‘The infliction of pain is an evil thing’: a critical analysis on whether consent can, and should be used as a defence to non-fatal offences

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Frances Hand

The Offences Against the Person Act 1861 and its application in relation to consent is controversial.[1] The courts must balance the need for protection of individuals against their right to autonomy. However, within common law it appears that undertones of conservative attitudes towards sexuality, body modification and masculinity have impacted judicial decisions concerning the extent to which consent can be used as a defence to non-fatal offences. This article will assess to what extent these attitudes are changing in accordance with the liberalisation of society and whether such liberation is being reflected in judicial decision making.

One controversial topic regarding consent is whether judicial intervention should govern private acts within the home. Although the European Convention on Human Rights encourages protection of an individual’s private life, the judiciary has to also protect its citizens from harm.[2] However, case law within this area appears hard to reconcile. Whilst Brown[3] provided the ratio that a victim can only consent to assault and battery,in Wilson[4] the defendant committed ABH, but the consent of the victim was given as sufficient defence.[5] It is difficult to ignore the undertones of homophobia within the Brown judgement [6] whereas in Wilson – a heterosexual relationship –  the defendant’s actions were allowed, potentially because the tattooing was viewed as akin to branding property rather than violently motivated. However, despite these conservative views, the ratio outlined in Brown[7] is sufficient to protect those most vulnerable in our society. Murphy argues that we should treat Brown as a sexual offence and not as assault. [8] However, this would be unwise. In Brown, some of the actions were highly violent and placed the participants in intense danger.[9] As Lord Jauncey surmised, it was ‘good luck rather than good judgment’ that ensured no-one was severely harmed.[10] Additionally, the decision in Wilson is particularly interesting when it is noted that the victim chose not to give a statement in court. Therefore, it would be difficult for us to ascertain with any level of certainty whether she had instigated this harm being caused to her as originally stated. This abject silence on the side of the victim may allude to greater coercive domestic control over the victim than first considered.  The law appears clearer after the decision in Emmett where consent could not be used as a defence in heterosexual S/M relations.[11] Therefore, by dropping the propensity to favour heterosexual relations, the ratio in Brown[12] is now sufficient to protect vulnerable citizens and does not appear prejudicial to homosexual relationships. 

It is undeniable that the infliction of pain is not always ‘evil’.[13] One such occasion cited in AG Reference (No. 6)  is consent to medical intervention.[14] However this is a grey area, which is seen when comparing Wilson,[15] BM[16] and the legality of non-essential cosmetic surgery.[17]  Elliott argues that judicial decisions are sometimes based on the ‘yuk’ factor and a judge’s own standards on what should be permissible.[18] This is demonstrated in Wilson[19] where a homemade tattoo was clearly more palatable for judges than BM’s[20]separation of the tongue.[21] It is interesting that although both were unqualified to attempt these tasks and both committed harm greater than assault, only BM[22] was held to be liable. Whilst it could be argued an underlying principle of law is not to inflict harm without ‘good reason,’[23] this is not always clear cut, especially with cosmetic surgery. It is hard to understand how giving someone a serpent tongue rather than a breast augmentation is different in terms of their benefit to the public interest – according to Wilson a key factor in body modification decisions.[24] Thus, Clement and Elliott concur that instead of focusing on public policy, the law surrounding consent to body modifications (including tattoos) should be restricted to those that are qualified, thus reducing the ‘risk inherent in amateur bedroom branding.’[25]

One area of the AG Reference that is outdated is that consent is a defence to rough horseplay.[26] Indeed, case law undoubtedly goes against the general principles of criminal law, instead favouring ‘masculine’ pranks. For example, Aitken held that even though the victim was drunk and unconscious, they had consented.[27]This strongly contradicts legal precedent [28] and casts doubt over when victims can be protected from violently and sexually motivated assault. Additionally, the ruling in Jones allows the defence, even when the victim wasn’t consenting – as long as the defendant can claim genuine belief.[29] Controversially, the Jones judgement even argued that such violent behaviour was beneficial to boy’s societal growth.[30]  Therefore, Elvin’s argument is persuasive, that a reform of this area of law to condemn the connection between violence and masculinity would further protect individuals who do not or cannot consent.[31]

In conclusion, the law surrounding the extent to which consent can be used as a defence is blurred. In some areas such as essential medical intervention the law appears to be sensible. However, what may be more interesting is how the law develops in relation to the more liberal attitudes of the 21st century with regards to sexuality and the expression of this within the home. It is clear, however, that some areas of the law surrounding consent are outdated and these traditional attitudes towards masculinity could be harming those most vulnerable within our society. 

[1] Offences Against the Person Act 1861.

[2] European Convention on Human Rights (Section 1, Article 8).

[3] R v Brown [1994] 1 AC 212.

[4] Offences Against the Person Act 1861 s 47.

[5] R v Wilson [1997] QB 47.

[6] Brown (n 3) 235.

[7] Ibid.

[8] Peter Murphy, ‘Flogging live complainants and dead horses: we may no longer need to be in bondage to Brown’ [2011] 10 CLR 758.

[9] Brown (n 3) 246. 

[10] Brown (n 3) 247 (Lord Jauncey).

[11] R v Emmett [1999] (CA, 18 June 1999) The Times, 15 October 1999.

[12] Brown (n 3).

[13] Brown (n 3) 237.

[14] Re Attorney General’s Reference (No. 6 of 1980) [1981] 1 QB 715.

[15] Wilson (n 7).

[16] R v BM [2018] EWCA Crim 560.

[17] R v Wilson [1997] QB 47; R v BM [2018] EWCA Crim 560.

[18] Tracey Elliott, ‘Body Dysmorphic Disorder, Radical Surgery and the limits of consent’ [2009] 17 MLR 149.

[19] Wilson (n 7).

[20] R v BM [2018] EWCA Crim 560.

[21] R v BM [2018] EWCA Crim 560.

[22] R v BM [2018] EWCA Crim 560.

[23] Re Attorney General’s Reference (No. 6 of 1980) [1981] 1 QB 715.

[24] R v Wilson [1997] QB 47 48.

[25] Rachel Clement, ‘Consent to body modification in criminal law’ [2018] 77(3) CLJ 451 454; Tracey Elliott, ‘Body Dysmorphic Disorder, Radical Surgery and the limits of consent’ [2009] 17 MLR 149.

[26] Re Attorney General’s Reference (No. 6 of 1980) [1981] 1 QB 715.

[27] R v Aitken [1992] 1 WLR 1006.

[28] R v Lartner [1995] Crim LR 75; R v Malone [1998] 2 Cr App R 447.

[29] R v Jones (1986) 83 Cr App R 375.

[30] R v Jones (1986) 83 Cr App R 375 378 (Swift J).

[31] Jesse Elvin, ‘The Continuing Use of Problematic Sexual Stereotypes in Judicial Decision-Making’ [2010] 18 Feminist Legal Studies 3.

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