OATP issues Flashcards
transmitting disease, consent (3 cards)
Transmitting disease
R v Dica: If V consents to the risk of infection of HIV, the consent will provide a defence under section 20
R v Konzani: If V gives informed consent, or D has an honest belief that V consents, to the risk that is a defence; but if V does not consent and D is aware of the risk of infection then he is reckless and can be charged under section 20
R v Marangwanda: D was convicted on the basis that he had passed gonorrhea through a shaving towel
Mawhinney: accepts this puts a burden of disclosure on HIV patients but the balance of rights should fall in favour of disclosure; “The right not to be harmed, the right to life must take precedence over social awkwardness every time”
- rejects proposal that D should only be liable if he denies being infected when asked by V, as it would mean “the onus is on V to stop the crime’s successful commission rather than on D not to commit it in the first place”
Verweij: issue of why the same law does not apply to other communicable disease such as the flu
Consent as a defence
Attorney-General’s Reference (No.6 of 1980): cannot consent to ABH, can only consent to assault or batter; “it is not in the public interest that people should try to cause… each other actual bodily harm for no good reason”
R v Brown: sadomasochists case, court held consent was no defence
- Lord Templeman: results of D’s actions were “unpredictably dangerous”
- Lord Jauncey: “the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer”
- Lord Mustill [dissenting]: “these are questions of private morality; that the standards by which they fall to be judged are not those of criminal law”
R v Wilson: V able to consent to D branding his initials on her buttocks, analogous to tattooing; “Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigations, let alone criminal prosecution”
R v Barnes: violent sports can be consented to; but if there is a foul “quite outside what could be expected” it would be a criminal offence
- A-G’s Reference (No.6 of 1980): exceptional category applies only regulated sports, cannot have a fistfight on the street and call it a boxing match
R v Jobidon: exception of bravado; stuntmen agreeing to perform daredevil activities are engaged “for the good of the people involved, and often for a wider group of people as well”
Exception: rough and undisciplined horseplay
- R v Jones: children playing around and throwing V up in the air, V was dropped and ruptured a spleen; V’s consent or Ds’ belief in consent provided a defence
- Richardson v Irwin: students throwing each other off balconies
- R v Aitken: Ds set V on fire
R v BM: surgery can be consented to but body modifications (such as ear or nipple removal) cannot
Objection to OATPA 1861
Horder: sees simplicity of the language as a vice, preferring a statute which defines precisely the wrong D has done to V (e.g. castrates, disables, disfigures, dismembers, etc…)
- issue that this may make it harder to convict D
There is a big difference in maximum sentences for the offences
- Gardner: responds that the offences shouldn’t be seen as a hierarchy, but as two distinct offences; they should be regarded “as offences which are, in essence, neither more serious nor less serious than each other”
