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Consent to harm

Previous: Non-fatal offences against the person

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]. Where there is consent to battery, it is not a crime if the harm sustained is more serious than expected, according to R v Meachen [2006]. R v Gnango [2011] confirms that death cannot be consented to. Baker suggests some public policy considerations in favour of this point. A-G Reference (No. 6 of 1980) [1981] suggests that the highest level of harm which can be consented to is actual bodily harm, if there is a public interest in allowing that consent: street fighting, for example, is unacceptable, but according to R v Brown [1993], boxing is, and according to R v Wilson [1996], tattooing is.

Consent can be implied, such as in an organised sporting activity. However, In R v B [2013], a wife did not impliedly consent to being force-fed leaves by her schizophrenic husband, and according to H v CPS [2010], teachers do not impliedly consent to being assaulted by students.

Approaching consent

R v Clarence (1888) distinguished between acts not consented to and attributes attached to those consensual acts. The passing on of HIV was said not to negate consent to sexual intercourse, though the passing on of HIV would now be classed as a separate offence of inflicting grievous bodily harm, according to R v Dica [2004], unless this is also consented to. Similarly, in R v Richardson [1998], it was said that a dentist’s disqualification to practice was merely an attribute to a battery which was consented to, the operation itself was still consented to. R v Konzani [2005] appear to create a slight anomaly regarding sexually transmitted diseases, allowing there to be explicit consent to grievous bodily harm; although perhaps it is the possibility of infection which is consented to; the case clearly wishes to prevent the spread of diseases, but also needs to be accepting of people’s beliefs concerning contraception and wishes concerning reproduction.

Problems with consent

Given the inconsistencies between consent to sexual offences and consent to other non-fatal offences and as to the level of harm which can be consented to, the Law Commission suggested in 1995 that Parliament should intervene. Certainly, R v Tabassum [2000] is inconsistent with R v Richardson [1998], ruling an attribute to a breast examination to negate consent when a dentist’s attribute to a tooth-operation is an attribute. Perhaps public policy provides a more convincing explanation as to the these results than logic can. Finally, R v Golding [2014] makes an interesting point: if HIV must be explicitly disclosed for consent to the risk of transmission to be effective, is this true of all sexually transmitted diseases; particularly less-serious ‘diseases’?

Next: Sexual offences

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