Consent

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Consent
Introduction
Consent often involves balancing the freedom of the individual against considerations of public police as interpreted
by the courts. It therefore tends to attract a good deal of debate.
General Principles
Consent is (depending on the circumstances) a defence to:
1. Non-Fatal Offences Against the Person.
2. Sexual Offences
It is never a defence to murder
R (on the application of Pretty) v. DPP (2002)
Diane Pretty was terminally ill with Motor Neurone Disease. She wanted to obtain the right to request
medical help to die at a time of her choosing; particularly to be given a guarantee that her husband would
not be prosecuted for assisting her suicide.
The DPP was unable to make such a guarantee.
Consent is not a defence but a justification
Donovan (1934)
D caned a 17-year-old girl for sexual gratification. This caused bruising and he was convicted for indecent
assault and a common assault. D appealed on the basis that V had consented to the contact. CA quashed.
In general consent is not available as a defence where ABH is intended, or likely to be caused. There are
public policy exceptions however.
Slingsby (1995)
D was involved in sex which was described as `vigorous.' During this, D's signet ring cut into V's leg and
this led to blood poisoning from which she died.
Consent means no battery or other form of assault is caused and thus D cannot be G of unlawful act
manslaughter.
Consent Must be Real
Submission is not the same as consent
Olugboja (1982)
V had already been raped by D's companion ­ and seen her friend raped by the same man. When D tried
to have sex with her, she submitted. D claimed this submission was consent.
There is a difference between consent and submission. It is for the jury to decide if the consent is real.
Consent by Fraud
Fraud does not necessarily negate consent. It only does so in two situations. If it deceives V as to:
1. The identity of the person, or
2. The `nature' or `quality' of D's act.
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Richardson (1998)
A dentist did not tell her patients that she had been struck off and did such bad dentistry that it amounted
to ABH. Although the patients would not have consented to treatment if they had known she had been
struck off the list for incompetence.
D was found NG as she had not deceived them about her identity or what she was doing.…read more

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Brown (& Others)
HL upheld convictions for ABH and wounding for acts done in private between a group of consenting male
sadomasochists.
Consent could not be used on a charge of assault.
Why do we Need a Defence of Consent?
Consent is usually a defence in the following situations:
1. Everyday contacts in ordinary life.
2. Properly conducted sports and games.
3. Surgery including dentistry.
4. Lawful chastisement.
5. Tattooing and piercing.
6. `Normal' sexual activity.
7. `Horseplay'.…read more

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Donovan (1934)
D caned a 17-year-old girl for sexual gratification. This caused bruising and he was convicted for indecent
assault and a common assault. D appealed on the basis that V had consented to the contact. CA quashed.
In general consent is not available as a defence where ABH is intended, or likely to be caused. There are
public policy exceptions however.
Brown (& Others)
HL upheld convictions for ABH and wounding for acts done in private between a group of consenting male
sadomasochists.…read more

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