Consent (criminal)
Encyclopedia
In criminal law
, consent may be used as an excuse
and prevent the defendant from incurring liability
for what was done. For a more general discussion, see Dennis J. Baker, "The Moral Limits of Consent as a Defense in the Criminal Law," 12(1) New Criminal Law Review (2009); Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law's Authority (Ashgate, 2011 ) , see also consensual crime
.
or taken with out consent
). But public policy
requires court
s to lay down limits on the extent to which citizens are allowed to consent or are to be bound by apparent consent given.
However, consent is valid in a range of circumstances, including contact sports, such as boxing
or mixed martial arts
, as well as body modification
s. But in the context of sadomasochism, Lord Mustill in R v Brown
[1993] 2 All ER at p103 has set the level just below actual bodily harm
. R v Wilson (1996), which involved a case where a husband branded his wife's buttocks, upheld that consent can be a valid defence. The act was considered comparable to tattooing, whilst Brown applied specifically to sadomasochism.
For sado-masochism, R v Boyea (1992) 156 JPR 505 was another application of the ratio decidendi
in Donovan that even if she had actually consented to injury by allowing the defendant to put his hand into her vagina
and twist it, causing internal and external injuries to her vagina and bruising on her pubis, the woman's consent (if any) would have been irrelevant. The court took judicial notice
of the change in social attitudes to sexual matters but, "the extent of the violence inflicted… went far beyond the risk of minor injury to which, if she did consent, her consent would have been a defence". In R v Brown [1993] 2 All ER 75 the House of Lords
rejected the defense on public policy grounds (see below). This is an application of the general rule that, once an actus reus with an appropriate mens rea
has been established, no defense can be admitted but the evidence
may be admitted to mitigate the sentence
. This decision was confirmed in the ECHR in Laskey v United Kingdom (1997) 24 EHRR 39 on the basis that although the prosecution might have constituted an interference with the private lives of those involved, it was justified for the protection of public health. In R v Emmett (unreported, 18 June 1999), as part of their consensual sexual activity, the woman allowed her partner to cover her head with a plastic bag, tying it tightly at the neck. On a different occasion, she agreed that he could pour fuel from a lighter onto her breasts and set fire to the fuel. On the first occasion, she was at risk of death, and lost consciousness. On the second, she suffered burns, which became infected. The court applied Brown and ruled that the woman's consent to these events did not provide a defence for her partner. The general rule, therefore, is that violence involving the deliberate and intentional infliction of bodily harm is and remains unlawful notwithstanding that its purpose is the sexual gratification of one or both participants. Notwithstanding their sexual overtones, these cases are considered to be violent crimes and it is not an excuse
that one partner consents.
Maouloud Baby v. State of Maryland
was a 2007 case in the Maryland Court of Appeals
, the state's highest court, which determined that a person may withdraw sexual consent after having given it, and that the continuation of sexual activity after the withdrawal of consent constitutes rape.
Had she been aware, she would not have submitted to the intercourse. The defendant was convicted of inflicting grievous bodily harm
contrary to section 20 of the Offences against the Person Act 1861
. On appeal the conviction was quashed. Mr Justice Willis said:
Mr Justice Stephens had said (at p44):
Until recently, the case has never been challenged, but its current status was complicated by the then general assumptions that "infliction" required some act of violence, and that non-physical injuries could not be inflicted and so were outside the scope of the Offences Against the Person Act.
Now the ruling in R v Chan-Fook (1994) 1 WLR. 689, which held that psychiatric injury could be actual bodily harm, has been confirmed by the House of Lords
in R v Burstow, R v Ireland (1998) 1 CAR 177. These cases overrule the implicit ratio decidendi
of Clarence that non-physical injuries can be injuries within the scope of the Offences Against the Person Act and without the need to prove a physical application of violence, Lord Steyn describing Clarence as a "troublesome authority", and, in the specific context of the meaning of "inflict" in section 20, said expressly that Clarence "no longer assists".
