flexible to new situations, meaning justice can be served.
Inconsistent distinctions regarding the exceptions
CAUSE: As stated above the breadth of the exceptions to consent as a defence to S20 or S47 created a problem where the courts have allowed or denied a defence in a way that seems illogical. The distinction between the cases of R v Brown and R v Wilson are a good example of this. CONSEQUENCE: Brown was decided on the grounds that sadomasochistic acts performed by the defendants were purely for sexual gratification and therefore ‘cruel’ despite the fact that they were all consenting and the injuries were, although painful, relatively minor but in Wilson the defence was allowed when the defendant branded the victim’s buttocks (which required medical treatment) and it’s hard to argue that this was not cruel and also left a more serious injury so the decision is illogical. COUNTERPOINT: However, ⅗ judges who disallowed the consent defence in Brown cited the motive behind the men in Brown (sexual gratification) should not be encouraged as it is unwelcome in society to allow this whereas consensual activities between couples, as opposed to random people, should be treated differently.
What is genuine consent?
CAUSE: The rule that a person is allowed to make a drunken mistake as to whether a victim is consenting seems to contravene the idea of consent having to be genuine. EXAMPLE: Aitken shows that D is allowed to make a drunken mistake about consent in horseplay, so it appears there is no need for consent to be genuine in such cases. CONSEQUENCE: It seems very hard to justify the fact that his inconsistency, especially because in Aitken, the victim suffered very serious injuries from being set on fire, which no reasonable person would think V would consent to, but the fact that his ‘friend’, drunkenly thought he would would consent means he was allowed the defence. COUNTERPOINT: However, the jury must be convinced that there was genuine consent and this may be a high bar and so prevent drunken mistakes about consent causing a serious number of injustices.
Intoxicated mistakes about consent are treated differently for offences against property and offences against the person (unless ‘rough horseplay’ is involved, per Aitken)
CAUSE: The difference between how property offences and NFOs are treated causes uncertainty. EXAMPLE: Aitken shows that generally intoxicated mistakes about consent can’t be a defence (although in the case itself it was allowed due to ‘rough horseplay’ being involved and the jury looking at all surrounding circumstances). CONSEQUENCE: It also seems unfair that someone can be acquitted for having a genuine belief in consent for taking/damaging something very valuable, but will be convicted of battery despite truly believing someone consents to minor contact. COUNTERPOINT: However, this can be justified because the consequences in property offences are less significant than the consequences in non-fatal offences, so a distinction can be drawn there.
