SB: GD: Consent

Question 1

Define consent

Answer 1

Consent is a complete defence. It effectively cancels out what would otherwise be an assault. This is because if a person consents, there is no unlawful force for an offence

Question 2

Explain Express consent

Answer 2

Where we explicitly asked before an activity which would otherwise be an assault such as ear piercing, surgery or dental treatment.

Question 3

Explain implied consent

Answer 3

Given in situations where people inevitably come into contact with each other such as at football matches, on public transport and at concerts. This is ‘everyday touching’

Question 4

Explain Real consent

Answer 4

Consent must be real and without deception or fear or fraud
Deception= R v Dica
Fear= R v Olugboja
Fraud= R v Tabassum

Question 5

Explain the legal principle from
R v Dica

Answer 5

D charged on the basis that he knew he was HIV positive: he had unprotected sexual intercourse with two women who were unaware of his infection

Held: No defence allowed as D Knowing he had HIV recklessly spread it to his victims causing s20 injuries.

Question 6

Explain legal principle from
R v Tabassum

Answer 6

D carried out physical examinations on V’s breasts and demonstrated how they should conduct exams on themselves.

Held: The act done was not one which was consented to, so there was not real consent.

Question 7

Explain legal principle from
R v Olugboja

Answer 7

D denied rape stating V had submitted to sex. V had already been forced to has sex with D’s companion. She was crying but did not struggle or resist or scream.

Held: The court held that there was a difference between real consent and mere submission. Consent had a ordinary meaning

Question 8

Explain consent for children

Answer 8

Children are generally unable to consent on their own behalf.
Gillick v West Norfolk AHA

Question 9

Explain the legal principle for Gillick v West Norfolk AHA

Answer 9

Doctors Prescribed 16yr girl with contraceptives with the knowledge or consent of her parents.

Held: Provided the young person is capable of understanding what is proposed, and of expressing their own wishes they can consent under the age of 18.

Question 10

Explain Consent in mental capacity

Answer 10

If medical staff are acting in the patients best interests, then the absence of consent wouldn’t be unlawful.
Adults must have mental capacity to make decisions and give consent.
F v West Berkshire HA

Question 11

Explain the legal principle for F v West Berkshire HA

Answer 11

F, 36yrs, had mental age of minor and entered a sexual relationship with another patient at the same hospital that she was staying at. Her mother sought an order to sterilise F to prevent pregnancy.

Held: An order to sterilise without consent was granted as it was in F’s best interest as she lacked mental capacity.

Question 12

What can we consent to?

Answer 12

Consent can be a defence to a assault and battery (Donovan) but not for ABH GBH or wounding unless it fits within a court recognised exception.

R V Donovan
R v Slingsby

Question 13

Explain the legal principle for
R v Donovan

Answer 13

D cained a 17yr women for sexual gratification leaving her with some discomfort and bruising

Held: There was no unlawful force as she had consented. where there is consent, no crime had been committed

Question 14

Explain the legal principle for
R v Slingsby

Answer 14

D charged with UDAM after V died from blood poisoning due to small internal cuts becoming infected after vigorous consensual activity.

Question 15

Intentional injury exceptions

Answer 15

1. Aggressive contact sports - (AG Ref No 6 1980)
2. Surgical/medical treatment
3. Ritual circumcision
4. Body modification e.g. tattooing, piercings - (R v BM 2018) (R v Wilson)
5. Sado- masochism - (R v Brown)

Question 16

Explain Aggressive contact sports

Answer 16

Public Matches conducted with protective equipment , a referee and within the rules are lawful. Street fighting and bare- knuckle fighting aren’t lawful due to higher risk to combatants. ( AG Ref No 6)

Question 17

Explain Surgical medical treatment

Answer 17

Most surgery is expressly consented to and has a high benefit to the patient so it’s lawful.

Question 18

Explain Ritual Circumcision

Answer 18

Male circumcison for religious purposes is lawful where both parents agree to it. Female circumsicion is prohibited.

Question 19

Explain Body modification e.g. tattooing, piercings

Answer 19

V will give consent in most circumstances to modifications that are considered to have social utility as personal adornment but can have limits e.g. tongue splitting in R v BM

Question 20

Explain Sado-masochism

Answer 20

Law generally not accepted idea of consent being a defence to harm inflicted during sad-masochism sexual activity for sexual gratification

Question 21

Explain the legal principle from AG Ref No 6 of 1980

Answer 21

Two teenagers consented to a fight following an argument in the street. One had bruising and a bloody nose.

Held: D can’t consent to fighting but the case outlined the five exceptions to consenting for ABH

Question 22

Explain the legal principle from R v Wilson

Answer 22

D carved Initials into wifes buttocks with hot knife for sexual gratification. Her skin became infected and sought medical help.

Held: Regard as akin to tattooing Court held that consensual activity between wife and husband in privacy of there home wasn’t a matter for courts

Question 23

Explain the legal principle from R v Brown

Answer 23

Five appellants convicted on multiple counts of ABH and wounding, injuries during consensual homosexual sadomachist activities.

Held: Consent defence can’t be relied on in offences under s.47 and s.20

Question 24

Explain the legal principle from R v BM

Answer 24

D a tattooist carried out bodily modifications including removing a ear, nipple and tongue splitting procedures.

Held: The modifications amounted to a medical procedure which D wasn’t licensed to carry out.

Question 25

Explain the legal principle from R v Barnes

Answer 25

V injured by D committing a hard sliding tackle in an amateur football match. Held: Conviction quashed as he was playing within the rules of the game

Question 26

Explain the legal principle from R V Jones

Answer 26

Two boys thrown into air as part of 'birthday bumps' by 6 older boys. They wrestle dropped causing a broken arm and ruptured spleen Held: Genuine mistaken belief in someone's consent in horseplay can be a defence event if its unreasonable.

Question 27

Explain the legal principle from R v Aitken

Answer 27

D poured white spirit over his RAF colleagues fire-resistant uniform and set it alight. Previously used as rite of passage for passing training. However, Fire spread rapidly V suffered from 35% burns. Held: D's conviction for s.20 GBH quashed as it was up to jury to decide if D believed they had consent.

Question 28

Explain Properly conducted sports and games

Answer 28

R v Barnes - courts considered the following factors - Intentional infliction of injury will always be criminal - Reckless infliction of injury, did injury occur during play or in a moment of temper or in over-excitement after the game had finished? - off the play injuries are criminal - if play is in the rules and the game doesn't go beyond those boundaries then isn't criminal.

Question 29

Explain Horseplay

Answer 29

Consent to rough and undisciplined play can provide a defence as there was no intention to cause injury, even if D was mistaken in believing that V consented

Question 30

Explain reasonable chastisement of children

Answer 30

Physical punishment of children can be lawful if reasonable and proportionate in the circumstances involving no cruelty

Question 31

Explain Risk of STD/HIV transmission

Answer 31

V can validly consent to the risk of infection during sex provided V was fully informed of the risk.