Consent (Cases)

Slingsby
D was charged with manslaughter when his partner died of septicaemia following consensual, although extremely
vigorous, sexual activity. The validity of the conviction depended upon whether the sexual activity involved an
unlawful battery. The prosecution argued that it was extremely rough and had caused the victim harm. This
argument was rejected on the basis that the activity was consensual. Since there was no battery, there could be no
liability for constructive (unlawful act) manslaughter.

R v Donovan [1934]
Facts
It was established at trial that the appellant, Mr Donovan, had ‘induced’ the victim to accompany him to his garage,
wherein he had proceeded to beat her with a cane in ‘circumstances of indecency’. Mr Donovan argued that the
victim had agreed to meet him in full understanding of his intentions, and had given every indication that she was
consenting throughout. The trial judge directed the jury that ‘consent or no consent’ was the issue in cases of
assault, and Mr Donovan was subsequently convicted of both indecent assault and common assault. An appeal was
brought on the grounds that the jury had not been given adequate direction to decide the issue.
Issue
It was argued on appeal that the direction given at trial was defective in two respects. Firstly, it failed to establish
that the burden of negativing consent fell to the prosecution, rather than the defence. Secondly, it failed to address
whether, and in what circumstances, a person could legally consent to the infliction of actual bodily harm.
Held
Held that, in cases where a person acts with intention to inflict bodily harm, the consent of the victim cannot render
otherwise unlawful conduct lawful. Moreover, in cases where there was a question as to whether the defendant
intended to inflict such harm, the burden of negating consent fell upon the prosecution. The Court confirmed that
the phrase ‘bodily harm’ should be given its ordinary meaning, and includes
“….any hurt or injury calculated to interfere with the health or comfort of the prosecutor.” ([1934] 2 KB 498, per
Swift J)
Such harm need not be permanent but it must not be “merely transient or trifling”

R v Olugboja [1982]
Two girls, Jayne aged 16 and Karen 17, had been offered a lift home from a disco by Mr Lawal. They accepted the
lift, however, instead of taking them home he drove to his home in the opposite direction. The girls refused to go in
and started walking off. He followed them in the car picked up Jayne and drove off and raped her. He then picked
Karen up and took them both back to his home where the appellant was. Lawal took Karen upstairs and raped her.
The appellant turned off the lights told Jayne to take off her trousers. She was crying and complied out of fear. The
appellant proceeded to have sexual intercourse. Jayne did not resist, struggle or scream. The appellant was
convicted of rape and appealed.
Held:
Appeal dismissed conviction upheld.
Dunn LJ:
“The jury should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by
way of example, that there is a difference between consent and submission; every consent involves a submission,
but it by no means follows that a mere submission involves consent.”

R v Kirk (2008)
V was a young woman who had run away from home. She was cold and hungry and asked D for help. He offered her
3.25 pounds if she agreed to have sex with him. She did and he gave her the money. The CoA upheld his conviction for
rape. Her desperate situation meant she lacked the freedom and capacity to consent
A-G ref No 6 of 1980 [1981] QB 715
Two youths aged 17 and 18 had an argument in a public street. They decided to settle their argument with a fight.
One removed his watch and the other removed his jacket before commencing. They both consented to the fight.
One sustained bruising to the face and a bleeding nose.
Held:
As a matter of policy a person cannot consent to fist fights resulting in ABH or greater harm irrespective of whether
they are conducted in public or private. Unless it comes within any of the established exceptions of:  properly
conducted games and sports, lawful chastisement, reasonable surgical interference, dangerous exhibitions,
cosmetic enhancements or horseplay.
R v Barnes [2004]
Facts:
The appellant was an amateur footballer. He was playing a football match, went in for a tackle and seriously injured
his opponent’s leg. He was charged with inflicting grievous bodily harm under section 20 of the Offences Against
the Person Act 1861.
Issue:
When is it appropriate for criminal proceedings to be brought after an injury occurs in the course of sport, by one to
another? The court found that as most sports have their own disciplinary procedures and rules, such conduct is
usually dealt with appropriately within the sporting context. The court need only intervene when the conduct that
has occurred is extreme or seriously grave and can be properly categorised as criminal. The conduct that occurs
must reach the required threshold to be considered grievous bodily harm as per s 20 of the Act.
Held:
Participation in a sport such as football gives rise to implicit consent to a risk of injury and even grievous bodily
harm. If an injury or act occurs that cannot reasonably be considered to be acceptable when playing sport, then
there is no implicit consent and the conduct will not be covered by a defence. In the present circumstances, the
judge held that the actions of the appellant could not reasonably be considered to have gone beyond what is
acceptable in sport and did not require criminal intervene. Even if the conduct did constitute a foul within the game,
resulting in Barnes being sent off. No malice or intent to injure could be found in the conduct, failing to meet the
requirements of s 20. What is reasonably acceptable contact in sport depends on the circumstances of the case.
Therefore, the appeal was allowed and the conviction quashed