Criminal law : consent
- Where consent is an issue, the burden of disproving it lies on the prosecution- R v Donovan
- The law recognizes several exceptions to the rule based on public policy that one cannot consent to bodily harm
- Some further exceptions prominent issue which arises of consent is that of sexual activities
- A prominent issue which arises of consent is that of sexual activities- R v Clarence
- On the subject of sexual activities, abnormal activities are certainly not straight forward area
- Should the law efficiently intervene regarding abnormal sexual activities?
- R v Brown took on international dimensions when the defendants appealed to the European Court of Human Rights
- R v Wilson
In criminal law, there exists a defense of consent. Within this defense, there is a general rule that a person cannot consent to his being caused actual bodily harm. No one can ever lawfully consent to his own death-R v Young . This opens the debate on issues related to euthanasia, illustrated in DPP v Pretty and Humbert -a French case, where, in both cases it was held that a person cannot consent to his own death because of the law.
Where consent is the issue, the burden of disproving it lies on the prosecution- R v Donovan . The term of ?consent' is sometimes awkward to determine on the grounds that the alleged victim expressly or impliedly consents to the physical contact, or force complained of, with respect to the validity of consent in the circumstances. Consequently, the concepts of consent and public policy give rise to many issues which we will discuss in our assignment.
It is clear that when a person can consent to bodily harm, public policy forms the primary modern and controversial issue within the law, and it is therefore awkward to verify whether the general rule quoted above or exceptions to this rule are based on it. Public policy requires the Court to lay down limits on the extent to which citizens are allowed to consent, or are to be bound by apparent consent given. In Attorney General's Reference (No 6 of 1980) , Lord Lane CJ stated ?? it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason.?
[...] This however, as stated by Cheryl Hanna (Professor of Law at Vermont Law School) in is not a Sport: Consent and Violence in Criminal Law' ?fails to account for the history and practical application of the doctrine of consent?. This case leads to the question regarding one of the exceptions to the general rule, people can consent to play hockey, why can't they consent to private sexual activity which is arguably no more dangerous?? The liberal view, again stated by Cheryl Hanna is that allow the moral police to round up people for what they do in private is to encroach on legitimate individual liberty? i.e. [...]
[...] Having looked at R v Brown, R v Wilson, R v Emmett, we can easily see that the law on consent with regards to sexual activities is very confusing, and amidst this confusion, we are still posed with a huge legal and moral debate which looks like it will continue for many years. Although a strict solution addressing the problem does not seem to be a judicial prerogative, in R v Wilson, Russel L.J stated that this field, in our judgment, the law should develop upon a case by case basis rather than upon general propositions, to which, in the changing times in which we live, exceptions may arise from time to time, not expressly covered by authority.? However, this will not help us in the long term and will only lead to confusion and complexity in law. [...]