Evaluation Of Consent Flashcards
Point: The law on consent is unclear and inconsistent
Development: It’s confusing when consent is a valid defence. Sometimes it’s accepted, sometimes not, even when the victim agrees. This makes it hard for defendants to know where they stand.
Impact: Defendants may be found guilty even if the victim agreed, making outcomes unpredictable.
Example: In Leach (1969), the victim agreed to be crucified but the court still found the defendants guilty.
However: In Aitken (1992), serious harm from horseplay was allowed under consent, showing inconsistency.
Point: Consent isn’t always valid for vulnerable people
Development: The courts often decide people like children or those who don’t fully understand the act can’t give proper consent.
Impact: This helps protect vulnerable victims but creates debate on who decides if someone can consent.
Example: In Burrell v Harmer (1967), two teenagers couldn’t consent to tattoos due to their age and understanding.
However: In Wilson (1996), branding was seen as personal adornment, and consent was accepted.
Point: Serious harm limits the use of consent
Development: If the act causes serious harm, consent often isn’t allowed, especially if it’s not seen as in the public interest.
Impact: This limits personal freedom even when adults willingly take part in risky acts.
Example: In Brown (1993), consent was rejected in sadomasochistic acts, as they were seen as too harmful.
However: Boxing and Aitken (1992) (horseplay) show serious harm can still be consented to in some areas.
Point: The law protects public interest more than personal freedom
Development: Courts focus on protecting people rather than letting them choose what to do with their bodies.
Impact: This means personal choice is often ignored if the law sees the act as harmful or against public interest.
Example: In AG’s Ref (No 6 of 1980), the court said causing harm isn’t in the public interest, even with consent.
However: Lord Mustill in Brown said the law should only interfere with personal choices when necessary.
Point: Consent doesn’t apply to euthanasia
Development: People can’t legally consent to being killed, even if they are seriously ill or want to die.
Impact: This protects vulnerable people but raises ethical issues around the right to die.
Example: In Pretty (2002), the court ruled there’s no right to assisted suicide under human rights law.
However: The law may seem harsh for people with incurable conditions who want to die with dignity.
introduction for evaluating the defence of consent?
The defence of consent is complex and inconsistent. It only applies in limited situations, often depending on the level of harm, the nature of the act, and whether the victim can give valid, informed consent. The law often prioritises public interest over personal freedom, which raises debate over fairness and clarity.
Conclusion for evaluating the defence of consent
Overall, the defence of consent is unclear and often unfair. Courts allow it in some harmful acts but reject it in others, even with genuine consent. This inconsistency shows a need for reform to better balance personal freedom, public interest, and protection of the vulnerable.
