Examining Consent as a Defence in Criminal Law

“As a general rule, unless the activity is lawful, the consent of the victim to the deliberate infliction of serious bodily injury on him or her does not provide the perpetrator with any defence.” In light of the above statement, critically assess whether and to what extent the criminal law recognises a general defence of consent.

The concept of consent is widely used in common law as a defence for non-fatal offences such as battery of assault.[1] Under s.74 of the Sexual Offences Act (2003), “…a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”[2] If an act is carried out whereby consent is not apparent, or the participant(s) are not of sound mind[3] or legal capacity[4], then penalties of the appropriate legislation will be implemented. Hurd notes that “Consent can function to transform the morality of another’s conduct – to make an action right when it would otherwise be wrong.”[5] It is acknowledged that existence of consent as a defence implies that people have a degree of responsibility and choice over their bodies and lifestyles. In this way, an individual can subject their own body to a certain amount of harm legally. However, there is a level at which the court would not allow someone to abuse their own body or the body of another human being. This essay will critically analyse the various circumstances where consent is recognised as a defence and other cases where consent maybe invalid.

In order to assess where consent is a defence within criminal law, it is necessary to note that consent can be either implied or expressed.[6] This means that one can consent to an action without explicitly granting permission; it is simply inferred from the situation.[7] From this, it must be drawn from the circumstances or the action itself whether the law would allow consent to be given. This contrasts with expressed consent where written or verbal permission is needed. Although implied consent is most common, Anderson holds the view that, when engaging in sexual activity, the easiest way to consent is through verbal communication.[8] In Collins v Wilcock (1984)[9] the defendant refused to speak to a police officer who subsequently grabbed the defendant’s arm and was scratched as a result. The court concluded that “…all physical contact which is generally acceptable in the ordinary conduct of daily life”[10] counted as implied consent. Taking this into account, Goff LJ stated that “Except when lawfully exercising his power of arrest or some other statutory power a police officer had no greater rights than an ordinary citizen to restrain another.”[11] Because of this, the court held that the conduct displayed by the officer was unnecessary and lacked consent thus quashing the conviction. Herring takes a broad approach to the meaning of everyday battery. He notes that consent to battery is impliedly accepted by “all who move in society and so expose themselves to the risk of bodily contact.”[12] However he agrees that conduct displayed out of the normal standards expected in society should be deemed to require expressed consent.[13]

In contrast, the more contemporary case of McMillan v CPS (2008) can be used to show that consent can be implied in certain circumstances. Based on the precedent set in Collins v Wilcock (1984)[14], a police officer was accused of assault during the action of leading the appellant to a public pathway before formally arresting them. However, unlike in Collins v Wilcock, it was held that the officer had “…acted in conformity with the general accepted standards of conduct”[15] and therefore the appeal failed. This shows that, consent may not always need to be immediately explicit with regards to “everyday touchings”.[16] In McMillan v CPS (2008), the officer had chosen to escort the appellant off of the premises before making the arrest in the interests of her safety.[17]

Similarly, in R v Dica (2004), the defendant argued that the plaintiffs impliedly consented to contracting HIV by engaging in unprotected sexual intercourse.[18] However this defence was not accepted in court as, although they consented to sexual intercourse, the plaintiffs were not informed that the defendant had HIV and therefore it would be impossible to consent to contracting a disease they were completely unaware of. However, the statement above implies that even if the victims had consented to the transmission of HIV, the ‘perpetrator’ would have no defence as they were still inflicting serious bodily injury upon the victims regardless of the fact that they explicitly consented. This is because it should be against public policy to continue the spread of any form of STD as it leads to the requirement of more medical consultation and treatment, thus straining the country’s resources further.

Furthermore, consent is not valid if the individual lacks the mental capacity to give consent. Section 2(1) of the Mental Capacity Act (2005) identifies a lack of capacity as being an individual “…unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”[19] People with mental disabilities or are heavily intoxicated might be unable to appropriately assess a situation and therefore are unaware what they’re consenting to.[20] In the same way, age can also act as a barrier to consent. Section 9(1) of the Sexual Offences Act 2003 outlines that anyone under the age of 13 can never give legal consent.[21] Children are considered to lack the full capacity to understand the consequences their actions such as in Burrell v Harmer (1967), where the children did not have the legal capacity to consent to a tattoo.[22] However, this contrasts with the outcome in Jones (1986) where, although there was no actual consent, the schoolboys had previously partaken in ‘rough horseplay’ without injury which therefore counted as consent.[23] In the International Journal of Law, Brosnan and Flynn argue that the judgement of an individual’s mental capacity is decided unfairly, which can then lead to unequal treatment within the law.[24] They suggest that, ”…any individual who has experienced a non-consensual interference with her bodily integrity to sue for assault, regardless of whether or not the person has a disability and of whether the intervention was considered to be in her “best interests’.”[25] This shows a need to broaden the criteria of what is classed a ‘valid consent’ in order to allow everyone the same chance of justice.

