Tutorial 10: Consent to Harm

Key Cases: A-G’s Reference (No 6 of 1980) [1981] 2 All ER 1057; R v Brown [1993] 2 All ER
75, BM [2018] EWCA Crim 560; R v Wilson [1996] Crim LR 573; Aitken [1992] 1 WLR 1006;
Konzani [2005] EWCA Crim 76
Questions
1. What is the general legal principle on consenting to harm stated in A-G’s Reference
(No 6 of 1980) [1981]?

- If ABH or more serious injury was caused, the victim’s consent would not
provide a defence, if mere battery, yes.
- Certain exceptions exist for special categories of activity

2. Come prepared to share your thoughts on the assigned excerpt from Lois Bibbings’
chapter in light the law’s approach to non-fatal offences against the person and
consent to harm.

Bibbings
- main point – current criminal law effectively allows men to be violent in certain
circumstances and that this condonation and some of the assumptions which underlie
it need to be challenged. Violence should be taken seriously, regardless of the gender
of the perpetrator and the victim; law reform is just one means of seeking to achieve
this goal
- one can consent to assault and battery, but not to the offences contained in ss 18,
20 and 47 of the OAPA
- notable exceptions to this approach, most of which are tied up with notions of
hegemonic masculinity, although other exceptions exist where the activity concerned
is generally accepted or is seen to have some other value (such as tattooing, piercing
and medical operations).
- some types of inter-male violence have been perceived by the judiciary as normal
aspects of being a normal man; boys will, after all, always be boys
- exceptional circumstances exist where bodily harm is not intended and either the
activities involved are: ‘manly diversions’, which are intended ‘to give strength, skill
and activity’ and equip people (men?) ‘for defence, public or personal, in time of
need’; or they constitute ‘horseplay – In these instances, the act is not, in itself,
considered to be unlawful and becomes unlawful only if there is deemed to be an
absence of consent
- in the past, feuding and prize fights were considered as manly pursuits, which
allowed men to stay healthy, fit and ready for all eventualities, including specifically
being called upon to fight for their country – subject to the limitation that such fights
should not result in such severe injuries that they would prevent men from being
future combatants
- whilst the notion of manly diversions and horseplay remains, these exceptions have
been partially eroded – feuding, bare knuckle prize fights and fighting have either
been criminalised or are now only legal in some circumstances
- Attorney General’s Reference (No 6 of 1980) – consent deemed irrelevant
because public interest called for protection of the male body
- Jones - held that it should have been put to the jury that, if the boys had just
been indulging in ‘rough and undisciplined play’, with no intent to injure, and in
the genuine belief (whether reasonably or unreasonably held) that the victims
were consenting, they could be acquitted. Although the court felt that a jury
might have rejected this in the present context, its decision implies that
schoolboys are assumed to accept a certain degree of risk as a result of their
status as boys and, thus, that the question of their consent is effectively rendered
legally irrelevant by the sole focus on the perpetrator’s belief in consent.
- Aitken – appellants convictions quashed on the basis that their actions involve
horseplay and, since the victim had taken part in the other activities of the evening, it
was possible that his continued presence constituted acceptance of their actions.
Defendants should be acquitted if they had genuinely believed (reasonably or
not) that the victim had consented. The question of whether the victim consented
or not was, hence, once again effectively rendered irrelevant.

Implications from these cases:

- the judiciary expects schoolboys and male RAF members to take a little manly
roughness like a man without complaint.
- in these peculiarly masculine spaces, the judges seem more keen to protect the
perpetrators from conviction than to defend the victims’ interests. Presumably,
victims who do not wish to be involved in such activities must make this very,
very clear in order for a conviction to follow
- Whilst there was no explicit mention of the fact that the protagonists in Jones and
Aitken were all male, the tone of the judgments suggest that horseplay was
assumed to be a quintessentially male activity
- protagonists were a particular type of male, in that they conformed to hegemonic
or, in the case of Aitken, possibly even exemplary constructions of masculinity
- House of Lord’s decision in Brown [consensual (homosexual) sado-masochistic
activities for sexual pleasure, which resulted in their ‘victims’ receiving some
injuries] shows that the same latitude is not extended to men who enact violence
in extraordinary and deviant ways.

