Consent A2 Criminal Law OCR

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Defence of Consent

Negates some OAPA. Occasionally leads to controversial decisions as in Slingsby (1995) where there was no conviction when vigorous sexual activity involving a ring led to blood poisoning and death.

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Elements of Consent

- Must be real
- Cannot be induced by fear
- Can be implied for the reality of everyday life
- Can be implied for contact sports within the rules of the game
- Can be given for minor injuries, with limits set by public policy
- Can be an honest mistake as to a belief in consent
- No consent to death

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Donovan (1934)

D caned girl for sexual gratification, causing bruising. Convictions for common assault and indecent assault quashed as consent given

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Tabassum (2000)

D measured women's breasts saying making medical database. Women consented believing D medically qualified or doing medical training. D committed offence as Vs only consented thinking it was a medical examination, consent not real

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Dica (2004)

D infected 2 women with HIV after having unprotected sex. D did not tell the women he was HIV positive. D committed offence as women did not give real consent

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Olugboja (1982)

V ***** by D's companion. She had seen D **** another woman so allowed him to have sex with her and D said she consented. Conviction upheld, CoA held crucial difference between real consent and mere submission

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Barnes (2004)

D made late tackle on player during amateur game leading to serious injury. Conviction quashed as not grave enough to be criminal

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Wilson (1996)

D branded wife's buttocks with his initials using hot knife and she needed medical treatment. No offence as she asked him to do it, branding is like tattooing and prosecution not in public interest

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Jones (1986)

2 boys tossed into air by older boys, suffered broken arm and ruptured spleen. Conviction quashed, could consent to rough horseplay based on honest belief

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Aitken (1992)

RAF officers poured white spirit over drunk and sleeping friend wearing fire-resistant flying suit who suffered major burns. Convictions for S20 quashed as jury should be left to decide if mistaken belief in victim's consent

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Emmett (1999)

D and girlfriend had sex which resulted in haemorrhage to girlfriend's eye and burns on breast. Conviction upheld as harm caused was more than transient or trivial

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AO2 Discussion Points

- Justificatory defence, avoids greater harm and promotes human autonomy but balanced by public policy
- Without consent, contact sports would be illegal; can keep sports cases out of courts but injury must occur within the rules as sports players are also role models
- Essential for medical procedures, even if resulting harm is intentional and serious, in order to save life or improve quality of life. Makes emergency treatment possible if patient is unconscious
- Public interest is difficult to balance in sexual activity cases (Brown/Wilson)
- For some cases involving sexual behaviour consent is not allowed, yet some cases involving serious injury from horseplay permit consent
- Euthanasia debate remains unsolved
- An example of conduct not in the public interest and criminalised, even if consented to, is the Prohibition of Female Circumcision Act 1985

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