For this essay we will be looking at the defence of assault and battery, consent. But first we have to discuss what is assault and battery.
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In most crimes there are always defences to the offence that has been committed, for example, if one is charged with murder, then a defence of either provocation or diminished responsibility can be raised. There are other defences such as mistake or intoxication. In this case one will discuss when the defence of consent can be used against a criminal charge. For this essay we will be looking at the defence of assault and battery, consent. But first we have to discuss what is assault and battery. Assault and battery are separate crimes, under S.39 of the Criminal Justice act 1988. This was confirmed in the case of DPP vs. Little 1992. In legal terms an assault means to cause V to apprehend force, for example, waving a fist at someone's face is deemed an assault, while battery means to apply force to V; for example, punching someone in the face is a battery. Usually the two crimes are committed close together. So for instance, drawing your fist back is an assault, and then throwing the punch and connecting is a battery. Hence assault and battery. In the case of R vs. Clarence 1888 P consented to intercourse with D, despite D knowing that he was suffering from a venereal disease, which P did not know about.
There are limitations on consent to anyone when it comes to infliction of harm upon them. A fight in public is unlawful at common law as a breach of peace. This is because the whole enterprise in unlawful, consent is not a defence. However, boxing under the Queensbury rules is treated differently. A boxer who tries to knockout his opponent certainly has the intention to cause serious harm, which is sufficient mens rea for murder and in the case of R vs. Brown 1993 all Lordships accepted that boxing was lawful. In this case two youths aged 17 and 18 decided to settle and argument with fists. One had sustained a bloody nose and bruised face. The other was found guilty of assault occasioning actual bodily harm. In the Attorney-General's Reference (No. 6 1980) it was stated: '...It is not in the public interest that people should try to cause or should cause each other ABH for no good reason. Minor struggles are another matter. So, in our judgement, it was immaterial whether the act occurs in private or in public; it is an assault if ABH is intended and/or caused. This means that most fights will be unlawful regardless of consent.' Is there a defence of consent when the charge is one of GBH caused by rough and undisciplined play?
This shows the changing influence of public policy. However in the case of Brown and others 1993 this was deemed not to be the case. In this case Anthony Brown and other appellants belonged to a group of sadomasochistic homosexuals who, over a 10-year period willingly and enthusiastically participated in acts of violence against each other in order to gain sexual pleasure. Most of these acts were taken place in rooms that was designed as torture chambers. Activities included branding with hot metal or wire that was heated by a blow-lamp and genital torture. There was no complaints to the police, no medical attention was ever needed and there was no permanent injuries where sustained. The police discovered the activities by accident. All members were charged with various offences, including ABH under S.47 and wounding under S.20. They were convicted, and there appeal was dismissed. It was held that in the opinion of the majority, public policy requires the conviction of men participating in consensual sadomasochistic homosexual encounters resulting in ABH and wounding, so to protect society against a cult of violence with the danger of corruption of young men. This case shows that even though all men had consented to what they was doing there was still no defence to what they had taken part in. As it was said above crimes that affect and could influence the society is a crime that should be convicted of.
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