These are non fatal and non sexual behaviour. Sexual behaviour is not always a sexual offence.
1) what is violence?
2) how much of a problem is it? 1.3 million violent incidents in last crime year- ending June 2014. Huge range of offences. Sometimes robbery is included. 2 in 100 adults were a victim- 2%. Lots lower than 20 years ago where it was 66% higher. In urban areas police show increase in 11% from previous year.
B) the ladder of offences-
1) common assault and battery- combined, although they are separate and have different results. Under reported. s39 of Criminal Justice Act 1988.
i) assault- S47 Offences Against the Person Act 1881 provides for max sentence of 5 years imprisonment. In magistrates court the maximum is 2 years. Actus reus- victim to apprehend immediate unlawful force. Mens rea- intends/is reckless that the victim will apprehend the force.
R v Ireland 1997- Steyn- 'a thing said is a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence... I would reject the proposition that an assault can never be committed by words.' 'the question of immediacy involves questions of fact within the province of the jury. Take now the case of the silent caller. He intends by his silence to cause fear and is so understood. The victim is assailed by an uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the callers arrival at the door may be imminent. She may fear that possibility of immediate personal violence.'
Hope- 'silent telephone calls of this nature are just as capable as words or gestures... of causing an apprehension of immediate and unlawful violence.' It is an undeniable threat.
R v Horseferry Road Magistrates ex parte Siadatan 1991 and DPP v Ramos 2000.
What makes the use of force 'unlawful'? If you consent to the force there can be no assault, self defence making a citizens arrest is lawful. A person shouldnt have to be weary of violence.
No stautory definition. Actus Reus- touched or applied force to the victim. Mens rea- intended or reckless to the application of force. R v Venna 1975.
CPS guidelines- scratches and grazes, minor bruising and swelling, superficial cuts and a black eye. DPP v Haystead 2000- force doesnt have to be directly inflicted as long as through a medium controlled by D. This was a policy decision.
Collins v Wilcock 1984- 'mere touching is not sufficient'. Need to go beyond normal touching. Dismissed as cannot criminalise everyday touching.
2. Actual Bodily Harm- S47 OAPA 1861- 'whosoever shall be convicted upon an indictment of any assualt occasioning actual bodily harm shall be liable... term not exceeding five years.' Aggrevated assault. Have to actus reus of assault or battery.
R v Lewis 1970 and R v Savage 1992. Mens rea- foresee harm intended or for assault or battery. Half mens rea.
i) the meaning of 'actual bodily harm'- R v Dononvan 1934 and R v Chan Fook 1994.
CPS Charging Standard- temporary loss of sensory functions, extensive or multiple bruising, minor fractures, minor cuts requiring stitching, and psychiatric treatment that is more than mere distress or panic.
DPP v Smith 2006- 'physical pain consequent on an assault is not a necessary ingredient of this offence.' 'Hair is intrinsic to each individual and to the identity of each individual... some regard it as their crowning glory. Admirers may so regard it in the object of their affections.'
3) Grievous Bodily Harm- S18 OAPA 1861: 'causing GBH' (aka wounding with intent' 'whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grevious bodily harm to any person... to imprisonment for life.'
s20 OAPA 'infliciting' GBH (malicious wounding)- 'whosoever shall unlawfully and maliciously wound or inflict any grevious bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable... to a term not exceeding five years.' much less serious. Hard to distinguish difference.
i) section 20- 'inflicting' wound/ GBH- much less serious. Mens rea- DPP v Parmenter 1992 and DPP v A 2001.
Actus reus- a) wounding- C (a minor) v Eisenhower 1984
b) grevious bodily harm- DPP v Smith 1961. CPS charging standards- injury amounting in permenant disability or permenant loss of sensory function, broken or displaced limbs such as fractured skull, compound fractures, broken cheeks, jaws ribs etc, injuries which result in more than minor permanent disfigurement, injuries that cause a substantial loss of blood, usually necessity a transfusion and injuries resulting in length treatment or incapacity.
R v Bollom 2003, R v Birmingham 2002 and R v Burstow 1997.
c) inflicting- R v Wilson 1984 and R v Burstow 1997.
ii) section 18: 'causing GBH'- wider meaning than inflict. GBH can be caused by an omission, but cant be inflicted by omission. R v Burstow 1997.
4. Proposals for Reform- Legislation is from 1861 Out of date- archaic language. Follows victorian legislative approach.
Current Law Commission Scoping Consultation- no clear hierarchy, reform may include disease transmission and efficiency. Need to keep up to date.
C) Consent and offences against the person-
some important questions- should the law promote positive autonomy?
Two forms of autonomy- physical integrity. Positive autonomy- right to do whatever we want with our body. Negative autonomy- right not to be attacked or interferred.
