Level of harm

It seems grave harm is a factor in considering consent (Barnes (2004)).

So despite genuine consent a defendant who causes serious harm may still be liable. In Leach [1969] the defendants nailed the victim to a wooden cross, piercing his hands with six inch nails. Despite the fact the victim had organised to be crucified and the defendants were acting at his request, they were found guilty of a S18 offence under the Offences Against the Person Act 1861 (OAPA 1861).

However it can be seen as inconsistent that consent is allowed in situations where injuries are common. Boxing is a dangerous sport where opponents aim to injure one another, to the extent that a doctor must be ringside Watson v BBBC [2001], but consent can apply. The horseplay exemption meant defendants who had caused serious harm by setting on fire to the flame resistant clothing had their convictions quashed on appeal (Aitken (1992)).

The Law Commission agrees law should set a limit to the injury to which a person may consent (Consent and Offences Against the Person) and allow for public policy exemptions.

Intention

Consent may be present, but may not be sufficient if the aim of the activity is to cause harm.

Defendants participated in sadomasochistic activity and no one suffered permanent injury. Defendants argued the acts were consensual but the judge did not allow defence. On appeal the court confirmed consent could be only be used in cases of battery, causing any greater injury was not in public interest. Lord Templeman said ..violent cruelty is injurious and predictably dangerous. I am not prepared to invent a defence of consent for sadomasochistic encounters… (Brown (1993)).

Protection

The need to protect the vulnerable raised as an issue with consent. A defendant was found guilty of ABH in relation to tattooing two teenage boys who gave their consent. It was held the boys were unable to appreciate the nature of the act so could not give true consent (Burrell v Harmer (1967)).

However, protection of young victims is not always maintained in UK law. Defendant often severely beat an 8 yr old, with a garden cane, he argued such action was reasonable and necessary because the victim was a difficult child. The European Court of Human Rights found the UK failed to provide adequate protection to children in such situations (A v UK (1998)).

Valid consent

The application of the law in relation to whether consent is valid seems unclear, especially in terms of the victim’s necessary knowledge.

In cases of fraudulently obtaining consent conflicting conclusions have been reached. In Richardson (1998) a suspended dentist, who treated patients was found not guilty of assault. However in Dica (2004) the defendant, knew he was HIV positive had unprotected sex with the victims who became infected and he was found guilty.

Mistaken belief in consent has been allowed. Defendants and the victim often indulged in horseplay and the defendants believed the victim consented when they dropped him from a balcony. They were convicted of S20 offences under OAPA 1861 but the Court of Appeal held their belief in the victim’s consent should have been considered (Richardson and Irwin (1999)).

This seems in stark contrast to decisions in cases where genuine consent existed but was not allowed, such as Leach [1969] and Brown (1993).

The Law Commission has put forward that subsisting, free and genuine agreement should count as consent to a sexual act by another (Consent in sexual offences). The Sexual Offences Act 2003 was later brought in but problems still exist in some cases .

Individual freedom

The extent to which individual freedom to engage in consensual activity is upheld seems unclear.

Lord Lane noted ..it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim, it’s not in the public’s interest that people should try to cause, or should cause, each other bodily harm no reason... (Attorney General’s References (No6 of 1980) 1981).

However in Wilson (1996) a defendant branded his initials, with a hot knife, on his wife buttocks. She had requested the homemade tattoo but had to seek medical attention for burns. He was convicted of ABH under S47 of OAPA 1861. On appeal it was found it was a situation of personal adornment and not in the public interest to criminalise such consensual acts.

In some cases, such as Aitken (1992), consent is accepted, despite serious harm. In other cases of harm the courts will intervene despite presence of consent. In his dissenting judgement Lord Mustill commented .. the state should interfere with the rights of the individual no more than is necessary... (Brown (1993)).

This confusion raises the issue whether consent should be reflected in sentencing but not in the verdict. The Law Commission’s 1994 consultation paper Consent and Offences Against the Person discusses the view that a person's body is their own and that the law has no place in dictating what can be done with it. The approach is rejected with the Commission highlighting illegal drugs as an example where the law limits complete bodily freedom.