Consent In Criminal Law
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
In criminal law when a criminal act is alleged to have been committed, the essential
requirement for the crime is that the victim was opposed to the crime. One of the available
defences when a criminal act is committed is that the victim actually gave consent to the
acts . The defence of consent is available to certain case that result in bodily harm which
includes assault and battery. For instance, in sports there is a physical contact. Participants
are deemed to have consented to the physical contact and possible bodily harm. In order to
establish consent in such scenario there are three elements that do exist. One is that a person
cannot consent to act of serious bodily injury, second is the harm must be a reasonable
foreseeable aspect of the conduct and would reasonably be accepted the person must receive
some benefit form the conduct such that the conduct was justified.
The defence of consent also applies to crimes which consent is an essential element such as
rape and sexual assault. Both require that victim to consent before engaging in such act and
lack of it lead to the crime of rape or sexual assault.
Establishing consent
A person who relies in the defence of consent must also prove to the jury that indeed the
parson who gave the consent was legally able to do so. A mere mention that the person
consented is not conclusive enough as a defence. In criminal court conduct is not enough to
persuade the court. For instance, the consent is incapable of being given when the person
giving the consent has no authority to provided consent like in the case of the a child who is
considered a minor, insane, intoxicated or unable to make a reasonable judgement about the
conduct in question.
In the case of the r v dica the defendant on this case suffered from human immunodeficiency
virus (HIV) as a result of unprotected sexual intercourse with two complainants who had
been willing to engage but unaware of his condition at the time. The defendant was charged
with two offenses of causing grievous bodily harm contrary to s 20 of offenses against the
person act and assaut. He denied the charges claiming that the sexual intercourse had been
consensual. The judge ruled that it was open to the jury to convict the defendant and that
whether or not the complainant had known of the defendant condition any consent between
them was irrelevant and provided no defence. The defendant chose not to give evidence and
the issue was whether the complainant had consented to sexual intercourse was not left to the
jury. The defendant appeal and succeeded and the issue was whether the complainant had
consented to the risk of the sexual transmitted infection and to whether they knew the
defendant HIV condition. Whether the complainant had in fact consented to the risk of the
disease and consequently the defendant has a defence to an offence was an issue of fact
which was case specific. Owing to those circumstances the conviction the case was ordered
for retrial. Mohammed was sentence to consecutive 3 and 4 years. The appeal preferred raise
issue of legal and public about the circumstance which the defendant may be found guilty of
criminal offense as a result of infecting another person with sexually transmitted disease.
It is not in dispute that at least on the majority of the occasion’s sexual intercourse was
unprotected and the appellant knew but he chose to conceal this fact. In the case of R v brown
& ors [1994] 1 AC 212 deprived the complainant of the legal capacity to consent to such
serious harm. In r v Clarence had sexual intercourse with his wife when she did not know he
was suffering form gonorrhoea. It was not suggested he intended to cause her to become
infected and she would not have consented. She became infected and suffers grievous bodily
harm. He was convicted of two counts where he appealed and succeeded . A husband could
not be indicted for rape of his wife. This is irrevocable privilege r v r [1992] 1 AC 599 sexual
intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be
treated as if it were consensual. In the words of Wills j consent obtained by fraud is no
consent at all is not true as a general proposition either in fact or in law. If a man meets a
woman in the street and knowingly gives her bad money in order to procure her consent to
intercourse he obtains consent by fraud but it would be childish t say that she did not
consent .
In r v Emmett, a woman agreed to allow her partner to cover her head with a plastic trying it
tightly at the neck. On a different occasion she agreed that he could pour fuel from a lighter
onto her breast and set fire to the fuel. On the first occasion she was at risk and lost
consciousness and on the second she suffered burns. Court concluded that brown
demonstrated that the woman’s consent to these events did not provide a defence for her
partner. That violent consent involving the deliberate and intentional infliction of bodily harm
is and remains unlawful regardless of it purpose for both parties. A decision in the court of
appeal in new Zealand and the r v cuerrer [1998] 27 CC in this case to infect an unsuspecting
person wit a grave disease you know you have or may have by behaviour that you know
involves a risk of transmission and that you know could easily modify to reduce or eliminate
the risk is to harm another in a way that is both needles and callous criminal liability is
justified unless there are countervailing reasons .
2. Exceptions to the general rule on consent (1000 words)
This part of the study will handle a discourse on the recognised exceptions to the general rule
as discussed earlier. To recapitulate; when no bodily harm is caused, the consent of the victim
to what happened is always a defence to a charge. Where at least bodily harm is caused,
consent is generally irrelevant because it has been long established in law that, exceptional
situations apart, a person cannot consent to having bodily harm inflicted upon him. This
general rule however has exceptions such as: patients consenting to surgery and physical
injury in the course of contact sports such as football or boxing.
