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." Critically analyse these views.

Written by Rachel Ackers (A2 Law)

Non-fatal offences against the person such as assault and battery can lead to actual and serious harm towards another, the defence of consent has often caused a great deal of confusion regarding whether it should be allowed as a complete defence or not. The opposing views of Lord Lane and Dr Jepson can be analysed in relation to the issues of consent, I agree with both statements to an extent however I can see that there are exceptions to their statements which would refrain the law from being reformed in such a way.

Consent

The defence of consent has caused much confusion and consequently the law is inconsistent in its view regarding the defence. The courts have outlined that if the victim has actually given consent to the assault or battery inflicted, then no offence will have been committed. Lord Lane stated in Attorney Generals Reference (No 6 of 1980) 1981 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.≤ Therefore implying that if the defence of consent is accepted then it will be a complete defence and the defendant will be acquitted. There is much criticism concerning this statement, it is too general and there are exceptions in which the rule would not be appropriate. Public morals are an issue, whether it is thought acceptable to cause bodily harm to others for no apparent reason despite the individual gaining full consent to do so, is debatable.

Properly conducted sports-

Some sports promote physical harm towards consenting others, for example boxing; it is for the law to decide whether this is valid consent for such sports. The judgement in Brown demonstrated that boxing and wrestling were lawful activities in which the individual is consenting to harm which could occur within the rules of the game. However this is only applicable as long as the defendant did not intent to cause serious harm to the victim, if this is not the case then the defendants liability needs to be questioned as to whether the harm was acceptable in the rules of the game. There is need for consent to not be a complete defence in all cases as Bradshaw 1878 highlights. It is a prime example of how a victim who died during a football match shows that such consent to the game would not have included the risk of death. Therefore it is not acceptable to allow consent as a complete defence for all offences against the person. I therefore disagree with Lord Lane in that an assault can occur even when the victim has consented as they may not have consented to the harm caused.

Lawful chastisement

The use of reasonable force towards an individualπs children has always been regarded acceptable, and in Watkins 2001 it was also considered acceptable for a teacher to use reasonable force. However there are obviously limitations to ensure the protection of children, and punishment cannot be ≥for the gratification of passion or rage or if it be immoderate or excessive in its nature or degree.≤ Despite this, the punishment of children is now much less lenient towards the parentπs reasons of physical punishment which was highlighted when a man was jailed for 2 years recently after leaving his step-son with permanent injuries. I do not agree with Lord Lanes view that an assault occurs against the will of the victim as in the case of a parent punishing their child. This would cause children to prosecute their parent for punishing them, which I believe is not acceptable if the force used is reasonable and for legitimate reasons.

Surgery

The issue of consent is appropriate when considering whether consent for surgery is allowed. An individual may consent to the infliction of bodily harm for medical reasons. Dr Jepson believes that consent should never be a valid defence when actual/serious offences are carried out against the person. However with such a view it would mean that an individual could not allow themselves to give full consent to an operation as all operations cause a certain amount of actual bodily harm. Consequently this provides criticism for such a view and it would not be feasible to never allow consent as a defence as when attempting to save anotherπs life, for example by giving them a heart operation, the surgeon would be liable for actual bodily harm caused to the patient. Therefore this shows that the view does not consider all aspects of the cause of actual bodily harm and as a result would not be a suitable law reform.

The defence of consent can also be allowed for surgery involving sex changes, sterilisation and organ transplants as long as the operation is for lawful purposes. Richardson 1998 held patient to be consenting to dental treatment, despite there plea that they would not have been willing if they had known that the dentist had been struck off by the General Dental Council. Lord Lane explains that it is essential that assault is carried out when the victim does not consent to the act, however in that of surgery the victim is consenting before medial surgery and consequently the view of Dr Jepson cannot be applied to surgery that consent is never a valid defence in the cases of actual bodily harm.

Horseplay:

Horseplay includes those practical jokes of individuals upon others which have back fired and consequently someone has been wounded. The most demonstrative case is that of Jones 1987 in which a two schoolboys were tossed into the air by the defendant and in the process were consequently injured. The Court of Appeal held that the boys had consented to ≥rough and undisciplined play≤ and consequently due to their consent the defendantπs conviction was subsequently quashed. I believe that Lord Lanes view could be more appropriate in such a circumstance because an assault or grievous bodily harm in this case can only be held if there is no consent on the behalf of the victim, and in such a case they had been consenting through their actions prior to the act itself.