This left the issue of fraud. In R v Linekar (1995) QB 250, a prostitute stated the fact that she would not have consented to sexual intercourse if she had known that her client was not intending to pay, but there was no fraud-induced consent as to the nature of the activity, nor was the identity of the client relevant. In R v Richardson (1998) 2 Cr. App. R. 200, the patient believed that she was receiving dental treatment which otherwise would have given rise to an assault occasioning actual bodily harm, from a dentist who had in fact been struck off the register. The Court held that the identity of the defendant was not a feature which, in that case, precluded the giving of consent by the patient. In R v Navid Tabassum (May, 2000)http://www.lawteacher.net/Criminal/Non%20Fatal%20Assaults/Consent%20Tabassum.htm the three complainant women agreed to the appellant showing them how to examine their own breasts. That involved the appellant, himself, feeling the breasts of two of the women and using a stethoscope beneath the bra of the third woman. Each of the three women said that they had only consented because they thought the appellant had either medical qualifications or relevant training. He had neither. There was no evidence of any sexual motive. He was convicted on the basis that the complainants had only consented to acts medical in nature and not to indecent behaviour, that is, there was consent to the nature of the act but not its quality. In R v Cort (2003) 3 WLR 1300, a case of kidnapping, the complainants had consented to taking a ride in a car, but not to being kidnapped. They wanted transport, not kidnapping. Kidnapping may be established by carrying away by fraud.
"It is difficult to see how one could ever consent to that once fraud was indeed established. The 'nature' of the act here is therefore taking the complainant away by fraud. The complainant did not consent to that event. All that she consented to was a ride in the car, which in itself is irrelevant to the offence and a different thing from that with which Mr Cort is charged".
It did, however, accept that society should have criminal sanctions for use against "evil acts", and that this might include people who transmitted diseases causing serious illness to others with intent to do them such harm, adding that "this aims to strike a sensible balance between allowing very serious intentional acts to be punished while not rendering individuals liable for prosecution of unintentional or reckless acts or for the transmission of minor disease" (see paras 3.13-318)
In 2000, the government repeated that view in a consultation relating to the law on manslaughter
, "The Government remains wholly committed to this approach."
This has since been considered in R. v Dica, which deals with the transmission of HIV
, holding that it was not necessary to prove that the transmission had involved an assault for the "inflicting" of the disease.
The judgment rejects the rule in Clarence as tainted by the then presumption of a wife's marital consent to sexual intercourse, although Clarence was still being applied after the criminalisation of rape within marriage. The more modern authorities involving the transmission of psychological conditions and in other sexual matters, reject the notion that consent can be a defence to anything more than a trivial injury.
Yet this is not without its difficulties. If it is proposed to criminalise the consensual taking of risks of infection by having unprotected sexual intercourse, enforcement is impractical. The community prefers that sexual relationships are a private matter between the individuals involved and if adults were suddenly to be liable to prosecution for taking known risks with their health, this would represent a significant interference with personal autonomy. Further, the law cannot expect people suddenly to become honest with each other and to counsel the use of condoms, and there may be negative consequences if HIV was to be disclosable, because those who ought to take medical advice and undergo tests, might be discouraged from doing so.
Consequently, the Appeal Court decided that had the women known of his infection, their consent to unprotected sexual intercourse would have been a valid defence. In this regard, they overturned the ruling of the original judge.
In R. v Konzani, the defence argued that by consenting to unprotected sexual intercourse with the defendant, the women were impliedly consenting to all the risks associated with sexual intercourse which included infection with HIV. In cross-examination two of the three women had explicitly acknowledged that, in general, unprotected sexual intercouse carried a risk of infection.
