Lord Lane states: “it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim.” Dr Jepson argues that: “Consent should never be a valid defence when it comes to actual/serious offences against the person.”

Written by Kelly Butterworth (Feb 2006)

Consent can be used as a defence to non fatal offences against the person, such as assault and battery which lead to actual and serious harm towards another and all sexual offences including decent assault and rape. The defence is limited to certain circumstances. The defence of consent is never a defence to murder.

I agree with both the statements put forward, to an extent as it can be seen that there are areas in which both rule would be inappropriate to use in certain situations and circumstances.

The view of Lord Lane is that if the alleged victim has given consent to be assaulted by the accused, no offence will have been committed and the defendant would be entitled to a full acquittal.

This is shown in the case of Attorney General’s References (No6 of 1980)1981, Lord Lane stated that ‘It is an essential element of an assault that the act is done contrary to the will and without the consent of the victim’. It is however felt that this statement is too general and there are exceptions in which this rule would not be appropriate for. He also stated that ‘It’s not in the public’s interest that people should try to cause, or should cause, each other bodily harm no reason.’ The case of Coney 1882 illustrates this point as the defence of consent could be used where a fist fight in the street took place, even though the parties had agreed to settle their differences this way.

The view of Dr Jepson is that ‘Consent should never be a valid defence when it comes to actual/serious offences against the person,’ suggests that the defence of consent should never, under any circumstances, be allowed for non fatal offences against the person. The advantages of such a rule would be that it would provide public protection especially when consenting to such acts which could result in the individual’s death. The one main problem with this view is that Dr Jepson fails to take into account consent as a defence in certain situations which are accepted by the House of Lords as a valid defence. This situations were described in Attorney General Reference (No6 of 1980)1981, ‘properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc’.

Contact games and sports

Consent is usually a defence to any injury that is occurred in a sporting event even if it was actual bodily harm. It is said that by deciding to play the game the victim has consented to the infliction of any kind of force that is normally involved in such games. An example of this is a rugby player cannot claim unlawful battery when he is tackled with the ball. In the case of Billinghurst (1978), the defendant punched an opposing player in the face in an off the ball incident during a rugby union match in South Wales. The victims jaw was fractured in two places and the defendant was convicted of inflicting Grievous Bodily Harm (GBH).

Brown clearly affirmed that boxing and wrestling were lawful activities in which the individual is consenting to harm which occur within the rules of the game. In Moore (1898) it was said that ‘No rules or practice of any game whatever can make lawful that which is unlawful by the law of the land.’ This means that where an assault is alleged to have taken place during the play of a game, this should be assessed independently of the rules. The case of Cey (1989) provided a list of criteria that could be used to determine the extent of implied consent in sport and games. This included; the nature of the game played (professional or amateur), the nature of the act and their surrounding circumstances, the degree of force employed the degree of risk of injury and the state of mind of the accused.

This area poses some problems as it relies on implied consent and it could be difficult in some circumstances to determine exactly how far the actions of the participants may be considered to have been consented to. If Dr Jepson’s view was used as the rule, the defence of implied consent would not be allowed which would result in a large number of prosecutions.

Surgery

Lord Templeman in the case of Brown and others (1994) stated that ‘Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity.’ Therefore the defence of consent can normally be raised and also include cosmetic surgery and ear-piercing. Again, this goes against Dr Jepson’s view because if consent was not a defence allowed by the medical profession, doctor and surgeons would be liable for any surgery that they carried out even though it would be in the victim’s best interests. It would therefore mean that doctors and surgeons would not carry out operations that could be life saving.

Lawful Chastisement

At common law, parent are allowed to use reasonable physical force to punish their children but cannot be inflicted ‘for the gratification of passion or rage or if it be immoderate or excessive in its nature or degree’, as decided in Hopley (1860). The case of Watkins (2001) also allows teachers to use physical force to control unruly pupils. In the case of A v United Kingdom (1998) the defendant was charged with cause actual bodily harm after beating his nine year old stepson with a stick. He was later acquitted after using the defence of chastisement. The European Court of Human Rights held that Article 3 of the European Convention of Human Rights, prohibiting torture or inhuman and degrading treatment, had been violated.

Horseplay

The courts have been prepared to accept consent as a defence for this area even though the result is serious harm to the victim. In the case of Jones and others (1986), the defendant (a schoolboy) and other children were playing and threw the victim up in the air, the victim was dropped and suffered a broken arm and ruptured spleen. His defence of consent was allowed as it was held that the victim had consented to the rough horseplay. Also in the case of Aitken (1992), the defendants were members of the RAF and set fire to the victims ‘fire resistant’ suit and as a result the victim received severe burns. It was held that this could fall within the rough horseplay exception and the victims consent to provide a defence.

This exception also provides another issue that Dr Jepson’s view does not account for, as his view does not allows consent as a defence for horseplay. However, in the case of Aitken, I think that the defendants were let off too lightly as their actions were dangerous and could have resulted in the death of the victim. Therefore I think it is fair to say that the scope of consent as a defence in such situation should be more limited.

