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The defence of consent struggles to balance the needs of the individual with the constraints necessary in a
modern society to a fairly large extent. It can be argued that while the law tries to uphold public policy and
the needs of wider society, it doesn't take into account the individual's choice to consent.
Consent may be a defence to battery and other offences against the person however it is never a defence to
murder or situations where serious injury is caused. Consent is actually not a defence because where the
other person consents to being touched; there is no battery as there has been no application of unlawful
force. The defendant will typically argue that his victim consented to the harm that was inflicted and the
burden of proving the lack of consent rests on the prosecution. A good example demonstrating the defence
of consent is Donovan where the defendant caned a 17 year old girl for the sexual purposes. It caused
bruising and he was convicted of assault. However on appeal he claimed that the victim had consented fully
to the act which allowed his conviction to be quashed. An extreme case demonstrating the same point is in
Slingsby where the defendant ended up being charged with the offence of manslaughter.
To prove consent the consent must be real. It will be invalid if the victim lacks capacity, shown in the case of
Howard. Also the victim must be able to understand the act he has consented too. a case demonstrating this
is Burrell v Harmer where the defendant tattooed two boys aged 12 and 13 claiming the boys had consented.
The court ruled that because of their age they were unable to understand the nature opt act meaning the
defence of consent couldn't suffice. This supports the argument that the defence of consent does keep a
balance between the needs of the individual and the needs of wider society as it supports public policy and
ensures that the individual can only consent if they know the full nature and quality of the act.
The victim cannot be tricked into consenting either by being `'tricked'' or misinformed about the nature and
quality of the act. The cases of Clarence, Bolduc v Bird, Mobilio, and Richardson all discussed and picked up
on the words `nature' and `quality'. The words were explored further in the case of Tabassum which is where
a defendant examined the breasts of three women, he wasn't medically qualified and claimed he was trying
to help women and that he had no sexual motives. This case decided that the terms `'nature'' and `'quality''
can be distinguished from each other and the victim may be deceived by only one of the terms. In the case
of Tabassum, the victim was deceived as to the quality of the act and a victim must consent to both the
nature and quality of the act. Tabassum also throws doubt upon the earlier case dealing with `'nature and
quality'', particularly involving medical examination. It could be argued that because consent cannot be
gained by deceiving your victim it protects the individual's needs and protects the public too because it
allows the defendants to not gain the defence of consent meaning they will potentially get convicted. Also
because this of the defence of consent has been confirmed through many cases it could be said that the law
is now of the nature of being binding precedent meaning that a balance between the individual and society
should continue in future cases. This demonstrates that there is balance between the needs of the individual
and the wider needs of society.
Another element of the defence of consent is the fact that if a victim submits to the defendants conduct
through fear it doesn't mean the consent is real. A case demonstrating this point of law is Olugboja where
the victims has already been raped by the defendant's friend and seen her friend be raped by the same man.
When the defendant tried to have sexual intercourse with her she submitted. The court of appeal held that
there was a different between real consent and mere submission. It was for the jury to decide if the consent
was real. It can be argued again like the point above that this does keep a balance between the individuals
needs and needs of wider society because it protects the individual whilst protecting the public. However
allowing the jury to decide if the consent is real can cause issues in itself as they may misinterpret the case
or decide that the victim did consent which would be unfair if done through fear. Although this is a possibility
its more likely that a jury would sympathise with the victim and would potentially convict the defendant
meaning the balance is still kept between the two needs, arguing against this view of consent struggling to
keep a balance.
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Final element to succeed the defence of consent is that the consent must be fully informed. The victim must
have all the facts before consenting and uninformed consent mean the victim is not aware of all the details.
One of the cases which explored the `nature and quality' of an act was the case of Clarence where consent
to sex wasn't invalid simply because an unknown disease was being transmitted. If consent was invalid, the
outcome would have been rape.…read more
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In regard to surgery, the patient must consent to surgery (Corbett v Corbett). If the surgery is conducted
without a just cause or excuse, tis always unlawful even if consented to (Bravery v Bravery). Clearly where the
surgery is needed to save a patient's life or improve the patient's health in some way, then consent to any
operation is a defence to nay charge of assault.…read more
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The issue of a spread of a disease was a particular concern for the Lords although following Dica a fully
informed individual can now consent to contracting HIV. Brown was directly applied in the case of Emmett
where `'high risk'' sexual activity between a man and women resulted in the women suffering haemorrhages
to her eyes on one occasion and burns to her breast on another.…read more