However the Appeal Court judges ruled that before the complainants' consent could provide the appellant with a defence, it had to be an informed and willing consent to the specific risk, here the risk of contracting HIV, rather than the general one of contracting something. The same court held that a person accused of recklessly transmitting an STI could only raise the defense of consent, including an honest belief in consent, in cases where that consent was a "willing" or "conscious" consent. In other words, the court distinguished between “willingly running the risk of transmission” and “willingly consenting to the risk of transmission.” This suggests that consent will only operate as a defense in all but the most exceptional of cases where there has already been prior disclosure of known HIV positive status. Judge LJ. summaries the situation at para 42: In the public interest, so far as possible, the spread of catastrophic illness must 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 HIV 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 HIV to her through consensual sexual intercourse. On any view, the concealment of this fact from her almost inevitably means that she is deceived. Her consent is not properly informed, and she cannot give an informed consent to something of which she is ignorant. Equally, her personal autonomy is not normally protected by allowing a defendant who knows that he is suffering from HIV which he deliberately conceals, to assert an honest belief in his partner's informed consent to the risk of the transmission of HIV. Silence in these circumstances is incongruous with honesty, or with a genuine belief that there is an informed consent. Accordingly, in such circumstances the issue either of informed consent, or honest belief in it will only rarely arise: in reality, in most cases, the contention would be wholly artificial. Baker (2009) in "Moral Limits of Consent" 12(1) New Criminal Law Review argues even if the consent in Konzani was genuine, that it like Brown was rightly decided, as Baker is of the view that a person cannot consent to irreparable harm of a grave kind without also degrading his or her humanity in the Kantian sense. Baker also argues that the Harm Principle provides an important constraint, as it prevents the consenter from being criminalized because it is only harm to others that is criminalisable under the Harm Principle—not harm to self. Therefore, it is only those who rely on consent to inflict grave harm on their fellows humans that are criminalized under Baker's proposals. However, Baker points out that R v. Brown is more borderline, as the harm in that case was reversible and is not too different to having unnecessary plastic surgery that is no longer benefiting the patient—that is numerous surgical procedures which are clearly having a disfiguring rather than beneficial cosmetic effect.
(1882) 8 QBD 534, members of the public who attended an illegal prize fight in a public place were convicted of aiding and abbetting an assault. They were cheering on the boxers whose conduct was likely to and did produce a breach of the peace, so any mutual consent given by the fighters was vitiated by the public nature of the entertainment irrespective of the degree of injury caused or intended. Hence, the principal offence was committed and, since it would not have taken place had there been no crowd to bet and support the fighters, the secondary parties were also liable.
principle volenti non fit injuria
(Latin
for consent does not make an [actionable] injury) and the victim consents to run the risk (not the certainty) of injury arising within the rules of the game being played. This does not give sport a license to enact rules permitting acts that are clearly, excessively and maliciously violent. Even professional sport should have an element of fun while the players are, in the more extreme cases, given criminal as well as civil law protection (see R v Johnson (1986) 8 Cr. App. R. (S) 343 and R v Lloyd (1989) CLR 513 dealing with injuries inflicted on the rugby field in "off the ball" incidents). Thus, the consent in licensed boxing events is to intentional harm within the rules and a blow struck between rounds would be an assault.
supports the playing of practical joke
s and active physical interaction as a form of "fun", those who become a part of that culture must accept the local standards of contact and the injuries that might result. Thus, in R v Aitken and Others [1992] 1 WLR 1006, the victim was a serving member of the Royal Air Force
and the fact that he had participated in practical jokes played on his companions was accepted as evidence that he had consented to become a victim when it was "his turn".
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, consent may be used as an excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
and prevent the defendant from incurring liability
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
for what was done. For a more general discussion, see Dennis J. Baker, "The Moral Limits of Consent as a Defense in the Criminal Law," 12(1) New Criminal Law Review (2009); Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law's Authority (Ashgate, 2011
Consensual crime
A consensual crime is a public order crime that involves more than one participant, all of whom give their consent as willing participants in an activity that is unlawful....
.
Generally
A defence against criminal liability may arise when a defendant can argue that, because of consent, there was no crime (e.g., arguing that permission was given to use an automobile, so it was not theftTheft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
or taken with out consent
TWOC
TWOC is an acronym standing for Taking Without Owner's Consent. Synonyms used by police in the UK include UTMV: Unlawful Taking of a Motor Vehicle, and TADA or TDA: Taking and Driving Away...