The relationship between morality and autonomy- morality over autonomy= criminalised. Autonomy over morality= not criminalised. Need to balance what others can.
1) Consent, OAP and the Law- some harmful practises are allowed eg sports and tattoos.
R v Brown 1993- Horseplay 'manly diversions, intended to give strength, skill and activity and may fit people for defence, public as well as personal. (Sir Michael Foster 1792.)
R v Jones 1986 and R v Aitken 1992- 'the fact Gibson struggled, albeit weakly through drink, to avoid the attentions of the three during the incident in question should not, it was submitted on the appellants behalf, be taken in isolation. The totality of the circumstances, his knowledge of the course which celebration evenings such as the one in question was likely to take and his continued presence with the others demonstrated an acceptance by him that horseplay...
of the nature perpetrated upon him might well take place.
R v Barnes 2004- 'in highly competitive sports, conduct outside the rules can be expected to occur in the heat of the moment.' Lord Wolf.
AG's Ref No 6 of 1980 1981- 'it was not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter' Lane.
D) case study: sexually motivated violence:
R v Brown 1993- 'the assertion was made on behalf of the appellants that the sexual appetites of sadists and masochists can only be satisfied by the infliction of bodily harm and that the law should not punish the consensual achievement of sexual satisfaction. There was no evidence to support the assertion that sado masochist activities are essential to the happiness of the appellants or any other participants but the argument would be acceptable if sado masochism were only concerned with sex, as the appellants contend. In my opinion sado masochism is not only concerned with sex. Sado masochism is also concerned with violence. The evidence discloses that the practises of the appellants were unpredictably dangerous...
and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious and worthless.' Templeman
1) should consensual sado masochism be criminalised? Victims in Brown were young, homeless drug users and were also convicted. Those who are violent in sex tend not to be in other areas of life.
YES- it is harmful to the participants, to vulnerable persons, it could lead to greater harms, it harms society and it is dehumanising.
'Whilst there were no spectators to degrade or be degraded, we might still say that the participants were degrading or dehumanising themselves and each other. This would involve an appeal... to a normative conception of humanity- of what it is to be human and to recognise the humanity in other or in oneself, the defendants were trying precisely to degrade and humiliate each other. They were enacting rituals of torture, which treat the person as tortured as, or trying to reduce him to, a humilitated and degraded animal. The conduct was, no doubt, set in a larger context in which they treated and respected each other as human equals, and they degraded each other in this way only because each freely consented to it. Nonetheless, what they consented to and sought was treatment that, in itself denied their humanity.' A Duff 2001.
YES- normalises domestic violence. R v Wilson 2996 and R v Emmett 1999.
NO- private morality is not the business of the criminal law- 'it must be emphasised that the issue before the House is not whether the appellants conduct is morally right, but whether it is properly charged under the Act of 1861. When proposing that the conduct is not rightly so charged I do not invite your Lordships House to endorse it as morally acceptable. Nor do I prounounce in favour of a libertarian doctrine specifically related to sexual matters. Nor in the least do I suggest that ethical pronouncments are meaningless, that there is no difference between right and wrong, that sadiam is praiseworthy, or that new opinions of sexual morality are necessarily superiour to the old, or anything else of the same kind. What I do say is that these are questions of private morality, that the standards by which they fall to be judged are not those of the criminal law and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards and have them enforced against him by moral pressures exerted by whatever religious or other community to whose ethical ideals he responds. The point from which I invite your Lordships to depart is simply this, that the state should interfere with the rights of the individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large...
Thus whilst acknowleging that very many people if asked whether the appellants conduct was wrong would reply yes repulsively wrong, I would at the same time assert this does not mean the prosecution of the appellants under S20 and 47 of the OAPA 1861 is well founded' Mustill.
Liberalism wouldnt allow the prosecution, shouldnt have state interference as it is an assault on individual freedom.
NO- it is a meaningful sexual activity- they get off from the sex part, not just the violence on its own. Difference between Brown and Wilson- branding is likened to tattooing.
2) what role should be played by immorality? 'in principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty.' Templeman
'For our part, we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authoristation, and the appellant was as free to engage in it as anyone else. Lord Justice Russell in R v Wilson 1996
i) social and moral standards regarding 'cruel' behaviour
ii) the threat of HIV transmission.
3) would the decision differ today?
i) Fifty Shades of Grey- 'an instruction manual for an abusive individual to sexually torture a vulnerable young woman' 'misogynistic ****.' 'It really is about a domestic violence perpetrator, taking someone who is less powerful, inexperienced, not entirely confident about the area of life she is being led into, and then spinning her a yarn. Then he starts doing absolutely horrific sexual things to her, he gradually moves her boundaries, normalising the violence against her. Its the whole mythology that women want to be hurt.' Clare Phillipson, Director of Wearside Women in Need.