I feel that Dr Jepsonπs view is too strict upon such cases as the defendant was also playing and had not intended such harm and the alleged victims had been consenting initially to the act so they should be held responsible for the consequences as they were foreseeable.

Consent to harmful sexual activity:

The harm caused to an individual during sexual activity has caused complicated problems for the courts and has lead to much variety in the views of the courts. The earliest case which was the most controversial was that of Clarence 1888 in which the defendant had been found not guilty of rape and assault of his wife because she had consented to the actual act of intercourse. She pleaded that she would have never have given such consent if she had known prior to the act that her husband suffered from venereal disease. The case of Cuerrier 1998 was an important one as it provided persuasive precedent when the defendant was convicted in a similar case to that of Clarence. In the case the defendant had had unprotected sex with two women knowing that he was HIV positive, highlighting that informed consent can be used as a defence in such a case and the defendant was liable. In the case of Boyea 1992 the victim had consented to the sexual intercourse however not the harm that this caused to them. Consequently this informed consent and the defendantπs intention lead to the conviction of the defendant. Consent in such cases needs to be considered carefully as the issue for informed consent can arise which can lead to the conviction of the accused.

Biological GBH

Dica 1998 is the first case to be successfully in prosecuting for passing on the Aids virus, HIV, through sexual intercourse. The law made it possible to prosecute under the Offences against the Person Act 1861. The case led to the official law reform body to issue a consultation paper in 1998 proposing a new offence of "intentional transmission of a disease with intent to cause serious harm."

The conviction of Stephen Kelly in 2001 was the second in the UK for transmitting HIV and the defendant was convicted of culpable and reckless behaviour in having unprotected sex with his girlfriend despite the fact he knew of the virus he possessed. He had been advised to practice safe sex and alert partners to his HIV status however he had chosen not to do so. However the case caused controversial views as the evidence for his conviction was obtained from confidential information from a research study on HIV.

There have often been problems in how to deal with the issue of consent regarding the passing on of sexual diseases and also those who recklessly or intentionally do so.

The case of Georgiou was complex as it involved a man who was believed to be aware that he was carrying the HIV virus when he had sex with a woman. In this case it was established that to prosecute for passing on HIV or herpes, it had to be proved that the defendant knew he or she was infected with the virus and also they would have to show that the victim had been infected by the defendant.

The defence of consent should not be allowed in the cases like those above as although the women had consented to the sexual intercourse with the defendant, they did not believe the defendant to have had the infections or disease. Therefore they can not be found liable for their actions as they would not have consented if they had known of the defendantπs medial history. Although it could be argued that they could have been asked it is however not the point, the defendants knew of their condition and proceeded to infect the victims. In such a situation there should be no valid defence of consent for the grievous bodily harm, therefore supporting Dr Jepsonπs view that consent is not a valid defence in such circumstances.

Sado-masochism:

This is one of the most complex issues involving consent because it involves consent from the victim to pain through sexual activity. Therefore the victim has actually consented to the infliction of such pain and possibly actual bodily harm and therefore can obviously cause problems for the courts when convicting. The most significant case is that of Brown and others 1993 1994 in which a group of homosexual males took part in sado-masochistic activities, which were apparently enjoyed by all involved. Some of their activities involved burning each other with matches and metal wires, beating each other and carrying out painful forms of genital torture. Their actions were found by police on video tapes, and although all injuries were carried out with sterilised instruments and the wounds dressed to prevent permanent injuries, those involved were charged under ss47 and s20 of the Offences Against the Person Act 1861. Lord Templeman stated that although Parliament accepted consent for homosexual sexual acts between two individuals in private under the Sexual Offences Act 1967, he could not however apply the same reasoning in this case. He explained that sado-masochism involved violence and that the appellants actions were ≥unpredictably dangerous and degrading to body and mind,≤ and consequently removed the availability of consent as their defence. I believe that this is morally correct because it prevents individuals harming each either for pleasure. It is neither safe nor sociable behaviour and I agree that consent should not be a valid defence for such an offences.