). But public policy
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
requires court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s to lay down limits on the extent to which citizens are allowed to consent or are to be bound by apparent consent given.
- As an application of parens patriaeParens patriaeParens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...
, for example, minorsMinor (law)In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
cannot consent to having sexual intercourseSexual intercourseSexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...
under a specified age even though the particular instance of statutory rapeStatutory rapeThe phrase statutory rape is a term used in some legal jurisdictions to describe sexual activities where one participant is below the age required to legally consent to the behavior...
might be a "victimless" offense. In the case of adultAdultAn adult is a human being or living organism that is of relatively mature age, typically associated with sexual maturity and the attainment of reproductive age....
s, there are similar limits imposed on their capacityCapacity (law)The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
where the stateState (polity)A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
deems the issue to be of sufficient significance. Thus, for example, an individual domiciledDomicile (law)In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
in a common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
state cannot give consent and create a valid second marriageMarriage (conflict)In conflict of laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural and multi-national relationships...
. The second ceremony will do no more than expose the prospective spouse to a charge of bigamyBigamyIn cultures that practice marital monogamy, bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a crime in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other...
. Similarly, no consent can be given for an incestIncestIncest is sexual intercourse between close relatives that is usually illegal in the jurisdiction where it takes place and/or is conventionally considered a taboo. The term may apply to sexual activities between: individuals of close "blood relationship"; members of the same household; step...
uous relationship nor for relationships that expose one of the parties to excessive violenceViolenceViolence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
(e.g. most states have a rule that an abusive husbandMarriageMarriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
can be prosecuted even if the wifeWifeA wife is a female partner in a marriage. The rights and obligations of the wife regarding her spouse and others, and her status in the community and in law, varies between cultures and has varied over time.-Origin and etymology:...
does not co-operate and give evidence to rebut the husband's defense that the wife consented). In English law, the Sexual Offences Act 2003 removes the element of consent from the actus reusActus reusActus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
of many offences, so that only the act itself and the age or other constraints need to be proved, including:
-
- children under 16 years generally, and under 18 years if having sexual relations with persons in a position of trust or with family members over 18 years; and
- persons with a mental disorder that impedes choice who are induced, threatened or deceived, or who have sexual relations with care workers.
- Most states have laws which criminalize misrepresentationMisrepresentationMisrepresentation is a contract law concept. It means a false statement of fact made by one party to another party, which has the effect of inducing that party into the contract. For example, under certain circumstances, false statements or promises made by a seller of goods regarding the quality...
s, deceptionDeceptionDeception, beguilement, deceit, bluff, mystification, bad faith, and subterfuge are acts to propagate beliefs that are not true, or not the whole truth . Deception can involve dissimulation, propaganda, and sleight of hand. It can employ distraction, camouflage or concealment...
s and fraudFraudIn criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
. These are situations in which a victim may have given apparent consent to parting with ownership or possession of money and goods or generally suffering a loss, but this consent is treated as vitiated by the dishonesty of the person making the untrue representations. Thus, while the criminal law is not generally a means of escaping civil obligations, the criminal courts may be able to offer some assistance to the gullible by returning their property or making compensation orders.
- Most states have laws which criminalize misrepresentation
Consensual activity
The problem has always been to decide at what level the victim's consent becomes ineffective. Historically in the UK, the defense was denied when the injuries caused amounted to a maim (per Hawkins' Pleas of the Crown (8th ed.) 1824). In R v Donovan (1934) AER 207 in which Swift J. stated the general rule that:- No person can license another to commit a crime, if (the jury) were satisfied that the blows struck ... were likely or intended to do bodily harm ... they ought to convict ... only if they were not so satisfied (was it) necessary to consider the further question whether the prosecution had negatived consent.