The significance of safewording- R v Lock
Summary of key issues.
Risky sex and disease transmission
Issue in law commission consultation paper. Rising prosecutions.
R v Dica 2004 and R v Konzani 2005- 'if an individual knows that he is suffering from the HIV virus conceals this stark fact from his sexual partner, the principle of her personal autonomy is not enhanced if he is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse. On any view, the concealment of this fact from her almost inevitably menas that she is decieved. Her consent is not properly informed and she cannot give an informed consent to something of which she is ignorant.' Counted as violence offence, not sexual offence. Many think should be criminalised.
1) should the transmission of HIV be criminalised?
YES- we need to protect the victims autonomy- negative autonomy. Need full information to make a choice. 'The recognition in R v Dica of informed consent as a defence was based on but limited potentially conflicting public policy considerations. In the public interest, so far as possible, the spread of catastrophic illness should be avoided or prevented. On the other hand, the public interest also requires that the principle of personal autonomy in the context of adult non violent sexual relationships should be maintained. If an individual who knows that he is suffering from the HIV virus conceals this stark fact from his sexual partner...
the principle of personal autonomy is not enhanced if he is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse... the concealment of the fact from her almost inevitably means she is decieved. Her consent is not properly informed ans she cannot give an informed consent to something of which she is ignorant... silence in these circumstances is incongruous with honesty, or with a genuine belief that there is an informed consent.' Lord Justice Judge in R v Konzani- eg evne if you should shut your bedroom window but dont, the buglar is still liable for his crime.
NO- the victim consented to the risk- people understand the risk. Paternalistic to stop people taking risks. 'where a person is aware of the risks associated with unprotected sex and has not satisfied him or herself that a partner is HIV negative (or free from other serious sexually transmitted infections) the defence of consent should, in principle, be available. The reason for taking such a position is primiarily that the transmission of HIV should be seen first and foremost as a public health issue and that everyone, not just those who are HIV postive, has a responsibility for minimising the spread of the virus.' Weait 2005
'If a person agrees to particapte in the kind of sex which carries the risk of HIV infection (and most sex is safer than safe) and is infected, we must question whether it is right to attribute sole responsibility to and punish the person who transmits the virus, when that would...
not have happened but for the other persons willingness to accept the risk.' Weait 2001- thinks that it shouldnt be criminalised.
'These participants are not intent on spreading or becoming infected with the disease through sexual intercourse. They are not indulging in serious violence for the purpose of sexual gratification. They are simply prepared, knowingly to run the risk- not the certainty- of infection, as well as the other risks inherent in and possible consequences of sexual intercourse, such as and despite the most careful precautions- unintended pregnancy.' Lord Justice Judge in R v Konzani
'The problems of criminalising the consensual taking of risks like these include the sheer impractiability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationship are preminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd this should be confined to risks taken in the context of sexual intercourse,while they are nevertheless permitted to take risks inherent in so many other aspects of every day life' eg a mother of child kissing it even though it has a serious contagious illness.- Lord Justice Judge in R v Konzani.
It is applied inconsistently- you wouldnt prosecute someone with the flu going out in public.
NO- this would cast the net of liability too wide
NO- the law is targetting marginal groups- initial prosecutions were of black african immigrants. Targets promiscuity. Impossible for it not to be applied in a non prejudicial way.
NO- places unreasonable duties to disclose on potential sexual partners- knowledge is criminal liabilty. Might not get tested to avoid this. HIV can now be treated.
NO- criminalisation will deter people from being tested- both parties may have failed equally to prevent transmission. Not good prospect, increased risk if people dont get tested.
2) a slippery slope to widening criminalistion?
R v Golding 2014- 'because it was in a relationship, it was particularly mean and one which amounted to a betrayal- a betrayal in a relationship in which you professed love... the injury you caused by this infection is at least or more serious than injury leaving a scar because it carries continued recurrence, extreme discomfort and consequences for relationships she will have in the future.' Judge Michael Fowler- sentencing
Herpes seen as less serious but still prosecutable. Rejected appeal- expected to go to ABH. Can cause serious harm so left to jury. It is reckless.
a) GBH inflicted for none sexual motives (horseplay) is generally lawful irrespective of V's consent.
b) GBH in the form of injury is always unlawful if inflicted with a sexual motive irrespective of V's consent.
c) GBH in the form of HIV is always unlawful if transmitted without D having gained V's informed consent to the transmission.
d) GBH in the form of HIV is always lawful if transmitted with V's informed consent.
There is disparity between law in books and in practise. B may not always be punished.
3) a need for paternalism? when should state step in? Body dismorphia- allow people to have amputations they dont need.
4) where should limits of consent lie? Inconsistent in this area. Rule of law- what is the law?