January 22, 2021 9:10 am Published by

The definition of the term “consent” is stated in section 74 of the Sexual Offences Act 2003 (S.O.A). This section states that “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”.

The defence of consent in criminal law may operate to defeat an element of the actus reus of a crime and thus declare the action to be “lawful” as oppose to “unlawful”. For example, the offence of physical assault requires the application of ‘unlawful’ physical force onto a person. But if that person consents to being touched, the application of force becomes ‘lawful’. The defence of consent does not apply to all crimes, for example it cannot be used for murder despite the controversial subject of “mercy killings”.

In some crimes, consent will absolve the defendant of criminal liability especially in rape or assault offences. In other crimes such as Actual Bodily Harm (ABH), Gross Bodily Harm (GBH) and wounding, a restrictive approach is taken with regards to consent. The general rule for consent whilst dealing with assault offences is that it cannot be used if an injury has been inflicted.

The defendant’s belief in consent is relevant to the mens rea of crimes such as theft, criminal damage, and rape. However, the mens rea element is not concerned with whether or not the victim in fact consented, but whether the defendant honestly believed the victim consented.

Consent in Assaults

Where you are charged with common assault the prosecution must prove the absence of consent. Where the charge is actual or grievous bodily harm, the defence must show that even where the victim consented there was good reason for inflicting those injuries.

A person will consent to some level of physical contact, and even injury, when travelling on public transport, engaging in contact sports or undergoing surgery. Rough and undisciplined play will also count as consensual provided there is no intention to inflict injury.

The law has recognised that there are some activities that may cause harm to a person but will also have an element of consent, such as the ones mentioned above. The law has made many exemptions to the rule of what counts as an unlawful act for an assault to take place. Thus, the Attorney-General’s Reference (no. 6 1980) comments included a small list of exceptions in which a complainant’s consent would be presumed. These exceptions include:

  • Surgical operations
  • Dangerous exhibitions (such as circus acts)
  • Properly conducted sports.

The R v Barnes case later confirmed that properly conducted sports and play within a game were exempt because they did not establish the mens rea for assault but did establish the complainant’s consent for such activities. The list of exemptions was expanded during the R v Brown case. During this case, it was confirmed that acts such as body piercing, ritual circumcision and tattooing were defined as “lawful acts” and therefore confirmed the complainant’s consent despite these acts causing harm.

The press regularly reports on cases where injury, and even death, has resulted from rough sexual activity. In R v Brown, the court held that satisfying sado-masochistic desires did not constitute a good reason and thus the consent of those injured was irrelevant. This issue later appeared in the R v Emmett case where it was confirmed that deliberate infliction of harm was not lawful, despite the harm being inflicted for sexual gratification.

However, in R v Wilson, the defendant was accused of committing assault occasioning ABH (section 47 of the Offences Against the Persons Act 1861) after he branded his wife’s buttocks with his initials at the wife’s instigation during sexual intercourse. The court held that a man branding his wife at her insistence involved no sad-masochistic element and thus consent of the wife was a defence. The court also concluded that the branding was too similar to the exemption of tattooing (R v Brown) and caused no more physical harm than a tattoo. This, no doubt, would have helped secure the acquittal.

The cases of Brown and Wilson are relevant to cases that do not involve sexual intercourse or gratification. For example, in 2018, a tattoo artist and body piercer was convicted of section 18 GBH after performing body modifications on clients that included nipple removal, ear removal and splitting a customer’s tongue. These were all done with consent and at the request of the paying customer. The tattooist argued that his customers have a right to personal autonomy, which means they should be permitted to modify their bodies how they liked. The court considered Brown and decided that the consent of his customers could not provide a defence in that case. It should be noted that the tattooist was not licensed to carry out surgical procedures. If he had been then the result may have been different.

In the R v Dica case, the defendant was HIV positive and had sexual intercourse with the complainants. The defendant was accused of section 18 GBH as contracting the disease would risk “really serious harm” (DPP v Smith) for the complainants. The defendant argued that the complainants had consented to the act whilst knowing the nature and purpose of such act, thus including all risks that were involved. The court held that, due to the complainants being unaware of the defendant being HIV positive, the complainants’ apparent consent to having sexual intercourse did not also apply to the risk of being infected with a serious disease. The courts concluded that the defendant had inflicted GBH on the complainant by having sexual intercourse with her (thus establishing the offences actus reus) and was reckless as to whether the complainant would contract the disease (thus establishing the mens rea of the offence.) In the R v Kozani, it was confirmed that this rule applied to all diseases.

Consent in Sexual Offences

Consent in sexual offences is a difficult and complicated matter. Consent is present in both the actus reus and mens rea of Rape, Sexual Assault and Assault by Penetration offences (sections 1-3 of the S.O.A) . The elements of consent in these offences state that there must be a lack of consent on the complainant’s part (actus reus) and there must be a lack of reasonable belief from the defendant that the complainant was consenting to the act (mens rea).

The law has made some exceptions to this which are dependent on the circumstances. In the R v Bree the courts concluded that a complainant’s “capacity” to make a choice as to whether they consent to intercourse will be affected whilst under the influence of alcohol and/or drugs. It was decided that if the complainant is under the influence of drink or drugs then their capacity and freedom to consent to sexual intercourse will be deemed as irrelevant. The same applies to if the person is unconscious.

Another key element is the nature of the consent given. The law has decided that there is a definite difference between submitting to sexual intercourse and actually consenting to it. In the R v Kirk case, the complainant was a young female who had been sexually abused by the defendant. The complainant had sexual intercourse with the defendant in return for food. The courts decided that due to the complainant’s “desperate” situation, the complainant had submitted to the defendant rather than consented. Due to this, the defendant was then accused and convicted of the offence of Rape.

There are further elements of consent that are fully explained in section 75 and 76 of the S.O.A but these will be discussed fully in a future blog.

Consent is also a major issue in sexual offence cases where the victim is a child. Sections 5-7 of the S.O.A are equivalent of sections 1-3 but for cases which involve a victim who is a child (under 13 years old) and a defendant who is 18 years old and over. These offences state that the complainant’s consent and defendant’s reasonable belief in consent are not relevant. This means that even if the complainant consents to the act, their consent is deemed as irrelevant.

It is important to note that if the victim is between the ages of 13 and 15 years old, the defendant can use the defence that he or she reasonably believed that the complainant was 16 years old and over.

How can we help?

If you have been charged with the offence of any kind and believe that you had the complainant’s consent, we are here to help. We can provide our expert defence team to represent you in court and help you avoid a potentially damaging criminal record.

We will look at all the facts of the accusation and decide whether the defence of consent is the best defence for your case. There is a possibility that we will explore other avenues in regard to defences. This will also include everything from the facts of the case all the way to whether your actions actually amounted to a criminal act.

Our team of litigators and advocates have many years of experience analysing complex factual scenarios and applying them to often novel areas of law ensuring we get the best possible results for our clients. Do not hesitate to call us on 07739795433 or email us on to get expert legal advice for you and your case.