However, consent is valid in a range of circumstances, including contact sports, such as boxing
Boxing
Boxing, also called pugilism, is a combat sport in which two people fight each other using their fists. Boxing is supervised by a referee over a series of between one to three minute intervals called rounds...
or mixed martial arts
Mixed martial arts
Mixed Martial Arts is a full contact combat sport that allows the use of both striking and grappling techniques, both standing and on the ground, including boxing, wrestling, Brazilian jiu-jitsu, muay Thai, kickboxing, karate, judo and other styles. The roots of modern mixed martial arts can be...
, as well as body modification
Body modification
Body modification is the deliberate altering of the human body for any non-medical reason, such as aesthetics, sexual enhancement, a rite of passage, religious reasons, to display group membership or affiliation, to create body art, shock value, or self expression...
s. But in the context of sadomasochism, Lord Mustill in R v Brown
R v Brown
R v Brown [1994] 1 AC 212 is a House of Lords judgment in which a group of men were convicted for their involvement in consensual sadomasochistic sexual acts over a 10 year period. They were convicted of "unlawful and malicious wounding" and "assault occasioning actual bodily harm" contrary to...
[1993] 2 All ER at p103 has set the level just below actual bodily harm
Actual bodily harm
Assault occasioning actual bodily harm is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands...
. R v Wilson (1996), which involved a case where a husband branded his wife's buttocks, upheld that consent can be a valid defence. The act was considered comparable to tattooing, whilst Brown applied specifically to sadomasochism.
For sado-masochism, R v Boyea (1992) 156 JPR 505 was another application of the ratio decidendi
Ratio decidendi
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
in Donovan that even if she had actually consented to injury by allowing the defendant to put his hand into her vagina
Fisting
Fisting is a sexual activity that involves inserting a hand into the vagina or rectum. Once insertion is complete, the fingers either naturally clench into a fist or remain straight. In more vigorous forms of fisting, such as "punching", a fully clenched fist may be inserted and withdrawn slowly...
and twist it, causing internal and external injuries to her vagina and bruising on her pubis, the woman's consent (if any) would have been irrelevant. The court took judicial notice
Judicial notice
Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted. This is done upon the request of the party seeking to have the fact at issue determined by the court...
of the change in social attitudes to sexual matters but, "the extent of the violence inflicted… went far beyond the risk of minor injury to which, if she did consent, her consent would have been a defence". In R v Brown [1993] 2 All ER 75 the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
rejected the defense on public policy grounds (see below). This is an application of the general rule that, once an actus reus with an appropriate mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
has been established, no defense can be admitted but the evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
may be admitted to mitigate the sentence
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
. This decision was confirmed in the ECHR in Laskey v United Kingdom (1997) 24 EHRR 39 on the basis that although the prosecution might have constituted an interference with the private lives of those involved, it was justified for the protection of public health. In R v Emmett (unreported, 18 June 1999), as part of their consensual sexual activity, the woman allowed her partner to cover her head with a plastic bag, tying it tightly at the neck. On a different occasion, she agreed that he could pour fuel from a lighter onto her breasts and set fire to the fuel. On the first occasion, she was at risk of death, and lost consciousness. On the second, she suffered burns, which became infected. The court applied Brown and ruled that the woman's consent to these events did not provide a defence for her partner. The general rule, therefore, is that violence involving the deliberate and intentional infliction of bodily harm is and remains unlawful notwithstanding that its purpose is the sexual gratification of one or both participants. Notwithstanding their sexual overtones, these cases are considered to be violent crimes and it is not an excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
that one partner consents.
Maouloud Baby v. State of Maryland
Maouloud Baby v. State of Maryland
Maouloud Baby v. State of Maryland is a Maryland state court case relating to the ability to withdraw sexual consent....
was a 2007 case in the Maryland Court of Appeals
Maryland Court of Appeals
The Court of Appeals of Maryland is the supreme court of the U.S. state of Maryland. The court, which is composed of one chief judge and six associate judges, meets in the Robert C. Murphy Courts of Appeal Building in the state capital, Annapolis...