- Brown – held that ‘it would not be in the public interest that deliberate infliction
of actual bodily harm during the course of homosexual sado-masochistic
activities should be held to be lawful’
- Majority - gay sado-masochistic activities of the appellants were violent, rather
than sexual, in nature, as well as being unnatural, dangerous and by no means
manly diversions.
 - although the activities in question were categorised as non-sexual offences
against the person, it is arguable that it was their sexual, or rather their
homosexual, character which provided the, or at least one, underlying
justification for their criminalization. The sado-masochism was sexual play in
the eyes of the participants, but it was certainly neither (hetero)sexual nor manly
horseplay in the minds of the majority. Consequently, consent was not available
as a defence
- in contrast to the Jones and Aitken cases, all the participants in Brown were clearly
consenting
- The inference to be drawn from a comparison of these cases thus seems to be, that, as
long as men keep to certain (supposedly) heterosexual manly spaces and are
appropriately masculine, they are expected and, indeed, allowed to display some
quite extreme levels of violence. But these spaces are not objectively violent; rather,
they are socially constructed as such, because society and criminal justice personnel
interpret behaviour in a certain way in particular spaces—the space becomes one
where violence is condoned
- Double standard
- Jones and Aitken – even Jones did not expressly consent but implied – problematic in
bullying cases; horseplay – exceptional category – promoting violence – but BM case
should not promote violence

3. Why was BM [2018] not acquitted, given that the activities in question were done
for body adornment purposes? Evaluate the court’s reasoning in light of theories of
criminalisation and their limitations.

Decision hints paternalism, liberalism

Paternalism – protect people from themselves
- Criticism: state telling us what to do, infringes autonomy, criminalise certain
behaviour
Liberalism – shouldn’t criminalise unless harm is caused
- Right not to be harmed by others – basis of liberalism
- Medical complications burden NHS
- Allow piercing, tattoos – can be a cause for diseases, but body modifications
illegal? Fast-pace cultural changing?
Legal moralism
- Doesn’t conform to social norms that exist
- Want to avoid praising violence [moralism]
- Problem: stigmatises certain people; who’s morality should be based on? Is
there any accepted social norms?
- Alternative: Should be convicted for practicing medical without licence rather
than s18?

Problems of uncertainty
- Body modification can go to the category of body adornment? Cosmetic surgery
is also dangerous, why not body modification be considered body adornment?
- Law needs to be clear; BM might not know, court might not know this is illegal,
therefore question of blameworthiness; should he be labelled as someone who
has intention to inflict GBH s18; legality principle; fair labelling and
blameworthiness; do we want people to cut off their ears by themselves or seek
for medical professions? Greater potential of hurting yourself due to
inexperience

Surgery and Medical Treatment

Difference between medically necessary and cosmetic surgery
- Amputation of healthy limbs – Body integrity identity disorder: condition in which
people have serious discomfort with their body- identify as an amputee
- If its for a valid medical reason it should not be criminal
- From Attorney general reference case: reasonable surgical interference - elective
surgery would only be reasonable if carried out by someone who is medically
qualified. That profession is governed with the policy to protect the public.
Patients in that setting are provided medical evidence vs clients in tattoo/piercing
parlor.
- Irreversible surgery without anaesthetic with profoundly long-term
consequences [paternalism]
- The reasoning behind centres on protecting people who elect for this kind of body
modification: vulnerable or may be suffering from a mental illness
- Compared it to gender reassignments where there is extensive nature of protection
provided. Care and support given to patient prior to
- Personal autonomy is not sufficient justification for removing body modification
from the law of assault Personal autonomy does not extend to involve others.
 left up to parliament or supreme court to draw a line which allows consent to act
as a defence to causing ABH and wounding
- up to parliament to set out legislation in this area
public policy
- the lack of proper regulation and accountability to those who perform such body
modification procedures
- Body modification is an unregulated and medically invasive profession which raises
the issue that concerns are not just about the safety of procedure of surgical nature but
also potential concerns about the patient’s mental health
Rationale
 1. Law shouldn’t be seen to praise violence, even where consent
2. Need to protect people from themselves (bad decisions) [paternalism]
3. Medical risks may impose loss on society (resources spent on medical treatments of
consequences resulted from bad decisions) [liberal?]
4. Exceptions are deeply embedded in our culture – not the norm of society and not to
be recognised
Law Commission
- Consent should operate as defence for infliction of harm short of serious disabling
injury but could for a lesser injury
Samantha Pegg’s two objections to the reasoning used to find extreme modification
lawful [refer pg408-409 for full text]
1. Those who are seeking modifications are looking to harm themselves
- Discussing it in this manner distances body modifications procedure from piercing
and tattoo; procedures which are viewed in law as decorative rather than intrinsically
harmful
- Tattoos and body piercings cause bodily harm and are no more medically warranted
than a tongue slit or nipple removal
- crux of the court’s argument was that these modification procedures would be
“incomprehensible to most”—that there were no strong public policy arguments for
exempting them from the general rule
- marginalizing the activities which are growing in prevalence – probably more well-
practised than the court had appreciated

