The defence of consent occurs most often in criminal cases related to sexual offences and theft offences, including the following crimes that have a consent element in their definition: rape, marital rape, forcible sexual penetration with a foreign body, sodomy, oral copulation, theft and robbery. In order to establish consent in these circumstances, three conditions must be met. First, a person cannot consent to circumstances that involve the possibility of serious bodily harm. Second, harm must be a reasonably foreseeable aspect of the conduct and a risk that would be reasonably accepted. Third, the person must benefit from the conduct to such an extent that consent was justified. In R v. Richardson, [1998] 2 Cr App R 200, the patient believed she had received dental treatment from a dentist who had actually been struck off the register, which would otherwise have led to an attack resulting in actual bodily harm. The Court held that the identity of the defendant was not a precluding the patient`s consent in this case. In R. v. Navid Tabassum (May 2000). [9] All three complainants agreed that the complainant showed them how to examine their own breasts.
The complainant himself felt the breasts of two of the women and used a stethoscope under the bra of the third woman. Each of the three women stated that she only agreed because they believed the complainant had either a medical qualification or relevant training. He had neither. There was no evidence of a sexual motive. He was convicted on the ground that the applicants had consented only to acts of a medical nature and not to indecent behaviour, i.e. that there was consent to the nature of the offence but not to its status. Consent may be given explicitly or implicitly. However, consent is only valid to the extent that the consent provider intended it. If consent is implied, consent is valid only to the extent that a reasonable person would assume it in the circumstances. For example: In 2000, the government reiterated this view during a consultation on the Manslaughter Act: «The government remains fully committed to this approach.» It has since been published in R. v Dica, which discusses HIV transmission and notes that it was not necessary to prove that transmission involved an attack on the «infliction» of the disease.
The judgment rejected the Clarence rule as tainted by the presumption of a woman`s conjugal consent to sexual intercourse at the time, although Clarence was still applied after marital rape was criminalized. The most modern bodies dealing with the transmission of mental states and other sexual matters reject the idea that consent can be a defense against more than minor injury. One. Consent cannot be inferred from a victim`s words or behaviour where violence, threats of violence, coercion or exploitation of a coercive environment have undermined the victim`s ability to give voluntary and genuine consent; b. Consent cannot be inferred from a victim`s words or behaviour if the victim is incapable of giving genuine consent. The problem has always been deciding at what level the victim`s consent becomes ineffective. Historically, defence in Britain was rejected if the wounds inflicted amounted to mutilation (according to Hawkins` Pleas of the Crown (8th edition) 1824). In R. v. Donovan (1934) AER 207, in which Justice Swift established the general rule: In Australia, if a sexual partner was asleep, unconscious, or if a jury decides that a complainant could not agree, sexual contact is considered rape. In New South Wales, Victoria, South Australia, Tasmania and the Northern Territory, consent is not possible if the complainant was asleep or unconscious.
In Victoria, South Australia, Tasmania and the Northern Territory, there is no consent if the complainant is so affected by alcohol or other drugs that he or she is «incapable of freely consenting to sexual activity». In the Australian Capital Territory, the effect of alcohol or other drugs is less nuanced; There is no consent if it is caused by «the effect of intoxicating alcohol, medication or anesthesia.» In New South Wales, consent cannot be given if a complainant has been «severely intoxicated by alcohol or drugs». This wording echoes the view expressed in the 2010 report «Family Violence – A National Legal Response» by the Criminal Justice Sexual Offences Taskforce and the Australian Law Reform Commission, that the degree of intoxication and whether a person «could disagree» is a matter for the jury. [8] In all of these circumstances, even if the defendant argues that consent was obtained, the courts are likely to conclude that the consent is legally invalid and that the defence will not apply.