Dr Jepsonπs view agrees that consent is never a valid defence and I agree that this is correct for sado-masochism. I strongly disagree with Lord Lane who believes that an assault or actual bodily harm has to be carried out against the consent and will of the victim. I do not believe that this is so because this allows for individuals to give consent to others to harm them, which is dangerous, and unacceptable behaviour. There has to be rules laid down by the law to prevent society having the freedom to bring about actual bodily harm to others as long as they gain valid consent to do so. The verdict of Brown and Others 1993 is binding on the lower court and thus the defence of consent in sado-masochism is no longer allowed.

Reform of the law

A consultation paper was issued called ≥Consent in the Criminal Law 1995≤ in which it discussed whether an individual could be found liable for intentionally causing actual bodily harm to a consenting other. The case of Brown agreed that although consent can be allowed as a complete defence for assault and battery, it cannot be accepted in cases of actual bodily harm and grievous bodily harm unless in one of the recognised exceptions, previously discussed.

The case of Wilson 1997 established that bottom branding came under one of those exceptions; Wilsonπs wife had initials scarred onto her buttocks when Wilson had burnt them on with a hot knife. He was charged with assault occasioning actual bodily harm under s47 of the Offences against the Person Act 1861 and the judge believed himself to be bound by the case of Brown. The Court of Appeal however distinguished the case from Brown and stated it that the case of Wilson did not inflict aggression unlike Born and therefore was able to be distinguished. They also explained the need for the law to be decided on a case to case basis to be able to distinguish certain cases when the facts are significantly different to previous cases. They believed that no matter of public interest was present and the defendantπs activities should therefore not be considered criminal.

In Tabassum 2000 the prosecution held that the appellant asked several women to take part in a breast cancer survey and three women agreed to the examinations. Each of the three women said that they had only consented because they thought the appellant had either medical qualifications or relevant training, however the defendant had neither. There was no evidence of any sexual motive.

The judge directed the jury explaining that if they believe that the women consented to the examination only because they believed that this man had medical qualifications, ≥then their consent has been negated and so it is not a true consent.≤ Therefore their consent is not a true consent because what they agreed to was an examination by a person who had medical qualifications which the defendant did not possess so the assaults were unlawful. The case of Harms supported this as it established that ≥consent to an act that is different in nature from the act performed is not consent to the act performed.≤ This is true of this case as the victims were consenting to touching for medical purposes and not to anything else. The case of Tabassum held much critism as the necessary mens rea was not directed to the jury, of whether the defendant intended an assault. I feel that in such a case the defence of consent cannot be used because the women were consenting to someone they believed to have medical training to examine them and not someone who had not. Although the argument that she should have inquired about this at the time the informed consent should punish the defendant for not informing them correctly about his lack of medical experience.

Lord Lanes view can be consider as the victims were unaware of the assault because they believed him to have medical experience however when they discovered that he had not they should be able to prosecute on the grounds of assault. Dr Jepsonπs view is interesting as he states that consent should never be valid defence, in the case of Tabassum the women were under the impression he had consent though so it creates complexity to the law.

There is a problem however with Lord Lanes statement, the case of Brown contradicts his view, Lord Lane believes 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 though this was not allowed in the case of Brown. The verdict of Brown stated that consent was not allowed regardless of the defendants will, the acts were believed to be ≥unpredictably dangerous and degrading to body and mind.≤ Therefore Brown showed that the availability of consent as a defence in the case of sado-masochism is not allowed due to the dangerous nature of such acts. As a result Lord Lanes view is contradicted by the judgements of Brown.

I believe that the defence of consent should be allowed in some circumstances where the alleged victim should have foreseen such consequences occurring. However it is not always acceptable to allow individuals to be acquitted because they received the alleged victims consent at the time of the assault. I believe that the House of Lords is correct in agreeing that the defence of consent to actual bodily harm or grievous bodily harm should not be accepted unless it falls under the recognised exceptions discussed earlier including surgical grounds and properly conducted sports. I believe consent should be allowed in some of these cases otherwise sports like boxing would not be allowed legally and this may lead to individuals perusing illegal sports if they continue with such sports. However I feel that the law can be too lenient at times, in some of their judgements for example that of Wilson, despite the womenπs consent I believe that it should not be, as Dr Jepson states a valid consent as it could have lead to an infection and is an unreasonable dangerous act. I therefore believe that the law does need to be reformed to ensure that the issue of consent is considered appropriately in all cases.

Feb 2004.