As it has been identified so far, a person cannot consent to serious bodily harm, especially if they lack the capacity. Despite this however there are some exceptions where it is deemed acceptable to subject the body to a certain degree of injury. In this way, the criminal law generally recognises consent as a defence in sport.[26] In sports such as boxing and rugby, it is within the rules of some sports to purposely harm the opposition in order to succeed. An issue occurs as to what extent the harm inflicted upon the other is within the normal rules of the game and therefore consensual or whether the intention is to inflict serious harm. An example of unacceptable conduct is seen in R v Billinghurst (1978) whereby the court found that the act of punching the opponent was an “off the ball assault” and not within the acceptable boundaries of the game.[27] Similarly in R v Barnes (2004) the defendant was initially convicted of “maliciously inflicting grievous bodily harm”[28] although after appeal the conviction was quashed. Lord Woolf concluded that, due to recent influx in cases, conduct should be classed as criminal when the injury inflicted is significantly “grave”[29] – however this would further depend on the circumstances. These cases however contrast with the statement made in R v Dica as it shows that people are allowed to consent to what may be considered battery or assault in everyday life. In the Criminal Law Review (2005), Leake Suggests that it may be “simplistic” to solely suggest that consent is only acceptable when it is within the standards of that particular game and that the individual taking part may “…impliedly consent to the risk of injury occurring in conduct outside the rules as in a late tackle in football…”[30] Similar to Brosnan and Flynn, Leake puts forward that it may be necessary to “look to a broader range of factors.”[31]

Furthermore, the criminal law generally accepts that minimal bodily harm such as piercings and tattoos are acts that an individual can consent to. In R v Wilson (1996) the defendant branded his wife upon her request who subsequently needed medical attention.[32] He was charged with causing actual bodily harm under s. 47 of the Offences Against the Person Act (1861)[33] as the judge was bound by R v Donovan (1934).[34] Upon appeal, the court held that consent was apparent as the branding was no more severe than the harm caused by tattooing. Additionally, the court found that the wife was a willing participant who was being aided by her husband and therefore should not be penalised for the consensual act performed between a married couple. If the couple had engaged in such conduct with sado-masochistic intentions then the court would view the behaviour as unlawful according to the controversial outcome of Brown (1993).[35] Despite this result, this action evidently displays the infliction of serious bodily harm – obvious from the need of medical attention – upon another and therefore if the statement made in Dica is applied then the act would be deemed non-consensual. Therefore, it could be argued that this should not be not recognised as a valid defence within the criminal law.

However, in contrast the law fails to recognise consent as a defence for performing actions that cause a substantial degree of harm. As with sport, there is a line at which bodily harm can be taken and consequently the consent of the victim lacks weight. The controversial House of Lords case, R v Brown (1994) set the “…guidelines on the limits of consent…” according to Allen.[36] Here, a group of sado-masochistic gay men carried out a series of acts of violence against each other for sexual pleasure over the course of ten years.[37] The defendants were criminalised under s. 47 of the Offences Against the Person Act (1861)[38] for causing actual bodily harm. Lord Templeman stated that there are some circumstances where inflicting actual bodily harm can be accepted for example in surgery, however in this case it is necessary to take into consideration the interest of public policy.[39] The behaviour displayed by the defendants is against public interest and should not be encouraged in society. Taking this into account, Kyd, Elliot and Walters argue that this conclusiondisplays “…legal moralism prevailing over human autonomy …”[40] and that human beings have the right to do with their body as they please.

Although there was nevertheless an intention to cause harm, it could be argued that this was only intended for sexual pleasure and not as a means of torture thus showing the legal system criminalising people for their sexual preferences. This is controversial as what occurs within the bedroom is arguably not the business of the law. Despite this opinion, some people would contend that the legal system must intervene in order to protect the people involved, for example within cases of domestic abuse. If the law can intervene to protect the victims of DV, then surely it has the right to protect people from other types of severe injury. In the Cambridge Law Student Review (2009), Falsetto puts forwards that the judgement in Brown may be considered harsh as there is no consensus to what society deems ‘immoral’. She suggests that “…religion is a powerful source of morals in any society…”[41] and therefore the conduct of homosexuality and sado-masochism in Brown goes against the word of religion. It could be argued that the judges reached this decision not to protect the public from harm, but to promote heterosexual relationships. This argument can be supported by comparing both Wilson (1996) and Brown (1994). Both instances display harm being cause of a sexual nature, however one was homosexual and the other was between a man and a woman. With this in mind, it should be noted that the outcome of Brown may have been different in today’s society where the opinions of homosexual relationships have changed.

Moreover, it is obvious that the courts categorise harm in different ways. With regards to the transmission of undisclosed diseases, the only acceptable defence would be the presence of informed consent.[42] For example, if the defendant has informed the victim of the disease and they continue with sexual intercourse, then it would be unfair to penalise the defendant for an Offence Against the Person. Canadian courts highlight that using a condom shows willingness to protect against the disease, regardless whether it broke or not, which could provide a defence.[43] However, it could be argued that the defendant should foresee the risk of transmission, despite the use of a condom.[44] When comparing this to Brown it seems contradictory as it is stated that there is no defence to the infliction of harm upon another. Applying this idea to the precedent in Dica, it could be argued that, even if informed consent was given, the victim was still subjected to HIV thus inflicting severe bodily injury. This means that, even though the victim may consent, they may not legally consent as the harm caused is too significant.

