Consent to bodily harm and criminal law

Extract

[...] As such, it was held that it was not in the public interest to convict and “would be contrary to the principle to treat as criminal activity which would not otherwise amount to assault because during the course of that activity an injury occurred[28]”. However, in terms of legal certainty, the decisions in Wilson and Slingsby clearly depart from Boyea and Brown, which both resulted in convictions. The uncertainty caused by the overriding public policy factor is further evidenced by the contrasting decision in R v Emmett[29], the Court of Appeal upheld conviction of defendant for lighting wife's breast with a fuel and match as part of sexual foreplay. [...]

[...] The imposition of criminal sanctions were thereby reinforcing acts that were morally wrong and unacceptable social behavior and consistent with the case of AG AG's reference (No 6 of 1980),[21] where Lord Lane CJ asserted that is not in the public interest that people should try and cause or should cause each other actual bodily harm for no good reason.”[22]. Moreover, in Brown Lord Templeman highlighted the overriding policy motivated rationale for the outcome and asserted that “Society is entitled and bound to protect itself against a cult of violence. [...]

[...] As such, it is submitted that there is a need for clear principles to be developed in relation to consent in bodily harm cases as the current ad hoc approach perpetuates uncertainty and arguably treads a difficult line between public protection from harm and criminalization of private affairs. BIBLIOGRAPHY Michael Allen (2007) Textbook on Criminal Law, 9th Edition Oxford University Press. C. Elliot & F. Quinn (2006). Criminal Law. 6th Edition Longman. Jerome Hall (2005) Principles of Criminal Law, The Lawbook Exchange Limited. [...]

[...] This is particularly evident with regard to the court's approach to consent and sexual activity involving the deliberate infliction of harm, which is not seen as fulfilling any particularly useful public interest and has there not been an area where courts are keen to extend the defense[17]. For example, in R v Boyea[18], the defendant had put his fist in the plaintiff's vagina causing serious injuries. Whilst the court accepted that there was a degree of harm to which the plaintiff could be said to have validly consented during heterosexual interplay, which might now be greater than was case when R v Donovan was decided; the court felt that the actual harm caused in Boyea far exceeded the level of injury to which she could have validly consented. [...]

[...] Nevertheless, the court in Donovan did acknowledge that there were exceptions to the general presumption against consent as a defense to bodily harm and the case law demonstrates the emergence of three central categories in this area. The first category related to lawful sporting activity where the participants are bound by rules and regulations. The approach to consent in lawful and regulated sporting activity has remained consistent in the judicial approach and was reflected by the views of the Law Commission in the consultation paper “Criminal law: Consent in the Criminal Law[10] , which extrapolated that participating in an activity that is widely regarded as beneficial should not be regarded as being against a person's interests. [...]