Pieces of legislation and case law

There are different types of consent that include express and implied. Discuss the issues of consent looking at relevant pieces of legislation and case law; in particular refer to the case of R v. Brown [1993] 2 All ER 75 and other decided cases. Following the decision in the case of the R v. Brown (1993) the issue of consent was raised in English law, and has been of debate since. In most English dictionaries the synonym for consent is agreement. Consent is essential in a number of circumstances; for example, contracts and marriages are invalid unless both parties give their consent.

There are 2 forms of recognised consent; they are expressed consent and implied consent. Express consent takes place when consent is communicated directly through speech or conduct and there is little or no doubt as to the consent given. For example by directly saying 'yes' or even through nodding, and other direct gestures expressed consent can be communicated to another. Implied consent however is to indicate consent through body language or conduct without actually directly communicating it, it need not necessarily be the in the positive form either.

For example, not disagreeing or communicating in the negative through body language, gestures or facial expressions may imply consent. The latter form of consent is open to ambiguity and to subjective interpretation. As already stated above there are many forms in which consent can be communicated. It may be spoken or unspoken, may be direct or indirect, consent can be in the form of words, gestures, body language, hand movements, as well as facial expressions. As stated above the case of R v. Brown (1993) raised the issue of consent.

One of the most important issues mentioned in terms of public importance was the matter of whether consent should be allowed as a defence to certain offences. One such relevant offence was that of assault. The definition of assault adopted by the law commission is as follows: ' At common law assault is an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence and a battery is an act by which a person intentionally or recklessly inflicts personal violence upon another.

However the term assault now, in both ordinary legal usage and in statutes, is regularly used to cover both assault and battery. ' There are currently 3 types of assault, each differing in gravity. Firstly there is common assault, secondly there is assault that occasions actual bodily harm and thirdly and lastly there is assault that inflicts grievous (serious) bodily harm. Common law assault is enacted within s39 Criminal Justice Act 1988, which states: 'Common assault and battery shall be a summary offence… '

The offence of assault occasioning actual bodily harm is by authority of Offences Against the Persons Act 1861, and in R v. Donavan, Swift J said: ' Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with health or comfort of the posecutrix. Such hurt or injury need not be permanent but must be more than merely transient or trifling' ' Transient or trifling' meaning the harm caused being more than momentarily and trivial. The offence of grievous bodily harm is by authority of s20 of the Offences Against the Persons Act 1861.

The act states: 'Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of [an offence] … ' To constitute a wound the whole skin must be broken and not just the outer layer of the epidermis, the authority for this JJC v. Eisenhower (1938). Grievous bodily harm (GBH) simply meaning bodily harm that is of a serious nature, more so than in actual bodily harm (ABH). The case R v.

Brown and others (1993) was concerned with a group of appellants who belonged to a faction of sadomasochistic homosexuals. They willingly participated in acts of violence against each other, including genital torture for the purpose of sexual pleasure produced in the giving and receiving of pain. In each case the masochist (person receiving the pain) or 'victim' as they were referred to by the courts had expressly consented to the acts of violence that were committed against them, no permanent injury was suffered by any of the 'victims'.

The sadomasochistic acts took place in private and the acts were videotaped and distributed amongst members of the faction only. Police discovered the sadomasochistic activities on chance during the course of an investigation of another matter. The accused were tried on and convicted of charges of assault occasioning bodily harm contrary to s47 of the Offences Against the Person Act1861, and unlawful wounding contrary to s20 of the same act. The defendants appealed to the Court of Appeal but the convictions were upheld.

The defendants later appealed to the house of lords, contending that a person could not be guilty of offences under ss 47 and 20 of the Offences Against the Person Act1861 in respect that the acts were carried out in private and with the victim's consent. This raised the question in law as to whether consent should be available as a defence to ss 47 and 20 of the Offences Against the Person Act1861 as it is with common law assault. By a majority of three to two the House of Lords dismissed the appeal it held: Since ABH was intended and caused, consent to the harm was irrelevant.

It also took the view that it was not in the public interest to recognise consent as a valid defence to the intentional causing of ABH in sadomasochistic practices for several good reasons. Firstly it was regarded as being luck which had prevented any serious injury, secondly there was said to be a real, even if small risk of spreading disease as it was found members of the group suffered from HIV or AIDS, and the acts of violence including 'blood letting'. Another reason given for the decision was the fact there was 'danger that young persons would be drawn into the unnatural practices of sadomasochism. In