Consensual Assault - Just what is the law?
| Author | Brian Foley |
| Position | Senior Sophister student, Trinity College, Dublin |
| Pages | 266-272 |
CONSENSUAL ASSAULT
-
JUST
WHAT
IS
THE
LAW?
Perhaps
one
of
the
most
controversial
aspects
of
legal
discourse
is
that
of
the
consent
in
the
criminal
law,
in
particular,
with
regard
to
assaults
to the
person.'
Whereas
the
purported
to
reform
the
law
on
assault,
glaring
problems
in
respect
of
consent remain.
The
legislation
is
capable
of
two
interpretations,
diametrically
opposed, both
in
their
philosophy
and
practical
application.
Essentially,
it
is
not clear
whether
the
low
common
law
standard
of
consent remains
or
if
a
higher threshold
has
replaced
it.
It
is
thus not
clear
what
acts
the
criminal
law
allows.
Unfortunately,
the
courts have
yet
to
decide
the issue. This
essay will
argue
that
despite
the
ambiguity,
should
be
interpreted
as
laying
the
common
law
to
rest,
and
embracing
the
wider
standard.
The
Common
Law
It
may
be
helpful
to first
set
out the
common
law
threshold
of
consent.
Prior
to
1997
the
law
on
assault
was
classified
according
to
a
tripartite
division
of
common
assault,
actual
bodily
harm, and
grievous
bodily
harm.
It
was
established
that
although
consent
was
a
defence
to
certain
assaults,
3
a
person
could
not
consent
to
an
assault
occasioning
actual
bodily
harm.
4
Widely
accepted
as
a low
threshold,
5
actual
bodily
harm
was
defined
as
including
(as
a
minimum)
those
acts
above the
trivial
-
This
is
probably
because
consent
provisions
occupy a
crucial
point
at
the
congruence,
or
indeed
separation
of,
law
and
morals.
The
ability
to
consent
to harm
is
a
direct
statement
of
the
degree
of
personal
liberty afforded
in
a
legal
system.
Of
course, the
degree
of
liberty
that
should
be
afforded
to
the person
is
as
much
a
political
and
moral
as
well
as
legal
argument.
Some
would
contend
that
a
public
morality
would allow
the
restriction
of
the
liberty
of
individuals,
as
is
implicit
in the
result
of
R
v.
Brown
[19931
2
All
ER
75.
See
generally,
Hodson,
"The
Principle
of
Paternalism"
(1977)
14
American
Philosophy Quarterly
6.
No
reference
to this
topic
would
be
complete
without
mentioning
Devlin,
The
Enforcement
of
Morals
(Oxford
University
Press,
1956)
and
Hart,
Law,
Liberty
and
Morality
(Stanford
University
Press,
1963).
For
a
summary
of
the
paternalist
argument,
see
also
Feinberg,
Harm
to
Setf(Oxford University
Press,
1986).
2
Offences
Against
the
Person
Act
1861.
Sections
42
and 46
therein continued
the
application
of
sections
27
and 29
of
1828
legislation
(9
Geo.
4,
c.31)
that
made
the
common
law
offence
of
common
assault
triable
summarily.
This
created no
new
offence:
R
v.
Harrow
JJ,
ex
parte
Osaseri
185,
at
188.
The
offence
of
actual
bodily
harm
was
created
by
section
47
and
the
offence
of
grievous
bodily
harm by
sections
18
and 20.
3
Coward
v.
Baddeley
(1859)
4 H
&
N
478;
R
v.
Coney
534;
R
v.
Donovan
498;
R
v.
May
572;
Attorney
General's
Reference
No.6
of
1980
R
v.
Brown
75.
4
See
the
leading decision
of
R.
v.
Brown
75.
'
Williams,
Textbook
on
Criminal
Law
(2nded.,
Stevens,
1983),
at
191;
Clarkson
&
Keating,
Criminal
Law:
Texts
and
Materials
(Sweet
&
Maxwell,
1984),
at
455.
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