Criticising Consent (1)

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  • Consent
    • Introduction
      • The Law Commission identified several problems with law on consent
      • This will only apply to Common Assault and Common Battery and never ABH unless it's involved within one of the public policy acceptions
    • Inconsistent
      • In Brown homosexual men were unable to please consent to their sado-masochistic activities due to it having no social value
        • They were charged with ABH despite the fact that no medical treatment was needed.
      • In Wilson, a man branded his name onto his wife using hot mental.
        • The judge allowed consent to be used even though the women needed medical treatment
      • From the examples shown it's clear that the law is inconsistent. This leads to uncertainty in the law because each outcome of the cases are different and so future outcomes cannot be predicted.
    • Public Policy Exceptions
      • Dangerous sports (like boxing) accept consent as a defence, however fighting on the street doesn't
        • This is confusing because some dangerous sports are legalised and others aren't. Some people may consider fighting a sport just like boxing.
      • Horseplay is a defence, and is used when people of a similar age use friendly violence towards each other.
        • This can also be applied when there's a mistaken belief in consent
          • In Aitken a man was wearing a fireproof suit and fell asleep and his friends then set him on fire causing serious harm. The defendants were allowed to plead mistaken belief in consent
            • If you compare this to the case of brown when all the men consented it's hard to find the values in the exception of horseplay as it would appear that the defendants in Aitken didn't have consent at all.
    • s.5 Sexual Offences Act 2003
      • If a girl is under the age of 13 she cannot consent to sex.
        • In the case of G,a boy genuinely believed that a girl he had sex with was 15, when in fact she was 12.
          • The boy was convicted of statutory rape despite the girl having lied about her age.
            • This is criticised because the boy had no mens rea to have sex with an under aged girl yet was still punished.


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