Evaluation of Consent Flashcards
What are the four criticisms to consent?
Law needs to protect us from unlawful harm
Privacy and Public Policy
Whether judges should determine social, moral and public policy issues
Inconsistent Application
Law needs to protect us from unlawful harm - how is it a criticism - P-DEV-E
The general rules do provide protection for those who are subjected to violence, even if they consented based on fraud (Tabassum), or through submission (Olugboja), which is obviously good. However, there is a lack of clarity on exceptions, making the law quite unclear and potentially protecting those who cause harm.
Privacy and public policy - why is it a criticism - P-DEV-E
Law needs a balance between individual freedoms and social paternalism while mirroring social attitudes - could be argued the law of consent imposes on the our freedom as it tells us what we can and cant do, even in private - (Brown) (Wilson). This is because it could conflict with the Human Rights Act if freedom is taken away unjustifiably. However, the exceptions for consent do provide some reasonable freedom to ensure individuals have freedom.
Should judges determine social, moral and public policy issues - why is it a criticism - P-DEV-E
Many of the judgements where consent has not been allowed seem to shown bias and prejudice from judges who may decide based on their own morality - R v Brown “cult of violence” and Corbett repeated reference to ‘deviance’. Decisions to be made - Parliament need to clarify rules as there is a lack of guidelines for judges to follow.
Inconsistent Application - why is it a criticism - P-DEV-E
Most areas of consent have inconsistent rules such as sexual activity (Brown) vs (Wilson), sporting situations where it is unclear whether it is within the rules of the game or not (Barnes), circumcision and FGM and more. However, each case is decided on its merits meaning that outcomes can be different.
Reform
Law Commission, Criminal Law: Consent and Offences Against the Person, 1994:
Suggested the defence should be available for assault, battery and ABH, so V can consent to injury but not serious injury (with the exception of sports).
Also recommended that horseplay should not allow use of the defence.
