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Consent to bodily harm and criminal law

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  1. Introduction
  2. The earlier cases addressing consent
  3. The court in Donovan
  4. The exceptions
  5. R v Boyea: The case
  6. R v Brown
  7. The sadomasochistic acts
  8. The imposition of criminal sanctions
  9. The overriding policy considerations
  10. R v Dica
  11. Conclusion
  12. Bibliography

In R v Barnes [2005] 1 WLR Lord Woolf CJ considered the decision of the House of Lords in R v Brown [1994] AC 212 and the Court of Appeal in R v Dica [2004] QB 1257 and decided that it is clear that the rule and the exceptions to the rule that a person cannot consent to his being caused actual bodily harm are based on public policy (at p.913). Discuss, with reference to appropriate authority, to what extent you believe this to be true and whether this means it is not possible to identify under what circumstances a person may consent to bodily harm. The general rule in assault cases is that subject to limited exceptions, consent to bodily harm will be irrelevant and will not negate criminal liability for an offence, if actual bodily harm was intended .

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

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

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