Consent and violence

what is relevent harm?
harm that sets back the interests of another
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the 'moral magic' of consent
consent can transform something which is ordinarily bad into something good- Hurd, H 'The moral magic'
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autonomy is central to liberal theory and the way in which we assign construct blameworthiness
people are conceived as rational, self-governing and competent individuals
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but can people always be rational? e.g. when in fear, desire, lust, self-consciousness, power imbalence?
what does this say of the social world?
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is there always choice?
No- there may be a power dynamic with influences you, feeling unable to say no. You may not have a choice to steal bread if you are starving
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What do the structural inequalities in our society lead to?
the law may be structured to favour the power dynamic held by white men
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What is 'Affirmative consent'?
usually requires verbal confirmation' saying 'yes' etc.
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what is the problem with this?
because of structural inequalities, people may say yes when they don't really want to. Also verbal affirmations couldn't happen all the time- certain conducts relay affirmation e.g. actions
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the 'no' model
unless someone explicitly says no then we can assume consent. This requires negative verbal expression, but this presumes people will be able to say no, puts all the responsibility on the person being acted upon
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What is 'negotiated consent'?
We ought to see decisions as part of a negotiation- the law would penalise those who fail in their obligation to negotiate prior to acting on another
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What are the problems with negotiated consent?
doesn't recognise that when we negotiate we are in power relationships, e.g. negotiating for a job, someone has more power so you aren't equal. Also there is a lack of evidence- how do you prove there was a negotiation?
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What is informed consent?
What would we want to know before agreeing to something? this is often used in context of medical interactions; they have to tell you what they're going to do so you can consent
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What is relational consent?
emphasises relationality of our interactions e.g. social context of decisions, relationship between parties, transaction between the parties prior to any consent being given,
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the model is sceptical of what consent is and looks to promote autonomy by requiring careful analysis of circumstances
autonomy is not synonymous with choice but promoting ability to live as you wish
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at what moment does consent take place?
if consent isn't verbal, when when can you tell? must consider the roles that inferences and infer when consent takes place
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What is positive autonomy?
We should be able to do what we want with out bodies
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What is negative autonomy?
having the right not to be attacked or interfered with
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What does consent mean?
there is no crime to begin with because there is no violation of rights
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so what are the questions on whether consenting to giving over the rights of your body to someone else?
Is the behaviour morally acceptable? Is autonomy more important than morality?
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What is 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)
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R v Donovan: [1934] 2 KB 498
an exception to the general rule is cases of rough and undisciplined sport or play, where there is no anger and no intention to cause bodily harm…In such cases the act is not itself unlawful, and it becomes unlawful only if the person affected by it-
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(said by Swift J in Donovan
g
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AG’s Ref (No.6 of 1980) [1981] QB 715
two teen boys had a fight, appealed charge of ABH because they both consented, judges said that it isn't in public interest for people to be able to consent and try to cause each other harm for no good reason
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Cases study one: R v Jones (1986) 83 Cr. App. R. 375
Six boys aged between 14 and 17 who injured two other boys by “grabbing”, “marching” and finally throwing them up high in the air and letting them fall to the ground. Caused a ruptured spleen and a fractured arm. The defendants claimed that it was a
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joke and that the victim’s thought so too.
g
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They were convicted of ABH, convicted in basises:
1. Consent to rough and undisciplined play, where there is no intention to cause injury must be a defence. 2. In absence of consent in fact, genuine belief in consent is a defence. 3.it is irrelevant whether a genuinely held belief is reasonably held
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What does Jones infer?
that boys have always indulged in rough and undisciplined play amongst themselves. The non-consenting child is protected by the criminal law; unless the other rough and undisciplined players believe that he is consenting, even if in reality he is not
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R v Aitken [1992] 1 W.L.R. 1006
newly qualified RAF officers. On the night in question, they were at a party at the completion of their flying training. They drank a lot. There was some horseplay that was treated it as a joke
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Gibson (V) went to bed and the defendants set fire to V's fire resistant flight suit. In his drunken state he could only resist weakly. Flames flared up rapidly and although the appellants took immediate action to put out the fire but her suffered 35
degree burns.
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They were convicted of causing a serious harm and appealed on basis of consent.
Here the court said that V stayed with his friends during the horseplay, so he consented to something of the nature. No harm was intended to come to him. Says Ds thought that V consented to the horseplay
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What was this compared to?
Sports- Gibson consented to join the 'game'
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R v Barnes [2004] EWCA Crim 3246
A foul during an amateur football match that caused broken ankle. Barnes claimed that the tackle was a fair, if hard, challenge and that any injury caused. He was accidental but was convicted of s.20 (OAPA) GBH
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On what grounds did Barnes appeal?
1. Directing the jury that the actions of the appellant were unlawful if not done "in legitimate sport", whilst leaving it entirely to the jury to decide what constituted legitimate sport, 2. Allowing his definition of "recklessly" to depend entirely
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upon what the jury considered "legitimate sport" or "generally accepted in a football game",
3.3. Failing to explain to the jury the concept of consent, the relevance of a genuine attempt to play by the rules and the law relating to accident as a defence.
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What did Lord Woolf say here?
‘...in highly competitive sports, conduct outside the rules can be expected to occur in the heat of the moment…” therefore, the criminal law should only get involved where the incident is something quite unexpected
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R v Richardson and Irwin [1999] 1 Cr App Rep 392
Drunken university students who seriously injured one of their number after ‘bundling’ him over a balcony 12 feet off the ground.
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The prosecution case was that the appellants had together acted both unlawfully and maliciously, in the sense that they each foresaw dropping the complainant would or might cause harm and that they nevertheless took the risk of doing so.
The appellants' case was that the complainant had consented to the horseplay and that his fall was an accident.
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The defendants were convicted of GBH and their appeal hinged on a jury direction. The recorder directed the jury that they had to consider each appellant's intention on the basis of a reasonable (ie. not under the influence of drink)
The appeal was allowed, holding that the jury should have been directed to decide not whether the reasonable sober man would have realised that injury might result, but whether these particular appellants would have foreseen, had they not been drinki
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What do these cases show?
view of what it is to become a man. As David Gurnham notes, ‘it remains an idealisation of ‘manhood’, explicitly gendered, that continues to be used as the gender signifier of equality between parties to ‘friendly’ violence.’
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What do Keating and Clarkson argue?
bully's charter. It is extremely far-fetched to suggest that boys being held by several others to prevent them running away are genuinely consenting to being thrown in the air.
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Other cards in this set

Card 2

Front

the 'moral magic' of consent

Back

consent can transform something which is ordinarily bad into something good- Hurd, H 'The moral magic'

Card 3

Front

autonomy is central to liberal theory and the way in which we assign construct blameworthiness

Back

Preview of the front of card 3

Card 4

Front

but can people always be rational? e.g. when in fear, desire, lust, self-consciousness, power imbalence?

Back

Preview of the front of card 4

Card 5

Front

is there always choice?

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Preview of the front of card 5
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