2. The ability to give valid consent should not be a decisive matter in any
consideration of whether an activity should be exempted from the general rule
- Should be based on whether an individual, on a particular day, has the capacity to
give consent
- Not a sound rationale to infer that those seeking bodily modifications may be
mentally ill
- Mentally ill people engage in dangerous activities and cosmetic surgery but there is a
trust that their governing bodies will self-regulate

4. Do you think BM demonstrates anything problematic about the clarity of the law in
this area?

- limited in the definition of body modification

- discredits a valid practice that can be safe if people are trained properly
- doesn’t respect personal autonomy
5. Read R v Brown [1993] and watch “Lasting Marks”. What did you learn or
experience with the video that you didn’t with the case? Do you think this is relevant
to your legal education? What does this tell you about criminal law and its sources?

- R v Brown 1993: House of Lords judgment in which a group of men were convicted
for their involvement in consensual sadomasochistic sexual acts over a 10-year
period. They were convicted of "unlawful and malicious wounding" and "assault
occasioning actual bodily harm" contrary to sections 20 and 47 of the Offences
against the Person Act 1861. The key issue facing the Court was whether consent was
a valid defiance to assault in these circumstances, to which the Court answered in the
negative
- Humiliated in the eyes of the public; precedent for taboo of sex; Wilson – branded
butts ok because hetero, Brown consensual but homo – not masculine
- Aftermath of the case – protest for homo rights
- Humanises case laws – effects of a case in the shoes of a defendant; psychological
harm, lost job, [state v individual]
- AIDS epidemic?
- Double standard; Wilson, Brown treated differently, Emmet – fine since its domestic
but could be domestic abuse

6. Assess the legality of the following acts:

a) A tennis player who out of anger throws their racket at their opponent, causing a
sprained wrist.

- S47 – sprained wrist – ABH

- Sports – consent usually a defence to injuries received in the course of the sporting
event even if those injuries involve ABH, presumed that by playing the sport, V has
consented to the infliction of the kind of force normally involved in the game
- Barnes – If there was a foul ‘quite outside what could be expected to occur in the
course of a football game’, could be a criminal offence
- Throwing racket at opponent – considered an ‘over-the-top’ foul, not a normal foul;
no contact sport

b) A teenager who sneaks up and pushes his friend, with whom he often plays rough,
off a first-floor balcony, causing a broken arm.

- Horseplay – manly diversions that intend to give strength, skill and activity and may
fit people for defence (Foster cited in Donovan)
- Jones – honest but mistaken consent will serve as defence; often plays rough –
genuinely believed consent
- Aitken – regularly played a variety of mess game which involved a certain degree of
harm, convictions quashed largely on the basis that their actions involved horseplay
and, since the victim had taken part in the other activities of the evening, it was
 possible that his continued presence constituted acceptance of their actions,
defendants should be acquitted if they had genuinely believed (reasonably or not) that
the victim had consented

c) A doctor amputating a fully healthy leg due to the amputee’s deep psychological
belief that their body should only have one leg.

- Surgery and medical treatment done by a doctor. This would be acceptable and
related to T. Elliot.
- Elliott argues that some people have a psychiatric stress caused by having body
dysmorphia
- Recognised professional – doctor, rather than some random tattoo parlour,
psychological belief – capacity to decide?
- Legal?
- BM – court concerned with permanent damage? But this is done by recognised
professionals? Why allow cosmetic surgeries which are also dangerous but X allow
this?

d) Reshaping a customer’s ears to look more like those of an elf, done for aesthetic
purposes at a tattoo parlour by cutting out a section of the cartilage and stitching
the ears to a point.

- Might help him: not as permanent as cutting off body parts – cartilage can regrow?

- From the case of BM: can’t consent to types of body modifications even if the
procedure is done in a sterile professional setting. The defendant is not medically
qualified. He is not in a position to ensure that the clients had the capacity to consent
nor did clients have the reassurance of him having received appropriate training.
- Medical treatment caused severe harm to the patient without corresponding benefit.
Its unclear where the line is drawn and what principle is was drawn on: no benefit or
not qualified?
- A tattoo parlour would not be medically qualified to perform this type of body
modification so it is likely the courts will find consent not a defence. A charge would
most likely fall under s. 20
- Personal autonomy of customers does not provide the appellant with a justification
for removing body modification from the ambit of the law of assault.
- It doesn’t fall under a societal benefit