Discuss the nature of the defence of consent

The defence of consent is a general defence to a criminal charge. The defence developed under the common law and has long been recognised under our criminal law.

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This essay engages in a full discussion about the nature of the defence of consent.

The work starts with a reminder that defences may operate as a general defence or as a special defence to a criminal charge.  We are also reminded that the defence of consent can be contrasted with some other defences such as insanity, automatism, mistake and self defence.  Consent is also subject to limitations imposed by the courts.

The essay explains the effect of consent on what would otherwise have amounted to criminal behaviour.

The cases of Gomez (1991), Hinks (2000), Donovan (1934), Att-General's Reference (No 6 of 1980) (1981), Barnes (2005), Brown (1993) and Wilson (1996) and others are dealt with in context.

Consent is also covered in relation to Sections 14 (2) and 15 (2) of the Sexual Offences Act 1956.

The essay also makes reference to guidelines issued by the courts and in particular mentions 'properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference and dangerous exhibitions etc:'.

The question of the development and strengthening of the defence in recent years by such cases as Dica (2004) and Konzani (2005) is also discussed.

Finally, the essay raises the sometimes difficult issue of 'what matters is what the defendant genuinely believes'.

 

 

 

(Word count 1613)

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