Consent is one of the recognized grounds for a defense in the commission of a crime. This type of defense is usually invoked in the cases involving criminal sexual conduct, physical assault and battery. The court’s approach when recognizing consent as a defense will vary based on the causal conduct of harm afflicted to the victim by an accused. The circumstances will dictate whether the court will appreciate consent as a valid defense against liability. As a general rule, the victim’s consent will not automatically excuse an accused from liability for the harm caused. It is actually the nature of a crime that dictates whether consent may be used as a lawful defense. There are certain crimes, for instance, where the lack of consent is an essential element. In a forcible rape or common-law rape, the essential elements that the prosecutor needs to prove before the court includes the fact that sexual intercourse happened through threat or intimidation and with the lack of consent of the victim. The court will appreciate the defense of consent if the accused can prove that the sexual intercourse occurred with the consent of the victim since the elements required for a forcible rape or common-law rape are not present to warrant a conviction for the offense charged. The prosecution therefore has the burden to show the lack of consent in certain crimes where the victim’s consent is an essential element to allow the court to determine whether consent is a valid defense or not.
The court usually takes recognition on certain instances where consent is considered to be a lawful defense, such as in the case of physical contact sports. The court often emphasizes that individuals who are playing contact sports already understand that their participation will naturally involve physical force and they are deemed to have consented to subject themselves to the possible physical injury arising from such activity. However, although the court may appreciate this rationalization, consent cannot be a valid ground whenever unreasonable force is applied, causing harm to a player in a contact sport. In the case of R v Billinghurst, the court held that consent is a lawful defense in lawful contact sports, but the assault inflicted should be one that is reasonably expected to happen during a game. The accused punched his opponent rugby player causing him to fracture his jaw. The court draws the line where the extent of force that can cause physical harm is reasonable or not in the course of the game. Thus, even if the player have consented to become afflicted with physical injury during a game, it does not give the other players a license to apply a brutal force to cause harm to a player in a contact sport.
In contrast, the court upheld the defense of consent in the case of R v Cey where the accused afflicted an injury to the head of another ice hockey player who continued to play the game despite his injury. The trial court appreciated the act of the victim of continuing to play the game as an implied consent to the physical injury he sustained and acquitted the accused of the charge of assault. The court also provided a persuasive hint on how to recognize a player’s consent to assault or physical injury in contact sports with reference to the certain factors that include the game standards, the nature and degree of the act committed in causing harm to another and the state of mind of the offender. The court also describes certain acts as barbaric and vicious, such as kicking an innocent player on the head with such a great force while playing a game of rugby football in the case of R v Lloyd, holding that such act has nothing to do with the game. Within the perspectives of consented contact sports, the consent given by players is valid and will not hold anyone causing harm or injury to another in the course of the game so long as the court is convinced that the force and the manner of the harm caused is one that is reasonably expected from the game.
Consent is often raised as a defense in bodily harm, but the court emphasizes that the act is unlawful. In the case of R v Brown, the court ruled that a consensual sadomasochistic homosexual activity violates the Person Act 1861 for causing bodily harm and unlawful wounding. The accused involved have willingly participated in the commission of certain acts constituting violence and torture to obtain sexual pleasure and experiencing pain. While the accused did not suffer permanent injury in the course of the activity and consented to the acts performed, the court was stern in upholding that such activity is contrary to law and against public policy. Even the consent of the people involved will not offer a valid defense against the liability involved in the charges. It was explained by the court that while consent, in certain cases, may offer a valid defense in the infliction of bodily harm, the element of consent is not required to make a person liable when the act involved is not a lawful activity and against public policy, such as in the case of the sadomasochistic activities. The court describes the activity as not only concerned about sex, but also concerns an act of violence. Where public policy is concerned, it is the general welfare of the society that is given more importance with the intention of providing protection against the risk of the cult of violence that can result in the corruption of the younger generations. The issue of public policy was also invoked by the court when it held an accused as guilty of manslaughter after the victim died due to strangulation while he performs an exorcism in the case of R v Lee. The court’s ratio provides that the act of strangulation is an unlawful act of assault and even if the victim consented to it, it is not a valid defense by reason of public policy.