Emphatically, it is trite law that one who consents lacks the right to complain. There are
circumstances that the law will sanction the right of a person to lawfully consent to the
application or threat of actual or grievous bodily harm. Therefore the common law comprises
situations in which this type of consent can be lawfully given.
2.1 Sporting activities
Lawful and organized sporting activities such as boxing or martial arts that involve eminent
risk of causing harm to the consenting. Essentially the use of violence is allowed the
participants having consented to the risk of harm.
In R v Barnes , the appellant made a tackle on an opponent during an amateur game in
December 2002 that lead to sustaining serious injuries. He was charged with inflicting
grievous bodily harm in violation of section 20 of the Offences Against the Person Act 1861.
The prosecution contended that it was the result of a "crushing tackle, which was late,
unnecessary, reckless and high up the legs". The appellant admitted the tackle but claimed
that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and
that any injury caused was accidental. It was not disputed that the victim 's injury was the
result of the tackle and that the injury to his right leg amounted to grievous bodily harm. It
was held; participation in a sport such as football gives rise to implicit consent to a risk of
injury and even grievous bodily harm. The conviction was quashed as it was not grave
enough to be criminal. Essentially, the fact that the participants in, for example, a football
match, implicitly consent to take part in a game, enhances identifying the limitations of the
defence. If what occurs goes beyond what a player can reasonably be regarded as having
accepted by taking part in the sport, this indicates that the conduct will not be covered by the
defence. It is important to note that what is implicitly accepted in one sport will not
necessarily be covered by the defence in another sport.
In the case of Pallante v Stadiums Pty Ltd, the plaintiff sued on negligence against organisers
of a boxing match in respect of injuries affecting his eyesight incurred in the course of a
boxing fight. The defendant argued that because common law prohibits a person from giving
lawful consent to the infliction of actual bodily harm, this rendered the entire bout an illegal
activity in which the blows and attempted blows amounted to assaults for which damages
were not recoverable. Though acknowledging the general common law rule that one cannot
lawfully consent to the threat or infliction of actual bodily harm, the Supreme court noted an
exception to this rule in the case of lawful sporting events in which the accused conforms his
or her conduct to the recognised rules of the game, the sport is not inherently dangerous to
life or limb, actual bodily harm is to be expected as a normal incident of the activity, and the
participants’ predominant motive is not and does not become the of infliction of grievous
bodily harm. Rather, if inflicting such harm is or becomes the accused’s predominant motive,
then the lawful sporting event exception does not apply.
2.1.1 Horseplay
The case of R v Aitken and Others it established the fact that where peculiarity of the activity
involves supports playing of practical jokes and actively interacting physically as a form of
“fun”, participants must accept local standards of contact and injuries that might result.
Therefore the victim in this case who served as a member of the Royal Air Force having
participated in practical jokes played on his companions was admitted as evidence that he had
consented to become a victim when it was “his turn”.
2.1.2 Medical purposes
Some medical procedures more often result in actual or grievous bodily harm. Essentially its
custom that doctors in general practice administer extremely painful injections or perform
other invasive procedures in the cause their work on patients. It is inevitable that actual body
harm has to be inflicted on the patients. Granted the law allows the patients to give lawful
consent to medical procedures that result in harm.
Additionally doctors and all health practitioners have an inherent right to assume a patient’s
consent for necessary treatment.
2.2 Consent by deception
Consent must be given freely voluntarily and knowingly without duress, intimidation black-
mail, exploitation and lack of other options. In R v Clarence , the defendant knew that he was
suffering from a venereal disease at the time he had sexual intercourse and infected his wife.
The court was of the view that had she been aware, she would not have submitted to the
intercourse. The defendant was convicted of inflicting grievous bodily harm contrary to
section 20 of the Offences against the Person Act 1861. On appeal the conviction was
quashed. Mr Justice Willis correctly observed: “consent obtained by fraud is no consent at all
is not true as a general proposition either in fact or in law”.
Reference
Halsburys Laws of England, 4th ed., Vol 11, par. 23.
r v dica [2004] All ER (D) 45 (May
r v cuerrer [1998] 27 CC
R v Barnes [2004] EWCA Crim 3246.
r v Emmett
r v r [1992] 1 AC 599
R v brown & ors [1994] 1 AC 212
R v Clarence (1888) 22 QBD 23
