Consent is a complete defence. If the defendant meets the evidential burden, the prosecution must meet the legal burden to disprove their claim.
Sexual Offences:
Sexual Offences Act 2003:
s(1)(1)(b) - Consent is not (actively) a defence, but a lack of consent is an element of the offence to be proved by the the prosecution.
Offences involving Children:
s9 & s5 – No reference to consent.
Sex with children is always wrong, so consent cannot ever be a defence and the prosecution does not need to prove that the victim did not consent.
The law is setup in this way for a very specific reason: sex in itself is not wrong, but sex without consent it. For this reason the prosecution must prove the absence of consent, rather than the defence proving it was given.
Fraud and Theft:
Fraud:
In fraud, though consent may have been given by the victim, but this is irrelevant as it has been gained by dishonesty. Therefore, it is not a defence.
Theft (Theft Act 1968):
s2(1) – honest belief in consent. The victims consent is not a defence for the defendant, but may show that they lacked the mens rea (the main aspect of theft is the defendants dishonesty).
‘Belief or lack of belief that the owner consented to the appropriation is relevant to dishonesty. But appropriation may occur even though the owner has consented to the property being taken.’ [1]
Homicide:
Consent cannot ever be a defence to homicide.
‘The sanctity of life entails its inviolability by an outsider. Subject to exceptions like self-defence, human life is inviolate even if the person in question has consented to its violation. That is why although suicide is not a crime, assisting someone to commit suicide is.’ [2]
Non-Fatal Offences Against the Person:
Common Assault and Battery:
Consent can be a defence to common assaults.
ABH and GBH (Offences Against the Person Act 1861):
Consent is not a defence to statutory assaults.
Public Interest Exceptions [3]:
Surgery
Contact Sports
Male Circumcision
Religious Mortification
Dangerous Exhibitions
Tattooing and Piercing
Rough and Undisciplined Horseplay
In Brown, a group of men consented to sadomasochistic sexual acts causing ABH. None of the men sustained major injuries or required medical assistance but were recorded performing the acts. The House of Lords majority were unwilling to add new exceptions for ABH/GBH cases and stated that this should be left to Parliament.
Mustill LJ (dissenting): Consensual causing of ABH is not wrong unless there is a public interest in prohibiting; ‘The state should interfere with the rights of an individual to live his or her life as he or she may choose, no more than is necessary to ensure a proper balance between the special interests of the individual and the general interest of the populace at large.’
In Wilson, D branded his wife’s buttocks. He argued consent as a defence and that branding was analogous with tattooing. The appeal was allowed as the act was performed in the privacy of their marital relationship.
In Emmet, heterosexual partners were involved in sadomasochistic sex. Consent was held to be no defence.
In R v M, M removed an ear, a nipple and split the tongue of V carefully in a sterile environment with full consent. No analogy was drawn between body modifications / mutilations and tattooing / piercing.
In Dica, the issue arose as to whether V can consent to have sex with D who they knew to be HIV positive. The court held that V could consent to the risk of the transmission.
Resources:
References:
[1] R v Hinks [2000] (Rose LJ in CA approved by Lord Steyn at 247) [2] Airedale NHS Trust v Bland [1993] AC 789 (Hoffmann LJ) [3] R v Brown [1993] UKHL 19, [1994] 1 AC 212
Cases Mentioned:
R v Brown [1993] UKHL 19, [1994] 1 AC 212
R v Wilson [1996] 2 Cr. App. R. 241
R v Emmet Times (1999)
R v M(B) [2018] 3 W.L.R. 883 [42]
R v Dica [2004] 3 ALL ER 593
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