Q: If individuals wish consensually to inflict harm upon one another the law should not intervene.

Discuss with reference to decided cases.

Essay outline answer

You need to be able to deal with consent by way of a problem question and an essay. A typical problem question could ask you to consider a person’s consent to physical contact such as being touched by someone who appears to be a doctor but in fact is not, or to a partner’s consent to being tattooed or branded, or to sexual intercourse with a partner who has not disclosed a sexually transmitted disease (such as HIV). Most problem questions are based on existing cases (Tabassum [2000], Wilson [1997], and Dica [2004]), but you need to do more than identify the relevant case by its facts. You must know the legal basis of the decision and provide any relevant critical commentary, bearing in mind that the only House of Lords’ case on consent is Brown [1994] (that consent is no defence if bodily harm is caused, whether intended or not, but note the violent/non-violent crime distinction).

This brings us to the types of essays that are set on consent and such as is set here. You must avoid reciting all you know about consent irrespective of the title. Always answer the question! This will usually be about the extent to which valid consent can be given to acts and/or harm caused, and the public policy reasons for placing limits on the defence. Again, you must know both the facts of, and the law from, the cases, and the apparent conflicts between Brown [1994] at the House of Lords on the one hand and the numerous Court of Appeal cases, on the other, which may appear to conflict with or limit Brown [1994] to the intentional causing of harm in crimes of ‘violence’ (excluding branding another person’s buttocks?). Some analysis of the public interest matters would be expected.

The essay question asks you what the law ought to be. You can discuss here the principles of autonomy (that people should be free to do what they want with their bodies); moralism (that it is appropriate to use the law uphold moral standards); and paternalism (people need protecting from harming themselves). You might also want to consider whether the law can effectively distinguish cases of consensual and non-consensual BDSM