, the state's highest court, which determined that a person may withdraw sexual consent after having given it, and that the continuation of sexual activity after the withdrawal of consent constitutes rape.
Consent obtained by deception
In R v Clarence (1888) 22 QBD 23, at a time when the defendant knew that he was suffering from a venereal disease, he had sexual intercourse and communicated the disease to his wife.Had she been aware, she would not have submitted to the intercourse. The defendant was convicted of inflicting grievous bodily harm
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
contrary to section 20 of the Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
. On appeal the conviction was quashed. Mr Justice Willis said:
- ...that consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law.
Mr Justice Stephens had said (at p44):
- ...the only sorts of fraud which so far destroy the effect of a woman's consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act. Consent in such cases does not exist at all because the act consented to is not the act done.
Until recently, the case has never been challenged, but its current status was complicated by the then general assumptions that "infliction" required some act of violence, and that non-physical injuries could not be inflicted and so were outside the scope of the Offences Against the Person Act.
Now the ruling in R v Chan-Fook (1994) 1 WLR. 689, which held that psychiatric injury could be actual bodily harm, has been confirmed by the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
in R v Burstow, R v Ireland (1998) 1 CAR 177. These cases overrule the implicit ratio decidendi
Ratio decidendi
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
of Clarence that non-physical injuries can be injuries within the scope of the Offences Against the Person Act and without the need to prove a physical application of violence, Lord Steyn describing Clarence as a "troublesome authority", and, in the specific context of the meaning of "inflict" in section 20, said expressly that Clarence "no longer assists".
This left the issue of fraud. In R v Linekar (1995) QB 250, a prostitute stated the fact that she would not have consented to sexual intercourse if she had known that her client was not intending to pay, but there was no fraud-induced consent as to the nature of the activity, nor was the identity of the client relevant. In R v Richardson (1998) 2 Cr. App. R. 200, the patient believed that she was receiving dental treatment which otherwise would have given rise to an assault occasioning actual bodily harm, from a dentist who had in fact been struck off the register. The Court held that the identity of the defendant was not a feature which, in that case, precluded the giving of consent by the patient. In R v Navid Tabassum (May, 2000)http://www.lawteacher.net/Criminal/Non%20Fatal%20Assaults/Consent%20Tabassum.htm the three complainant women agreed to the appellant showing them how to examine their own breasts. That involved the appellant, himself, feeling the breasts of two of the women and using a stethoscope beneath the bra of the third woman. Each of the three women said that they had only consented because they thought the appellant had either medical qualifications or relevant training. He had neither. There was no evidence of any sexual motive. He was convicted on the basis that the complainants had only consented to acts medical in nature and not to indecent behaviour, that is, there was consent to the nature of the act but not its quality. In R v Cort (2003) 3 WLR 1300, a case of kidnapping, the complainants had consented to taking a ride in a car, but not to being kidnapped. They wanted transport, not kidnapping. Kidnapping may be established by carrying away by fraud.
"It is difficult to see how one could ever consent to that once fraud was indeed established. The 'nature' of the act here is therefore taking the complainant away by fraud. The complainant did not consent to that event. All that she consented to was a ride in the car, which in itself is irrelevant to the offence and a different thing from that with which Mr Cort is charged".
Sexual transmission of disease
In 1998, the Home Office issued a consultation paper entitled Violence: Reforming the Offences Against the Person Act 1861 rejecting the Law Commission's recommendation that there should be offences for the intentional or reckless transmission of disease. The Government "[was] particularly concerned that the law should not seem to discriminate against those who are HIV positive, have AIDS or viral Hepatitis or who carry any kind of disease".It did, however, accept that society should have criminal sanctions for use against "evil acts", and that this might include people who transmitted diseases causing serious illness to others with intent to do them such harm, adding that "this aims to strike a sensible balance between allowing very serious intentional acts to be punished while not rendering individuals liable for prosecution of unintentional or reckless acts or for the transmission of minor disease" (see paras 3.13-318)
In 2000, the government repeated that view in a consultation relating to the law on manslaughter
Manslaughter in English law
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea . In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option...
