Consent Model Answer Flashcards
The defence of consent may apply, a… defence which can be used for…
full, non-fatal offences against the person, but not to fatal offences. It can be expressed, or implied.
The general rule is that…
it is not in the public interest that people should cause each other bodily harm.
However, there are exceptions when it is in the…
public interest to allow the defence of consent where bodily harm is caused, as set out in Attorney General’s Reference (No 6 of 1980).
Examples are:
a) games and sports if properly… . Actions outside of the rules of the game… . Street fighting is…
b) surgical interference, male… . Female genital…
c) lawful chastisement if…
a) conducted where the injury takes place within the rules of the game, (Coney, Barnes). cannot be consented to (Lloyd, Johnson). unlawful, regardless of consent (AGs Ref (No 6 of 1980).
(b) circumcision for religious purposes (Re: J. Mutilation is illegal.
(c) reasonable, proportionate and not cruel under S.58 of the Children Act 2004 (A v UK).
IF RELEVANT: Implied consent to ordinary jostlings’ of… and to…
everyday life, where in theory a battery has taken place (Wilson v Pringle), ‘rough horseplay’ meaning friendly violence (Jones).
IF RELEVANT: Consent can be given to the risk of…
infection when having sex, but not if there is an intention to spread the infection (Dica).
IF RELEVANT: Consent is not a defence to…
sado-masochistic sexual activities, (Brown, Emmett).
If RELEVANT: Consent could be a defence to such acts if considered to be…
‘body adornment’ like tattoos and piercings (Wilson) but not to procedures such as “tongue splitting”, (R v BM).
IF RELEVANT: Submission through…
fear is not consent (Olugboja).
IF RELEVANT: The consent must be real, which means…
the victim must have knowledge of the relevant facts and there must be no deception, (Tabassum, Dica).
IF RELEVANT: V must also be able to comprehend…
the nature of the act (Burrell v Harmer).
IF RELEVANT: However, not all fraud will…
invalidate consent (LINEKAR).
If V gives consent to the wrong D, this will…
not be real (Elbekkay).
IF RELEVANT: A genuine mistaken belief…
that the victim is consenting can be a defence (Aitken).
IF RELEVANT: It is generally held that children cannot consent… and in addition, children under 16 must be…
on their own behalf (Burrell v Harmer), held to be “Gillick-competent” to give effective consent.
IF RELEVANT: If V is mentally incapacitated, decisions may be…
made on their behalf, so long as they are in the best interest of V (Re: F)
To conclude, the defence of consent…
may apply, so D may be found not guilty.
