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Outside of the recently reformed law on sexual offences, consent is not a structured area of law: old law has been asked to deal with new problems, such as the transmission of sexually transmitted diseases, sadomasochism and unqualified medical practitioners. Many have suggested that Parliament should intervene.

Defence or denial of actus reus?

An important question raised by consent is whether it negates the actus reus of an offence, or is a defence. The leading case on consent, R v Brown [1993] neglected to answer this question. This is important in cases such as R v Dadson (1850), where consent (of the state) to shoot the victim would have caused the defendant to be acquitted if consent could have negated the actus reus of his offence. R v Donovan (1934) also treated consent as a defence. The common law approach of treating consent as a defence is inconsistent with the law on sexual offences: section 1 of the Sexual Offences Act 2003 makes a lack of consent part of the actus reus of rape, as if it were a defence, every act of sexual intercourse could be prosecuted as rape with the requisite actus reus.

What level of harm can be consented to?

A battery can certainly be consented to: Collins v Wilcock [1984] allows batteries which take place in the course of everyday life to be consented to, and batteries sustained during organised sporting activities are also consented to, according to R v Barnes [2004]...

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