, "The Government remains wholly committed to this approach."
This has since been considered in R. v Dica, which deals with the transmission of HIV
Criminal transmission of HIV
In many countries, the intentional or reckless infection of a person with the human immunodeficiency virus is considered to be a crime. This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the...
, holding that it was not necessary to prove that the transmission had involved an assault for the "inflicting" of the disease.
The judgment rejects the rule in Clarence as tainted by the then presumption of a wife's marital consent to sexual intercourse, although Clarence was still being applied after the criminalisation of rape within marriage. The more modern authorities involving the transmission of psychological conditions and in other sexual matters, reject the notion that consent can be a defence to anything more than a trivial injury.
Yet this is not without its difficulties. If it is proposed to criminalise the consensual taking of risks of infection by having unprotected sexual intercourse, enforcement is impractical. The community prefers that sexual relationships are a private matter between the individuals involved and if adults were suddenly to be liable to prosecution for taking known risks with their health, this would represent a significant interference with personal autonomy. Further, the law cannot expect people suddenly to become honest with each other and to counsel the use of condoms, and there may be negative consequences if HIV was to be disclosable, because those who ought to take medical advice and undergo tests, might be discouraged from doing so.
Consequently, the Appeal Court decided that had the women known of his infection, their consent to unprotected sexual intercourse would have been a valid defence. In this regard, they overturned the ruling of the original judge.
In R. v Konzani, the defence argued that by consenting to unprotected sexual intercourse with the defendant, the women were impliedly consenting to all the risks associated with sexual intercourse which included infection with HIV. In cross-examination two of the three women had explicitly acknowledged that, in general, unprotected sexual intercouse carried a risk of infection.
However the Appeal Court judges ruled that before the complainants' consent could provide the appellant with a defence, it had to be an informed and willing consent to the specific risk, here the risk of contracting HIV, rather than the general one of contracting something. The same court held that a person accused of recklessly transmitting an STI could only raise the defense of consent, including an honest belief in consent, in cases where that consent was a "willing" or "conscious" consent. In other words, the court distinguished between “willingly running the risk of transmission” and “willingly consenting to the risk of transmission.” This suggests that consent will only operate as a defense in all but the most exceptional of cases where there has already been prior disclosure of known HIV positive status. Judge LJ. summaries the situation at para 42: In the public interest, so far as possible, the spread of catastrophic illness must 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 HIV 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 HIV to her through consensual sexual intercourse. On any view, the concealment of this fact from her almost inevitably means that she is deceived. Her consent is not properly informed, and she cannot give an informed consent to something of which she is ignorant. Equally, her personal autonomy is not normally protected by allowing a defendant who knows that he is suffering from HIV which he deliberately conceals, to assert an honest belief in his partner's informed consent to the risk of the transmission of HIV. Silence in these circumstances is incongruous with honesty, or with a genuine belief that there is an informed consent. Accordingly, in such circumstances the issue either of informed consent, or honest belief in it will only rarely arise: in reality, in most cases, the contention would be wholly artificial. Baker (2009) in "Moral Limits of Consent" 12(1) New Criminal Law Review argues even if the consent in Konzani was genuine, that it like Brown was rightly decided, as Baker is of the view that a person cannot consent to irreparable harm of a grave kind without also degrading his or her humanity in the Kantian sense. Baker also argues that the Harm Principle provides an important constraint, as it prevents the consenter from being criminalized because it is only harm to others that is criminalisable under the Harm Principle—not harm to self. Therefore, it is only those who rely on consent to inflict grave harm on their fellows humans that are criminalized under Baker's proposals. However, Baker points out that R v. Brown is more borderline, as the harm in that case was reversible and is not too different to having unnecessary plastic surgery that is no longer benefiting the patient—that is numerous surgical procedures which are clearly having a disfiguring rather than beneficial cosmetic effect.
