As part of the OCR Law A-level course, criminal topics are evaluated and the defence of consent is a prime example. This essay is constructed so the AO1 (knowledge objective) is highlighted in yellow and the AO3 (evaluation) is highlighted in purple. This is a perfect structure for an essay and has...
Discuss the extent to which development of the defence of consent has been fair and consistent.
There are many areas where the defence of consent has been unfair and inconsistent. This can be seen
in regard to sexual activities and horseplay with mistaken belief of consent. Within these areas,
decisions have been contradictory which illustrate how inconsistent it is and how they stem from
moral values. However, the defence of consent has been fair in regard to real consent.
Consent must be real and true for the defence of consent to be successful. In the case of Tabassum
where while the women consented to having their breasts examined for medical purposes, they did not
consent to them being touched for perverted reasons. Furthermore, the case of Olugboja, the victim
consented to sexual intercourse, but this was out of fear as the defendant had raped her friend before
her. This is fair and consistent as it protects the victims when they have consented, the courts have
recognised that this may have been out of fear and submission or consent for a different purpose.
Therefore, in this area the development of consent has been fair and consistent because the application
of the defence has been logical.
An inconsistency with the application of the defence of consent is shown when regarding sexual
activity. In the case of R v Brown, where a group of consenting homosexual men were engaged in
sadomasochistic activities, consent was held not to be defence. On the other hand, in the case R v
Wilson, a heterosexual married couple were also engaged in sexual activities consisting of branding
her rear. In this case, consent was held to be a defence as they were engaged in personal adornment,
albeit a cheap way. The unfairness and inconsistencies are evident as these contradictory decisions
can be seen to stem from moral values. Implicitly, the judges were possibly homophobic so
condemned it in the name of public interest, ‘society has a right to protect itself from a cult of
violence’. The cases are similar in facts with consenting adults engaged in sexual activity yet only one
had the opportunity to the defence of consent which illustrates that the defence of consent has not
been consistent and fair.
The defence of consent has been unfair in regard to horseplay and mistaken belief of consent. In the
case of Jones, where a group of boys were engaged in rough, undisciplined horseplay, they were
allowed the defence of consent even though the victims had not verbally consented. Furthermore, the
case of Aitken, where the victim was set on fire by his friends (he was wearing a fireproof suit at the
time) and suffered third degree burns. The defendants were allowed the defence of consent as they
mistakenly but genuinely believed the victim would have consented. The clear unfairness with this is
the victim had not verbally consented, yet the defendant could be acquitted if they believed the victim
to be consenting which entails a lack of protection and justice for the victim. It disregards the fact that
the victim might have actual fact not have consented to the act. Furthermore, it is unfair that the
defence is available and successful even when the victim has suffered extensive injury as seen in
Aitken and hadn’t consented at all. A further inconsistency is shown as with the case of R v Brown
where consent was verbal, yet the defence was not allowed and these cases with mistaken belief of
consent and the defence being allowed. This further perpetuates the idea that the judges were being
homophobic and the whole concept of protecting the public is fragile.
A further unfairness with the development of the defence of consent is in regard to euthanasia. No one
can consent to another person assisting in bringing about their death and no exceptions are made if
they are incapable of killing themselves. If a terminally ill person wishes to die, then they must take
their own life and anyone who helps them would be charged with murder. This is made evident with
the case of R v Pretty and R v Nicklinson. Opinions are very conflicting on this topic but the courts
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