Defences: Consent

Question 1

Burden of proof?

Answer 1

It is for the prosecution to prove both that the victim did not consent and that the defendant did not believe in the victim’s consent.

Equally if the victim consented, even if the defendant did not know this, the defence could be available.

Question 2

What are the two elements to consider when it comes to consent?

Answer 2

i. victim consented; and

ii. defendant believed the victim
consented

! the defence of consent is only available depending on the level of harm inflicted on the victim and the circumstance in which the harm was inflicted.

Question 3

When is the defence of consent available?

Answer 3

Available:

*as a defence to assault and battery

• even where ABH or worse is caused provided D only intended to commit a battery with the consent of the victim and did not see the risk of inflicting ABH or above.

NOT available:

• if ABH or above has been caused to the victim and the defendant intended to cause such harm (or possibly saw a risk)

UNLESS D’s behaviour falls into one of the exceptions to the general
rule.

Question 4

What are the exceptions to the general rule enabling the use of the consent defence for things other than assault and battery?

Answer 4

the victim can consent to offences against the person of ABH and
above if the situation falls under one of the public interest exceptions:

*Medical treatment;
* Sport; within the rules of the game
* Horseplay;
* Tattooing, body piercing and personal adornment; and
* Sexual gratification/ accidental infliction of harm.