Consent Flashcards
(11 cards)
Introduce
Consent
Apart of Consent
- The defence is defined in common law.
- D raises defence, prosecution proves lack of consent
Describe
Real Consent, Consent and Fear, Implied Consent
Tabassum, Olugboja, Wilson V Pringle
Apart of elements of consent.
Real Consent
There must be no fraud or deception and the D must know….
Tabassum - The Nature and Quality of the acts or the Identity of the D
Consent and Fear
Olugboja - Defence fails if given through co-erciscion or submission in fear.
Implied Consent
Consent to minor touches in some situations.
Wilson V Pringle - Ordinary Jostlings of Human Life can't be battery as implied consent.
Describe
Capacity to Consent, Fully Informed Consent
Burrell v Harmer, Dica
Apart of elements of consent
Capacity to Consent
V needs the legal capacity to consent to the injuries.
Burrell v Harmer - V's did not have legal capacity to consent, as did not understand the nature of the act.
Fully informed Consent
V must have full knowledge of the risks of the act, in order to consent
Dica - The victim must consent to both act and risks involved
Introduce
What is Consent a defence for or not?
Apart of Consent Exceptions
- Widely available for minor offences.
- Not available for S.47 or S.20, unless an exception.
Describe
Consent in Sports, Surgical Interference [With Example], Body Modification
Barnes, CPR, Wilson, BM
Apart of Consent Exceptions
Consent in Sports
- Can be a defence to more serious injuries, if within the games rule.
Barnes - Defence fails if serious and grave breach of rules of game.
Surgical Interference
- If serious injuries are cuases in reasonable surgical interference, defence is allowed. Such as broken ribs in CPR.
Tattooing, Body Modification
Wilson - Consent is available for tattooing and other related acts. BM - Consent is not available to extreme body modification.
Describe
Horseplay, Sexual Activity, Euthanasia
Aitken, Brown, Emmett, Pretty
Apart of Consent Exceptions
Horseplay
- Rough and Undisicplined play
Aitken - Defence for serious injuries, so long as D didn't intend injury, and believe V would genuinely consent to the horseplay.
Sexual Activity
- Defence for minor injuries, but not for serious injuries.
Brown, Emmett - Consent not available to degrading or humiliating BDSM treatment.
Euthansasia
~~~
Pretty - Consent is not a defence to assisted suicide.
Evaluate
Public Policy Considerations
- What is law heavily influenced by? Whose need does it respond to?
- Inconsistencies between Wilson and Brown? What would this regulate and not be agreed upon?
- Do people agree with ruling in Brown, why? Is interference necessary
Apart of Consent Evaluations
- Public Policy, responds to the publics need.
- Wilson is alos humiliating and degrading despite not worser injuries than in Brown, public won’t agree on private acts being regulated.
- Some agree as serious injuries and humiliation are caused, but is it really necessary for state to intefere with private acts?
Evaluate
Horseplay
- When do courts accept consent?
- Is it needed in society? What could D have mistaked?
- Fair on V? How to reform
Apart of Consent Evaluation
- During serious horseplay injuries.
- Friendly Violent Play needed for fun with friends, D could also have made a genuine mistake.
- Not fair on V, as didn’t consent to the injury, reform by removing Horseplay.
Evaluate
Consent in Sexual Offences
- What is it not available for? Fair?
- What is it done regardless of? (Brown Emmett) What can’t courts encourage?
- Where is it done? Should law interfere? How does Wilson make this inconsistent?
Apart of Consent Evaluation
- Serious injuries, which is unfair.
- Fair as enforced regardless of sexuality as seen in Brown and Emmett, can’t encourage humiliating treatment.
- Acts done in privacy of home, court shouldn’t interfere, serious injuries occured in Wilson, but allowed which is inconsistent
Evaluate
Ethanasia
- What can no one consent to? Who does this affect?
- Doesnt protect vulnerable people, why?
- Case of Pretty suggests? Should courts keep it as is?
Apart of Consent Evaluation
- No one can consent to death, terminally ill can’t kill themselves.
- Don’t have personal autonomy to end own life
- Courts regularly challenged on this, so it’s not right to keep law as is.
Apply to an Exam Question
Flip
Apart of Consent
Real Consent
Explain if the V gave real consent – look for an agreement, explain why the V did or didn’t know what was going to happen to them and the pain it would cause.
Explain whether the V knew the identity of the D and the true purpose of the activity.
Consent and Fear (If applicable only!)
Explain why the consent of the V was given through fear or coercion
Capacity to Consent (If applicable only!)
Explain whether the V has legal capacity to consent
Do they understand the nature of the act
Do they understand the pain it would cause
Do they understand the permanence of any injuries
Informed consent (If applicable only!)
Explain why the V consents to the act
Explain why the V knows that the there are risks involved and why they consented to these risks.
Exception: Sport (If applicable only!)
Did the incident happen in the normal rules of play? Why?
Was this a severe incident? Why?
Is consent available?
Exception: Tattooing, Piercing and body modification (If applicable only!)
Why did the D commit tattooing, piercing or body modification to the V?
Did the V consent? Why?
Is this an extreme act of body modification? Why?
Is consent available?
Exception: Horseplay (If applicable only!)
Why are the D and V involved in horseplay?
Did the V consent to the horseplay? Why?
Did the D intend to cause the injuries or not? Why?
Is consent available?
Exception: Sexual Activity (If Applicable Only)
What was the injuey caused in the sexual activity?
Is this severe or not why?
Can consent be allowed for this?
Exception: Euthanasia (If Applicable Only)
Is the V terminally ill and requires someone else to kill them?
Explain that consent isn’t a defence for assisted suicide.