The public interest in preventing breaches of the peace
In R v ConeyR v. Coney
R v. Coney 8 QBD 534 is an English case in which the Court for Crown Cases Reserved found that a bare-knuckle fight was an assault occasioning actual bodily harm, despite the consent of the participants...
(1882) 8 QBD 534, members of the public who attended an illegal prize fight in a public place were convicted of aiding and abbetting an assault. They were cheering on the boxers whose conduct was likely to and did produce a breach of the peace, so any mutual consent given by the fighters was vitiated by the public nature of the entertainment irrespective of the degree of injury caused or intended. Hence, the principal offence was committed and, since it would not have taken place had there been no crowd to bet and support the fighters, the secondary parties were also liable.
Consent as an effective defence
In properly regulated sport, there is a legal right to cause incidental injury. This is a criminal law version of the civil lawCivil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
principle volenti non fit injuria
Volenti non fit injuria
Volenti non fit injuria is a common law doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they will not be able to bring a claim against the other party in tort or delict...
(Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for consent does not make an [actionable] injury) and the victim consents to run the risk (not the certainty) of injury arising within the rules of the game being played. This does not give sport a license to enact rules permitting acts that are clearly, excessively and maliciously violent. Even professional sport should have an element of fun while the players are, in the more extreme cases, given criminal as well as civil law protection (see R v Johnson (1986) 8 Cr. App. R. (S) 343 and R v Lloyd (1989) CLR 513 dealing with injuries inflicted on the rugby field in "off the ball" incidents). Thus, the consent in licensed boxing events is to intentional harm within the rules and a blow struck between rounds would be an assault.
Horseplay
Where the cultureCulture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
supports the playing of practical joke
Practical joke
A practical joke is a mischievous trick played on someone, typically causing the victim to experience embarrassment, indignity, or discomfort. Practical jokes differ from confidence tricks in that the victim finds out, or is let in on the joke, rather than being fooled into handing over money or...
s and active physical interaction as a form of "fun", those who become a part of that culture must accept the local standards of contact and the injuries that might result. Thus, in R v Aitken and Others [1992] 1 WLR 1006, the victim was a serving member of the Royal Air Force
Royal Air Force
The Royal Air Force is the aerial warfare service branch of the British Armed Forces. Formed on 1 April 1918, it is the oldest independent air force in the world...
and the fact that he had participated in practical jokes played on his companions was accepted as evidence that he had consented to become a victim when it was "his turn".
Legal right to cause injury
- Doctors and all health professionals have a general right to assume a patient's consent for necessary treatment (per Denning LJAlfred Denning, Baron DenningAlfred Thompson "Tom" Denning, Baron Denning, OM, PC, DL, KC , commonly known as Lord Denning, was a British soldier, mathematician, lawyer and judge. He gained degrees in mathematics and law at Oxford University, although his studies were disrupted by his service in the First World War...
in Bravery v Bravery (1954) 3 AER 59). So if a person is brought into a hospital unconscious, surgery to preserve life will not be unlawful. But, if the health authorities have actual notice that the patient does not consent, even necessary treatment will be unlawful unless either it becomes urgently necessary to take action to avoid death, or consent is given either by a spouse or relative, or by a court. There have been cases, for example, where it was not to be an assault for prison hospitals for force-feed a prisoner on hunger strike, but such cases are not of general application. When in doubt, consent should be sought from the courts. In any event, treatment will only be lawful if it is of therapeutic rather than cosmetic value. Similarly, tattooing, ear piercing and other cosmetic procedures will be lawful if there is actual consent. - Parents and others who are in loco parentisIn loco parentisThe term in loco parentis, Latin for "in the place of a parent"" refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent...
have a limited right to administer reasonable parental punishment: see A v UK (1998) CLR 892 and H (2002) 1 Cr. App. R. 59, but teachers are prohibited from administering corporal punishment: s548 Education Act 1996: Williams v Secretary of State for Education and Employment (2003) 1 AER 385.