Free Seminar Essay: The Question Of Consent In The Present Law Of Non-Fatal Offences Against The Person Essay Example

Seminar Essay Question

“In the present law of non-fatal offences against the person the question of consent lacks coherence and any kind of principled basis.”

Thesis Statement

Consent, as a defence against the victim, does not stand as a valid principled basis under the present law of non-fatal offences.

Introductory Paragraph

I argue in this essay that a defendant may not validly claim that the victim has consented to violence coming from him under the present law of non-fatal offences. In supporting my argument, I will emphasize, through my statement of the problem, the rationale of actus reus and mens rea, both being criminal transgression elements, as well as their relevance to my stand. Afterwards, I will explore more on what consent means and how its inapplicability as a defence against the victim is explained. Elaborations from case law also provides sufficient backing for my argument, alongside occasional setbacks.

Statement of the Problem

On the matter of consent as a defence against the victim in non-fatal offences, its validity finds no ground, based on the fundamental elements of criminal transgression – actus reus and mens rea. Actus reus corresponds to guilty act (R v Donovan, 1934; Section 47, OAPA), while mens rea refers to guilty mind (R v Savage and Parmenter, 1991; Sections 18 and 20, OAPA). Understandably, questions on the criminality of the act of the defendant would arise in the event he or the evidence presented incites the possibility that consent has been present all along on the part of the victim. Such controversy has been the subject matter of the case of Attorney-General’s Reference (1980), which identified the areas within which consent rightfully applies as a defence. Nonetheless, the logic behind standing against the validity of consent as a defence in non-fatal offences rests on the rationale of actus reus. In non-fatal offences, actus reus corresponds that anxiety on the part of the victim must arise from violence coming from the actions of the defendant. Understandably, if the victim consents to violence coming from the defendant, then he loses anxiety over it. Signs of harm, in this case, are not exactly necessary on the part of the victim in non-lethal offences. Rather, it is already enough to establish that the victim has suffered from a non-lethal offence if he shows fear towards violence imminent from the defendant. Further elaborations follow through in this essay.

Aspects of the Issue in Question

On the Issue of Consent
Consent on the part of the victim to wilfully expose himself to violence is, according to Attorney-General’s Reference (1980), immaterial to the brutality emanating from violence, which is antithetical to the general welfare. The commission of a non-lethal offence is by no means tolerable even under the most stringent of exceptions, although there are legal provisions to openness in accepting exceptional circumstances should they arouse public interest. The general rule of disregarding consent as an acceptable exception under the present law of non-fatal offences is highly controversial, as it presents a series of situations that test its coherency. In situations where non-fatal offences are inevitable, such as sports and medical surgery, the consent of potential victims are involved normatively, to the extent that they have to accept all kinds of possible injuries that may befall them as part of the necessary risks of their respective undertakings. Yet, one way of understanding the invalidity of consent on the part of the victim is the fact that it creates a sense of protection to people against its opportunistic use as a defence. Moreover, acquitting a defendant who has intentionally caused violence on the ground that his victim asked for it does not sound very fitting under the terms of justice. Even if the victim were to give his consent for violence, tolerating the deviance of the defendant is by no means justifiable under the law – again, because it undermines public interest on maintaining peace and order. Cultivating violence in that regard may also create serious problems in the long run, mainly through inspiring criminality.

In the Context of Assault and Battery

Non-lethal offences typically arise from assault and battery. Assault refers to the creation of apprehension, mainly through threatening body language that enables the defendant to threaten his victim, while battery pertains to the infliction of violence per se. Both assault and battery may be committed intentionally and unintentionally. However, assault and battery may not be applied if contact with other people deemed technically sound to fall under said non-lethal offences does not result to circumstances unfavourable to potential victims. In short, if a potential victim makes contact with a potential defendant capable of technically and inevitably committing assault and battery against him, albeit without any tinge of deviance, then any corresponding charges he would file would not stand. In such a case, mens rea is absent from the defendant (R v Savage and Parmenter, 1991). To commit assault and battery, it is crucial for the potential defendant to feature deviance in committing either or both non-lethal offences, one that is understood to cause actus reus on the potential victim (R v Donovan, 1934). In short, actual bodily harm (ABH) must be present in the commission of assault or battery to qualify actus reus in non-lethal offences, and to discount the validity of consent on the part of the victim in the process (R v Donovan, 1934; Section 47, OAPA). The infliction of grievous bodily harm (GBH) in assault or battery, which involves mens rea on the part of the defendant, must also deem consent on the part of the victim as an invalid defence (Sections 18 and 20, OAPA).

