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Consent - Coggle Diagram
Consent
Consent EVALUATION
The application of the law in relation to whether consent is valid seems unclear, especially in terms of the victim’s necessary knowledge.
In cases of fraudulently obtaining consent conflicting conclusions have been reached. In Richardson (1998) a suspended dentist, who treated patients was found not guilty of assault. However in Dica (2004) the defendant, knew he was HIV positive had unprotected sex with thevictims who became infected and he was found guilty.
However, protection of young victims is not always maintained in UK law. The defendant often severely beat an 8 yr old with a garden cane; he argued such action was reasonable and necessary because the victim was a difficult child. A jury found him not guilty of ABH but the boy appealed arguing that the UK failed to protect him. The European Court of Human Rights found the UK failed to provide adequate protection to children in such situations (A v UK (1998)).
Mistaken belief in consent has been allowed. Defendants and the victim often indulged in horseplay and the defendants believed the victim consented when they dropped him from a balcony. They were convicted of S20 offences under OAPA 1861 but the Court of Appeal held their belief in the victim’s consent should have been considered (Richardson and Irwin (1999)).
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This seems in stark contrast to decisions in cases where genuine consent existed but was not allowed, such as in Brown (1993).
It can be argued that in the case of Wilson, a doctor was obviously concerned enough to report the matter to the police. Why then should the law not take the matter seriously? In Wilson it was clear that the wife wanted to be branded but there could be other cases where a partner merely submitted to the infliction of harm, through fear, perhaps or for love of the partner. Wilson does set the seal of approval on some violent acts, which may make it more difficult for the victim to protest.
The Law Commission has put forward that 'subsisting, free and genuine agreement should count as consent to a sexual act by another' ('Consent in sexual offences'). The Sexual Offences Act 2003 was later brought in but problems still exist in some cases.
Even the famous liberal European Court of Human Rights ruled in the Brown complaint that the men’s prosecutions were necessary in a democratic society for the protection of health. It was also maintained that the young could be corrupted by such actions, in the case of Brown, the perpetrators of the violence were middle-aged but the ‘victims’ were young men.
The Law Commission has expressed several views on the rules surrounding consent in relation to investigations into different aspects of the law.
Consent may be present, but may not be sufficient if the aim of the activity is to cause harm. There appears to be a fundamental difference among the judiciary about how to treat cases of bodily harm inflicted at the request of the victim (Brown / Wilson). Some argue that the prevention of such activities is an interference with the liberty of the subject and is too paternalistic in it’s approach. Increasingly, it is considered that what consenting adults do in the privacy of their homes is their own concern and the State should not intervene. Critics of this view would argue that any intentional infliction of pain degrades both the aggressor and the victim and can lead to an escalation of violence (Lord Templeman subscribed to this view). These critics believe that, even in these more permissive days, the courts have a duty to draw the line somewhere and state the limits of what is acceptable. If the participants then wish to continue and hope that they will not be discovered, then that is their affair.
Law Commission’s 'Consent in sexual offences', written in response to Government consultation, made the key recommendation was that '.. subsisting, free and genuine agreement should count as consent to a sexual act by another...'. The Government then implemented the Sexual Offences Act 2003. However, problems still exist in some cases.
The horseplay exemption meant defendants who had caused serious harm by setting on fire to the flame resistant clothing had their convictions quashed on appeal (Aitken). Some would argue that the defence should not be available for ‘horseplay’ so that the participants in such activities could not rely on the law to help them if the joke backfired. The Law Commission agrees law should set a limit to the injury to which a person may consent ('Consent and Offences Against the Person') and allow for public policy exemptions.
Law Commission’s 1994 consultation paper 'Consent and Offences Against the Person' discusses the view that a person's body is their own, and that the law has no place in dictating what can be done with it. However, the approach is rejected with the Commission highlighting illegal drugs as an example where the law limits complete bodily freedom.
However it can be seen as inconsistent that consent is allowed in situations where injuries are common. Boxing is a dangerous sport where opponents aim to injure one another, to the extent that a doctor must be ringside Watson v BBBC, but consent can apply.
Law Commission’s 1994 consultation paper 'Consent and Offences Against the Person' agrees the law should set a limit to the injury to which a person may consent but that certain special categories should be exempt from the law and proposes ritual circumcision, ear-piercing, tattooing and dangerous exhibitions should be included.
It seems grave harm is a factor in considering consent, when looking at the case of Barnes (2004) it could be based on the level of harm, with serious harm cases being denied the defence. So despite genuine consent a defendant who causes serious harm may still be liable. In Leach (1969) despite the fact the victim had organised to be crucified and the defendants were acting at his request, they were found guilty of S18.
Reform of Offences against the Person A Scoping Consultation Paper 2014 the LC recognised that the issue of consent is more complicated where physical harm is caused or intended. The report stipulates that the V cannot consent to the intentional or reckless infliction of a physical harm that is more than transient or trifling, except in particular contexts such as surgery or sport. The LC recognises that the effect on liability for crimes of violence is extremely complicated and is the subject of copious academic literature.
It is an area of the law that has attracted some criticism and calls for reform. The Law Commission has expressed several views on the rules surrounding consent, as part of different reviews. The relevant considerations are in what circumstances a person is able to give consent and whether genuine consent is given. There seems to be a lack of clarity over the reasons behind allowing or denying consent and when the defence can be justified.
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General
CoA - AG’s ref no 6 of 1980 - “ it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim”
Listed ways in which people do consent to some harm: games, surgery and dangerous exhibitions
2 teenagers had a fight, wrongful acquittal based on misunderstanding of the law
Lord Lane “it is not in the public interest that the people should try to cause, or should cause, each other bodily harm for no reason”
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Cannot consent to death, will amount to murder - Suicide Act 1961
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