Defense of Consent for Non-Fatal Offenses against The Person

The non-fatal offences against the person entail various conducts with offences ranging from the most severe assaults causing grievous body harm to typical common law assault. The crimes cause physical harm, and hence, the proof is critical. Equally significant, these offences may be committed without consent. The common traits of these offences are the use or threat of use of violence by the offender. Therefore, the defence of consent in criminal law operates to defeat an element of the crime, making the action lawful rather than unlawful in most cases.[1] Notably, consent has developed from the social consciousness rather law precedent. The consent concept aims to balance personal autonomy and to protect the public. However, consent for non-fatal offences against the person does not offer a defence for deliberate infliction of severe bodily harm, even in scenarios with no intention to cause harm,

The liberation and paternalist vision of the criminal law can conflict in determining appropriate defence for the offences. The conflict allows the public policy-unprincipled approach to determine the circumstance in which an individual may consent to otherwise harmful criminal activities, as R v Brown [1994] AC 212 indicates.[2] The lack of rigid established law makes the court approach such matters based on moral perception. In some cases, the process undermines the fairness that the law is supposed to guarantee. [R v Donovan3and Attorney General’s Reference (No. 6] case establishes that consent entails a defence given some offences do not require harm proof[3]. For the defence to succeed at the primary level, the accused must believe that there is implied consent and the victim is consenting. In DPP v Morgan [1976], there is no requirement the belief reasonably held.[4]

The court in R v Meachen suggests where the accused is reckless; consent should be unavailable to reduce the high level of activities that may lead to severe harm. “it is unlawful to act to beat another person with such a degree of violence that the infliction of bodily harm is of probable consequence, and when such act is proved, consent is immaterial.”[5] As a rule, causing bodily harm cannot be lawful by consent. For instance, under the Offense against the Person Act 1861, for spreading disease, consent by the victim does not justify the ill doings against the victims.[6] The judge in the case R V Dica and R v Koanzani rejected the argument for consent since the victim was unaware of the consequences of sexual encounters with a person with HIV, which may have otherwise influenced her decision.[7] The defendant was found guilty. Consent does not offer a defence to the deliberate infliction of severe bodily harm, even in scenarios where the intention is not to harm.

The court acknowledges several exceptions to the rule. In the case of rough and undisciplined sports and play, the action cannot be considered illegal since the body harm is not the motive of either side.[8] These exception activities develop skills and strengths necessary for defence, whether in public or private, in case of need. An issue arises as to what extent the harm inflicted upon the other is within the sport’s rules and hence consensual or whether the intention is harm. According to R v Billinghurst (1978), punching an opponent explicit of the game’s rule rules was found to be malicious inflicting grievous body harm.[9] Hence, it is advisable to suggest accepting consent only within the standard of a particular game and those individuals participating. Some cases of inflicting body harm are necessary, such as surgery. However, behaviours displayed by the defendant against the norms of society should not be encouraged.[10] Here, it must be assumed that human autonomy prevails over legal moralism. The general rule exception that bodily harm cannot be consented to is based on whether the bodily harm is intentional and whether the public policy reasons or society allows the general populace to consent to the activity.   

A significant challenge for the defence of consent for non-fatal offences law is the unchanged language, which is outdated. For instance, under the Offense Against the Person Act 1861, section 18 and 20 includes terms such as ‘wounding’ or ‘causing grievous bodily harm.’[11] Coupling the two words is incorrect and challenging to comprehend in modern society due to differences in severity. The word wound may have been life-threatening in 1861, which is dissimilar in modern times. Bodily harm in modern society includes psychiatric, which might not be the initial meaning intention. In Burstow [15], Lord Steyn argues that Victorian legislators did not consider psychiatric illnesses.[12] Hence, the law does not reflect contemporary issues rendering it irrelevant.[13] The gap between low-level offences like assault and occasional body harm continues to widen, causing confusion among prosecutors who must decide based on injury. For instance, in Lynsey [1995]  All ER 654[20] a between assault and battery, the judge indicates the appeal is of no practical significance but an illustration of wastage of resources based on unhelpful law.[14]

In the interest of justice and preservation of public confidence in the justice system, the application of laws and regulation and punishment imposition must be consistent and principle.[15] Rules should not be determined as a matter of practicality or unexamined policy. There is a need to define policies with reasonable certainty to ensure that the law is accessible, predictable, and encourages efficient crime investigation.[16] A potential solution to the prescribed issue is to reform the act. For instance, a 1998 Draft Bill portrays the offences in a more logical structure and modern English, such as ‘serious injury, intentional, recklessness causing injury.’[17]

In sum, the law does not recognize consent as a defence of severe infliction of bodily harm. Where the accused is reckless, consent should be unavailable. In addition, other than undisciplined sports and play, consent does not offer a defence to the deliberate pain infliction regardless of the intention. The expectation of the rule is based on whether the action is intentional and whether the public policy reasons or society allows the general populace to consent to the activity. However, the legislation of the non-fatal Offense against the person is being poorly interpreted. The 1961 OAPA Act contains ancient language, and a distorted hierarchy of offences makes it challenging to administer. Thus without reforms, judges’ interpretations are too creative and open to guide the society in line with the law.

Bibliography

Chisholm, Neil. “English Law of the Offences Against the Person Act 1861: Outline and Case Summaries.” Available at SSRN 3771131 (2021).

Eugenicos, Alexandra-Maria. “Should We Reform the Offences Against the Person Act 1861?.” The Journal of Criminal Law 81.1 (2017)

Hassan S, ‘Consent and Duress as A Defense For Non-Fatal Offences against A Person’ (2019)

Richards, Dylan, and T. Henning. “Consensual Assault.” (2018).

R v Jones [1987] Crim LR 123

R v Billinghurst (1978)

R v Brown [1994] AC 212

DPP v Morgan [1976

R v Dica [2004] EWCA Crim 1103

Offences Against the Persons Act (1861) s. 47

R v Konzani [2005] EWCA Crim 706

Lynsey [1995]  All ER 654[20]

R v Donovan3and Attorney General’s Reference (No. 6]

DPP v Morgan [1976]

Offences Against the Persons Act (1861) s. 47

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[1] Chisholm, Neil. “English Law of the Offences Against the Person Act 1861: Outline and Case Summaries.” Available at SSRN 3771131 (2021).

[2] R v Brown [1994] AC 212

[3] [R v Donovan3and Attorney General’s Reference (No. 6]

[4] DPP v Morgan [1976]

[5] Swift- J in Donovan [1934] All ER 207

[6] Offenses Against the Persons Act (1861) s. 47

[7] R v Dica [2004] EWCA Crim 1103

[8] Richards, Dylan, and T. Henning. “Consensual Assault.” (2018).

[9] R v Billinghurst (1978]

[10] Hassan S, ‘Consent and Duress as A Defense For Non-Fatal Offences against A Person’ (2019)

[11] Chisholm, Neil. “English Law of the Offences Against the Person Act 1861: Outline and Case Summaries.” Available at SSRN 3771131 (2021).

[12] Hassan S, ‘Consent and Duress as A Defense For Non-Fatal Offences against A Person’ (2019)

[13] Eugenicos, Alexandra-Maria. “Should We Reform the Offences Against the Person Act 1861?.” The Journal of Criminal Law 81.1 (2017)

[14] Lynsey [1995]  All ER 654[20]

[15] Richards, Dylan, and T. Henning. “Consensual Assault.” (2018).

[16] Eugenicos, Alexandra-Maria. “Should We Reform the Offences Against the Person Act 1861?.” The Journal of Criminal Law 81.1 (2017)

[17] Ibid