Theoretical Tensions

Section 47, OAPA (ABH)
A defendant may be charged for inflicting ABH even without proof of intent, given that it is already enough to cause apprehension to the victim through the presence of unlawful force. In the case of Donovan (1934), which involved the case of a girl physically violated for sexual purposes by the defendant, who in turn claimed that she consented to such violence, the court ruled that “consent is immaterial” in cases when a person is exposed to violence that presents ABH as a “probable consequence.” Consent on the part of the victim, therefore, may not stand as a valid defence if the defendant is found guilty of inflicting ABH (R v Donovan, 1934; Section 47, OAPA).

Section 20, OAPA (GBH)

The infliction of GBH constitutes the same penalty as ABH (imprisonment for five years), albeit being greater in consequence in terms of the inflicted damage. Thus, a defendant may be charged for inflicting GBH, irrespective of the intent, even though consent on the part of the victim is present. Challenging said rationale are the landmark cases of Brown (1993) and Wilson (1997). In Brown (1993), the commission of sexual violence among members of a homosexual sadomasochistic group is, according to the defendants, done consensually and within the scope of their private lives. The court ruled that sexual violence in Brown (1993), while being within the scope of the private lives of defendants, still constitute GBH. In Wilson (1997), the infliction of GBH in the form of a heated knife used by the defendant to write on the buttocks of his wife, the victim, was done with consent as in the case of Brown (1993). Nonetheless, the court ruled in Wilson (1997) that consent is acceptable despite the infliction of GBH, citing the privacy of married life. Given the foregoing cases, it is clear that the purpose of Section 20 of the OAPA is to draw the line between privacy and undermining public interest against inflicting GBH. Although the differences between Brown (1993) and Wilson (1997) are somewhat bigoted in nature, it remains clear that the infliction of GBH must generally deem consent on the part of the victim invalid for defence.

Section 18, OAPA (GBH with Intent)

The presence of both actus reus and mens rea constitutes infliction of GBH with the clear intent to do so coming from the defendant. Therefore, it would be logically incoherent to claim that consent would be applicable as a defence under Section 18 of the OAPA. It is indeed, unconceivable for a victim to consent to the murderous intent of a defendant to commit GBH on him, consistent to Attorney-General’s Reference (1980) wherein it is argued that any intent to commit GBH is inexcusable by a defence of consent on the part of the victim.

When is Consent a Valid Defence?

Consent may be considered as a valid defence in a number of cases. Activities related to sex are, for instance, are assumed to be consensual in that those engaged are aware of both the pleasures and risks that they are bound to face. Medical procedures, which also involves specific risks, involve consent so as long as it is done for curative purposes. Corporal punishment also allows the validity of consent as a defence as long as it is done within the reasonable rigors of discipline.

Conclusion

Generally speaking, the question of consent lacks any principled basis in non-fatal offences, subject to the rigors provided by Sections 47, 20 and 18 of the OAPA. Exceptions would only lie based on the absence of either or both actus reus and mens rea. Public interest against the infliction of some (ABH) or serious (GBH) harm is what characterizes the burden against using consent on the part of the victim as a valid defence in non-fatal offences. To allow consent as a defence, it must therefore try to justify the otherwise harmful implications of exempting charges against ABH and GBH under the OAPA. The victim must, by himself, establish that he consented to the infliction of either ABH or GBH, with prejudice to the foresight and intent of the defendant to cause some or serious harm. Otherwise, it would be hard for the defendant to defend himself against the very purpose of the OAPA to protect society by not condoning the infliction of either ABH or GBH right away.