In conclusion, with reference to the quote, the criminal law generally does not recognise consent as a defence to ‘serious bodily injury’; where the victim has been physically wounded. Neither is it accepted when the individual lacks the legal capacity to make that decision as they’re either mentally incapable or underage. However, the criminal law does recognise a few exceptions with regards to tattoos, piercings and sports, although there is always a line to be drawn. For example, one consents to a certain degree of injury when taking part in sports, but if the injury is out of the bounds of what is ‘normal’ conduct of the game then that is unlawful.  

Bibliography

Articles / Journals:

• L Brosnan and E Flynn, “Freedom to negotiate: a proposal extricating ‘capacity’ from ‘consent’” International Journal of Law in Context (2017)
• B Falsetto, “Crossing the line: morality, society, and the criminal law” Cambridge Law Review (2009)
• D Hughes, “Condom Use, Viral Loas and the Type of Sexual Activity as Defences to the Sexual Transmission of HIV” Journal of Criminal Law (2013)
• H Hurd, “The Moral Magic of Consent” Legal Theory (1996) 121-146
• S Leake, “Contact sports: application of defence of consent” Criminal Law Review (2005)

Books:

• M Allen, Criminal Law (14^th Edn. Oxford University Press 2017)
• C Elliot and F Quinn, Criminal Law (11^th Edn. Pearson Education Limited 2016)
• J Herring, Criminal Law Texts, Cases and Materials (7^th Edn. Oxford University Press 2016)
• M Jefferson, Criminal Law (11^th Edn. Pearson Education Limited 2013)
• SR Kyd, T Elliot and MA Walters, Clarkson and Keating: Criminal Law (9^th Edn. Thompson Reuters 2017) 455]
• H Spandler, J Anderson and B Sapey, Madness, Distress and he Politics of Disablement (1^st Edn. Policy Press 2015)

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[1] C Elliot and F Quinn, Criminal Law (11^th Edn. Pearson Education Limited 2016) 406

[2] Sexual Offences Act 2003 s.74

[3] Sexual Offences Act 2003 s.30 (b)

[4] Sexual Offences Act 2003 s.9 (1)

[5] H Hurd, “The Moral Magic of Consent” Legal Theory (1996) 123

[6] J Herring, Criminal Law Texts, Cases and Materials (7^th Edn. Oxford University Press 2016) 369

[7] M Jefferson, Criminal Law (11^th Edn. Pearson Education Limited 2013) 495

[8] H Spandler, J Anderson and B Sapey, Madness, Distress and he Politics of Disablement (1^st Edn. Policy Press 2015) FIND PAGE NUMBER

[9]  Collins v Wilcock [1984] 1 WLR 1172

[10] Collins v Wilcock [1984] 1 WLR 1172

[11] Ibid

[12] Herring (n 5) 324

[13] Ibid

[14]  Collins v Wilcock [1984] 1 WLR 1172

[15] McMillan v Crown Prosecution Service [2008] EWHC 1457

[16] J Herring (n 5) 323

[17] Ibid

[18] R v Dica [2004] EWCA Crim 1103

[19] The Mental Capacity Act 2005 s.2(1)

[20] M Allen, Criminal Law (14^th Edn. Oxford University Press 2017)447

[21] Sexual Offences Act 2003 s.9(1)

[22] Burrell v Harmer [1967] Crim LR 169

[23] R v Jones [1987] Crim LR 123

[24] L Brosnan and E Flynn, “Freedom to negotiate: a proposal extricating ‘capacity’ from ‘consent’” International Journal of Law in Context (2017)

[25] Ibid

[26] SR Kyd, T Elliot and MA Walters, Clarkson and Keating: Criminal Law (9^th Edn. Thompson Reuters 2017) 455

[27] R v Billinghurst [1978] Crim LR 553

[28]  R v Barnes [2004] EWCA Crim 3246

[29] Ibid

[30] S Leake, “Contact sports: application of defence of consent” Criminal Law Review (2005)

[31] Ibid

[32] R v Wilson [1996] Crim LR 573 

[33] Offences Against the Persons Act (1861) s. 47

[34] R v Donovan [1934] 2 KB 498

[35] R v Brown (Anthony Joseph) [1994] 1 A.C. 212 (HL)

[36] Allen (n 20) 405

[37] R v Brown (Anthony Joseph) [1994] 1 A.C. 212 (HL)

[38] Offences Against the Persons Act (1861) s. 47

[39] Lord Templeman in R v Brown (Anthony Joseph) [1994] 1 A.C. 212 (HL)

[40] SR Kyd, T Elliot and MA Walters (n 25) 450

[41] B Falsetto, “Crossing the line: morality, society, and the criminal law” Cambridge Law Review (2009)

[42] R v Konzani [2005] EWCA Crim 706

[43] D Hughes, “Condom Use, Viral Loas and the Type of Sexual Activity as Defences to the Sexual Transmission of HIV” Journal of Criminal Law (2013)

[44] S H Bronitt, “Spreading Disease and the Criminal Law” [1994] Crim LR 21