Tattooing

The tattooing and body piercing for the purpose of personal adornment are permitted. In Wilson (1996) the Court of Appeal held that ‘ do it yourself’ tattooing, where the husband, using a hot knife, branded his initials on to his wife’s buttocks was included within the exception. Lord Russell stated that ‘Mrs Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant…. We cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. Again this exception is excluded by Dr Jepson’s view and is more supportive of Lord Lane’s

Sexual Activity

Consent as a defence is usually accepted to potentially offences committed during sexual activity. This is seen in the case of Slingsby (1995), where the defendant penetrated her vagina and rectum of a girl he met at a night club with his hand with her consent. However, she suffered internal cuts caused by a ring on the defendant hand. These injuries were neither intended nor foreseen by the defendant. The victim was unaware of how serious these cuts were and she died of septicaemia. The defendant was acquitted as it was clear that all of the defendants acts on the night in question where all consented to and therefore there was no assault.

This also goes against the view of Dr Jepson.

There are a few areas in which Dr Jepson’s may be accepted. These are sado-masochism and biological GBH.

Sado-masochism

In the case of Brown and Others (1994), the defendants were member of a sado-masochistic homosexual group, who willingly and enthusiastically participated in acts of violence against each other for sexual pleasure. Many of these acts took place in rooms designed as torture chambers. Such activities included branding with wire or metal heated by a blow lamp and genital torture. The instruments were sterilised and the wounds dressed so none of the men suffered permanent injury. All the activities were carried out with the consent of the ‘victim’. Police discovered a video tape which detailed these activities and the participants were convicted of offences under section 47 and 20 of the Offences Against the Persons Act 1861. The Court of Appeal stated that ‘The satisfying of sado-masochistic libido does not come within the category of good reason nor can the injuries be described as merely transient or trifling’. The House of Lords said that ‘The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation if victims. Such violence is injurious to the participants and unpredictably dangerous.’ The majority of Law Lords decided that the defence of consent did not apply.

This supports Dr Jepson’s view that ‘consent should never be a valid defence for non fatal offences against the person.’ There are many arguments that have been presented against allowing the defence of consent for sadomasochism. These are that there are potential dangers of such activities, moral objections to the defendants’ activities and the possible corruption of young people as a result of such activities. It has also been argued that criminalising sado-masochistic acts constituted a breach of Article 8 (1) of the European Convention of Human Rights, which provides that ‘Everyone has the right to respect for his private and family life’. However, Article 8(2) adds that public authorities may interfere with the exercise of this right provided that it is necessary in the interests in national security or public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.  

Biological GBH

In the case of Clarence (1888) the defendant had sex with is wife without telling her that he had a venereal disease, although he was aware of it. It was argued that her consent for intercourse was not valid, as she had she been aware that he was suffering from a venereal disease, she would not have consented. This argument, however, was rejected, and the defendant escaped liability for both assault and rape.

 The case of Dica (2004) was the first successful prosecution in the UK for biological GBH. The defendant had unprotected sex with two women whilst aware the he was HIV positive. This resulted in the two women contracting the virus. The Court of Appeal decided that if a party had consensual sex with another knowing he was HIV positive, he was inflicting GBH on the person and was reckless as to whether the party might become infected. The fact that the party had consented to intercourse was irrelevant. The party had not consented to the possible harm from AIDS or any other serious sexual disease. This decision indicates that consent may be a defence provided that the victim consented to the risk of sexually transmitted infections or diseases and not merely intercourse. Therefore this decision does not support Dr Jepson’s view as it indicates that consent could be defence to actual or serious offences against the person

Reforms of the law

The Law Commission’s Consultation Paper, ‘Consent in the Criminal Law’ (1995) did not propose any radical changes in the law on content. It did however state that ‘We recommend that the intentional and reckless causing of seriously disabling injury to another person should continue to be criminal, even if the injured person consents to such an injury or to the risk of such an injury.’ Since the term ‘serious injury’ was proposed by the Law Commission ‘s s Report, Offences Against the Person and General Principles (1993), to replace grievous bodily harm, this would mean that consent would continue to be an unacceptable defence to grievous bodily harm, supporting Dr Jepson’s view and also Lord Lane’s in Attorney General Reference (No.6 of 1980) (1981).

I believe that the defence of consent should be allowed in some circumstances where the victim should have foreseen the consequences occurring. It is not however always acceptable to allow individuals to be acquitted because the received the consent of the alleged victim. I think that the House of Lords are right in only allowing the defence of consent in recognised circumstances as stated. However it does appear in some cases that the law is too lenient i.e. in the case of Wilson, the defendant should have foreseen that such consequences were possible and his act was a dangerous one. It will therefore be said that the law in this area needs to be reformed so that the issue of consent is considered appropriately in all cases.

Kelly Butterworth

Bibliography

Roe. D. ‘Criminal Law’ - Hodder and Stoughton (1999)

Herring. J. ‘Criminal Law Text, Cases and Materials’ – Oxford University press (2004)

Storey. T. and Lidbury. A. ‘ Criminal Law’ – Willan Publishing (2001)