Consent (OAPA defence)

1. R v Brown (1990)

   Nota:

   • Gay S&M club raided in 'operation spanner'.  No-one seriously harmed by found guilty of ABH. Consent not accepted as a matter of 'public policy'.
2. 'Good reason' exceptions to the harm rule
   1. Sports

      Nota:

      • Contact sports (rugby, boxing etc)
      1. within the rules
         1. R v Barnes (2004)

            Nota:

            • For criminal liability the behaviour must be clearly outside the rules and norms of the game.  EG a slightly late tackle will not be a criminal offence 
   2. Body adornment
      1. Tattoos, piercings
         1. R v Wilson (1996)

            Nota:

            • D branded his wife with a hut knife.  Court held this is similar to other body adornments and consent is accepted as defence 
   3. medical treatment
      1. informed consent
   4. Sexual activity "without malice"
      1. Slingsby (1990)

         Nota:

         • V died after being damaged during a risky sexual act.  D was her husband. Court held that criminal law has no place in dictating sexual activity carried out without malice.  
   5. Rough play, horseplay
      1. r R v Jones (1987)

         Nota:

         • Injured friends when playing roughly, throwing them into the air.  Consent was accepted.  
3. cannot consent to be killed
   1. Confirmed in Pretty v UK 2002

      Nota:

      • Human Rights euthanasia case.  Appellant lost her case. Consent will NOT offer  a defence for killing.  

1. Submission not the same as consent
   1. R v Olugboja (1982)

      Nota:

      • girl who saw her friend violently beaten and raped, did not fight back when SHE was attacked by the same man. 
2. Consent to the nature and quality of the act
   1. R v Dica (2004)

      Nota:

      • women who consented to sex in ignorance of D's HIV status did not consent to exposure to the risk of infection
   2. Tabussum (2000)

      Nota:

      • Women who consented to a breast examination for 'scientific purposes' .  Their consent was not a valid defence because D did not carry out for this purpose.  
3. Mistaken consent
   1. Can use defence where genuine belief in consent
      1. R v Aitken (1992)

         Nota:

         • Airforce officers who set fire to an unconcious colleague, believing that he was consenting to be part of the game.  

Nota:

• D 'spanked' his girlfriend for sexual gratification.  Not liable for OAPA

Nota:

• should consent be a defence in cases where a person has made an informed choice to die?

Nota:

• is the 'sexual activity' in Brown really very far removed from that in Slingsby?   Criticism that there is a homophobic moral element to the decision in Brown.