Consent Evaluation

Cards (24)

  • AO1
    ·         Set out in AG Ref (No6 of 1980)
  • Note:
    ·         Brown – not available if used for sado masochistic sexual activity.
    ·         Domestic Abuse Act 2021 – rough sex defence will no longer be able to be used.
  • Exceptions for using consent as a defence
    • Sport
    • Medical procedures
    • Rough horseplay
    • Every day social contact
  • Sport
    • Injury must be inflicted during a properly recognised sport played within the rules
  • Medical procedures
    • Includes dentistry, piercing, tattooing, surgery, blood tests, and branding
  • Rough horseplay
    • Rough play between people of the same age with a genuine belief that the victim consented
  • Every day social contact
    • Includes accidental bumping into another person
  • Injury is inflicted during a properly recognised sport

    The defence of consent will be available (Barnes)
  • Medical procedures include branding
    But not extreme body modification (BM)
  • Rough play between people of the same age
    Only needs a genuine belief that the victim consented (Jones and Aitken)
  • Accidental bumping into another person

    Is considered every day social contact (Wilson v Pringle)
  • If there was not a sporting exception contact sports would be illegal. It is clear from case law that the sport must be a ‘properly conducted game/sport’ and played within the rules. If played outside of the rules or an ‘off the ball’ tackle in say rugby or football or was deliberately aiming to injure then the defence may fail (Barnes). This exception allows contact sports to be played without too many restrictions. Sport is good for society as it encourages exercise and social bonding.
    1. There are problems with constitutes rough horseplay? Needs a better definition.  Otherwise, it could be abused as iJones where there could have been bullying. The issues surrounding the 2 rough horseplay cases are that the defendant only needs to have a genuine belief that the victim consented.  The belief does not have to be reasonable. The other issue is that in Aitken it was allowed even though they were both intoxicated which seems unfair on the victim who may not have consented.
  • Medical procedures included
    • Medical procedures
    • Dentistry
    • Tattooing
    • Piercing
  • In Wilson the court allowed the defence stating that branding came under the medical exception
  • Medical exception
    A very broad interpretation
  • In Brown the defence was refused
    It was not in the public interest to allow the defence to extreme S&M activities
  • The Domestic Abuse Act 2021 reinforces the Brown decision
  • ‘Rough sex defence’ is no longer available
  • ‘Rough sex defence’ is no longer available

    It is not in the best interests of the public
  • In BM the courts ruled that consent cannot be used as a defence to extreme body modification
  • The courts said it was only something that parliament could say whether it would be allowed
  • This has been criticised by those who think it breaches their human right to a private life
  • There have been many right to die cases but they have all failed (Pretty) on the basis that it is not in the best interests of the public. An Assisted Dying Bill 2015 was rejected by 70% of MP’s despite support from the population. 2022 the HL’s put forward a bill to enable adults who are terminally ill to be provided at their request with specified assistance to end their own life. This is currently at committee stage in the HL’s and would have to pass in the House of Commons before it became law.