OAPA ESSAY PLAN

Question 1

Intro

Answer 1

Current law on ABH is wrong

Law currently only allows consent, which is inconsistent and unexplainable

Consent should make harm lawful (R v Brown) unless it is protect otheer individuals

Paternalistic -> Moralism -> Liberalism

Question 2

Paternalism

Answer 2

Paternalistic approach consent should not be allowed in all cases (compared to above) where it is against the public interest, stopping people harming themselves

Sometimes it is for the best interest of themselves for the courts to intervene

Supported by exceptions R v Brown ( R v Barnes) sport namely is allowed (cosmetic surgery and other cases0

• This shows R v Brown is a control mechanism

Question 3

Critics of the Paternalistic Approach

Answer 3

But what is best for public interest?Policy issues?

This falls short of societal expectations and current trends. It is also incredibly inconsistent.

Think of the case of Dica (2004): Exception was made — people can consent to risk of STIs during sex. Why is this justified and yet sadomasthic injuries are not?

R v Wilson is also another potential example

Public Interest is inconsistent + arbitrary

Should these difficulties override autonomy

Question 4

Moralism

Answer 4

Denis Baker - acts that are immoral like Sado should be criminalised

Lord Templeman “infliction of pain is evil” -> Maybe this is a more realistic interpretation

Good rebuttal to the law being arbitrary -> Some acts (that the public make exceptions for)

Question 5

Criticism of Moralism?

Answer 5

This once again leads to a discussion as to whose morality?

R v Wilson also makes this extremely difficult to justify?

Question 6

Liberalism

Answer 6

Consent should make the crimes in R v Brown lawful (The view that I want to adopt)

The law should respect the individuals decision to be harmed, it is for their own sexual gratification the law should not come and say that is wrong

Therefore, once again the law imposing a blanket ban on such a concept is a restriction to one’s autonomy.

Ashworth Fair labelling principle supports this claim -> Is it fair that in R v Brown one is sentenced even if consensual

Question 7

Criticism of Liberalism? And rebuttals?

Answer 7

While individuals may have the right to consent to their own harm (as in certain activities), this consent may be overridden when it harms the well-being of others.

Sadomasochism as a Cover for Domestic Violence: The argument extends to the idea that what might be presented as consensual sadomasochism could, in practice, provide a cover for more harmful behaviours like domestic violence.

This was seen in cases like Emmett (A man set fire to his partner’s breasts during sex. The court found that consent was not a valid defence due to the serious harm caused. This was despite the private nature of the act), where what might appear to be consensual sadomasochism could actually be a form of abuse masked as consent.

The concern is that the legal recognition of consent in such cases could blur the line between voluntary acts and coercive or abusive relationships.

In other words, if the law allows for consent in these situations, it might inadvertently allow harmful behaviors that go beyond what was originally consented to.