Generally, the law involving assault does not recognize consent as a valid defense when the act involved will likely result to a grievous injury or death to another. Invoking the defense of consent is not considered meritorious by the court even in a consensual sexual activity, wherein the victim was infected with an HIV by the accused in the case of R v Dica. The act of the accused for undertaking unprotected sex and inflicting the victim to the virus was considered by the court as against public policy and violates the provision on biological GBH under the Person Act 1861 notwithstanding the consent given by the victim to have a sexual intercourse with the accused. However, it is interesting to note that in the case of R v Lamb, although the harm has resulted in death, the court acquitted the accused who shot his friend while playing a revolver. The court upheld the decision of acquittal on the ground of consent to play the revolver by the victim as evidenced by his sharing in the joke and without showing any signs of being threatened where both of them believe that the gun is safe to play with. There are also other meritorious grounds that consent may be used as a good defense in the court of law. In the case of R v Jones, the court acquitted several accused who tossed two boys into the air while playing, where one boy suffered a ruptured spleen while the other boy suffered from a broken arm. The court upheld consent as a valid defense whenever there is a showing that there really was no intent to cause injury to the victim. The court also gives consideration on the honest belief of the accused that the boys have given their consent by participating in their rough games.
The appreciation of consent by the court whether as a valid defense or not will mainly depend upon the circumstances of the case. In the case of R v Olugboja consent was described by the court as one that covers a wide range of state of mind, such as in the case of sexual intercourse, where it may be range from showing an actual desire or reluctant acquiescence. It is therefore incumbent upon the accused and the victim’s counsel to prove the existence of consent in a manner that will give the judge an appropriate understanding on how it will be appreciated based on the attending facts of the case. It is also worth noting that public policy will always reject the defense of consent under any circumstances upon showing that the harm caused is not only injurious to the victim, but may also be injurious to the society or the public.
It can be inferred, therefore, based on jurisprudence that the court’s approach in recognizing the effects of consent on liability for a resulting harm will always depend upon the facts of the case. Every case is unique and the attending circumstances present will guide in court in making its decision on whether or not consent may be appreciated as a valid defense of the offense charge. The court is consistent with its ruling that the defense of consent will not lie on acts and omissions that are considered to be a violation of a statute and when it is against public policy. This is common under the law of strict liability, including consensual crimes. The court also upholds the ruling that any consent given under force or duress shall not be a valid defense. Case laws have been consistent in showing the manner of appreciation made by the court regarding consent as a defense in criminal charges as based according to the circumstances involved in the case since consent may be shown in varied ways, which can either be express or implied. It is important, therefore, to prove consent as an important element of a crime in order to warrant a conviction or to emphasize the issue involving public policy, intent and statutory violations that will allow the court to negate the defense of consent by an accused. The issue on whether or not a victim has consented is thus one of a fact and is proven based on the specifics provided in the case.
Aspen Publishers and Wolters Kluwer Law and Business ‘Criminal Law’ (Aspen Publisher 2008)
‘Elements of Common-Law or Forcible Rape’ (US Legal) < http://rape.uslegal.com/common-law-or-forcible-rape/elements/> accessed 2 July 2015
Hartley, H. Sport, Physical Recreation and the Law (Routledge 2009)
R v Billinghurst  Crim LR 553
R v Brown  1 AC 212
R v Cey  Can LII 283 (SK CA)
R v Dica  QB 1257 (CA)
R v Jones  CRIM LR 123 (CA)
R v Lamb  2 QB 981
R v Lee  3 NZLR 42
R v Lloyd  CLR 513
R v Olugboja QB 320 (CA)
Person Act 1861, s. 20
Person Act 1861, s. 47
Siegel. L. and Worrall, J. Introduction to Criminal Justice (15 edn, Cengage Learning 2004)