Defence - Consent

Question 1

What are the two elements for consent?

Answer 1

• the victim consented or the defendant believed the victim consented
• the offence is one which a victim can consent to

Question 2

What offences can the victim consent to?

Answer 2

General rule - only assault or battery

Offences if relevant exception applies

If ABH is caused but D intended only to commit a battery with consent of victim and D did not see risk of inflicting ABH.

Question 3

What are the valid exceptions where someone can consent to ABH and above?

Answer 3

• medical treatment
• sport
• horseplay
• tattooing, body piercing and adornment
• sexual gratification/accidental infliction of harm
• lawful correction of a child

Question 4

Is there a limit to consent that can be given to sport?

Answer 4

Criminal liability will only attach to behaviour that sufficiently grave to be criminal.

Must go beyond that which a player can reasonably accepted/expected in the sport in question.

Question 5

What will and will not be covered by consent to tattooing, body piercing and personal adornment?

Answer 5

Yes - branding

No - removal of ear, nipple, division of tongue

Question 6

What limits are there to exception of sexual gratification?

Answer 6

• person cannot consent to infliction of harm that results in ABH or more for purposes of sexual gratification
• can consent if ABH is risk of STI
• deliberate HIV infection cannot be consented to as GBH not ABH

Question 7

What limits are there to the exception of lawful correction of a child?

Answer 7

• must be reasonable chastisement
• possibly limited by article 3 of ECHR
• all context of force used must be considered
• cannot be relied upon if ABH or above