Consent

Question 1

what is consent?

Answer 1

a common law defence available for assault and battery but not for ABH and above unless for good reason

Question 2

what case example established the law of consent?

Answer 2

Brown - 5 male Ds charged with ABH and wounding due to consensual homosexual sadomasochistic activities. no defence claimed.

Question 3

what is the two part test for consent?

Answer 3

1. was the consent real (legal)?
2. was the injury for good reason and within the rules of each category?

Question 4

what are the 3 categories under the first part?

Answer 4

1. fraud - did V know nature and quality
2. informed consent - making V aware of what they’re consenting to
3. genuinely believed V consented, may get defence

Question 5

what case example can be used for the first part of consent?

Answer 5

Dica - Fully informed consent means consenting to the sex and the HIV/AIDS. No defence.

Question 6

what are the 6 categories of part 2?

Answer 6

1. contact sports
2. surgery
3. lawful chastisement
4. tattooing and branding
5. horseplay
6. sexual activity

Question 7

what does ‘contact sports’ mean?

Answer 7

agreeing to the contact that is within the rules of the sport

Question 8

what case example can be used for ‘contact sports’?

Answer 8

Barnes - V suffered a leg injury from a tackle. tackle was fair and by the rules so defence was claimed.

Question 9

what does ‘surgery’ mean?

Answer 9

1. must sign a consent form
2. FGM - no defence
3. both parents must consent to a child’s circumcision

Question 10

what case example can be used for ‘surgery’?

Answer 10

J - parents didn’t agree on circumcising. consent of both needed.

Question 11

what is ‘lawful chastisement’?

Answer 11

allowed assault/battery on a child. ABH of more is illegal and receives no defence

Question 12

what does ‘tattooing and branding’ mean?

Answer 12

can consent to a tattoo or branding
body modification is illegal

Question 13

what case example can be used for ‘tattooing and branding’?

Answer 13

R v BM - D charged with bosh modification of 3 clients. no defence claimed

Question 14

what is ‘horseplay’?

Answer 14

rough friendly violence. consent can be implied.

Question 15

what case example can be used for ‘horseplay’?

Answer 15

Jones - Ds threw V in the air, V landed on back injured. Defence was claimed as it was implied consensual horseplay

Question 16

what does ‘sexual activity’ mean?

Answer 16

advertent - hurting for sexual pleasure, no defence claimed
inadvertent - accidentally hurting someone during sexual activity, defence claimed
Domestic Abuse Act 2021 - gave these rules to reduce domestic violence

Question 17

what case example can be used for ‘sexual activity’?

Answer 17

Slingsby - D cut V internally whilst wearing a ring and V developed septicaemia and died. defence was claimed as consent was given to insert the finger

Question 18

what are some positive AO3 points on consent?

Answer 18

common law - flexible, good for amending.
separation of powers - judge made law but Children’s Act and Domestic Abuse Act is parliamentary law.
Both parents must consent to a circumcision.

Question 19

what are some negative AO3 points on consent?

Answer 19

does not satisfy rule of law and parliamentary sovereignty.
sports rules - too strict, what if your intention was to play by the rules?
unfair on victims, if D ‘genuinely believed’ V consented they can still claim defence.
should the law have a say on our sex lives?