The Learning & Resource Section
BACK TO CRIMINAL LAW

The Defence of Consent

The Defence of Consent


The defence of consent is a justificatory defence. It is said to be justificatory because conduct is regarded as justified because if criminalised it could go against a person's individual freedom and autonomy. A person must be free and full to be said to hold true consent. This defence may operate to defeat an element of the actus reus of a crime and render the action lawful. For some crimes, like rape and sexual assault, consent (or lack of it) is a definitional element of the offence. For other offences, like assault, consent can operate in certain circumstances as a defence. The types of conduct where consent is valid are unclear. The availability of consent as a defence to assault is shaped by considerations of public policy and private morality.


Informed Consent


In order to constitute valid consent that would absolve a defendant from criminal liability the consent must be positive and genuine. The person giving the consent must comprehend the nature of the act in which they are consenting to. And the consent must not be vitiated by fraud. As a matter of public policy and morality, a person cannot subject to being harmed. For example, one of the most important cases when it comes to consent is R v Brown. This case dealt with sadomasochistic activities in which all parties consented to in the private of their home. It was held that such activities cannot be consented to because it is not in the public interest. However, when it comes to sport or surgical interference, consent to harm is allowed. This highlights issues with the defence of consent and the morality that public opinion holds when it comes to consenting to harm.

R v Brown (1993)
R v Brown (1993)
There were five adult men who were all consenting sado-masochists. They were convicted of offences of assault causing actual bodily harm (s 47 Offence

Your Are Correct !
Your Are Incorrect !