Criminal Law CONSENT IN THE CRIMINAL LAW A Consultation Paper LAW COMMISSION CONSULTATION PAPER No 139 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the I purpose of promoting the reform of the law. The Law Commissioners are: , The Honourable Mr Justice Brooke, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WClN 2BQ. This Consultation Paper, completed for publication on 1 November 1995, is circulated for I comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on this Consultation Paper before 30 June 1996. All correspondence should be addressed to: Mr M Chapman Law Commission Conquest House 37-38 John Street Theobalds Road London WC 1N 2BQ Tel: 0171- 453 1288 Fax: 0171- 453 1297 It may be helpful for the Law Commission, either in discussion with others concerned or in any subsequent recommendations, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response is not intended to be confidential. The Law Commission Consultation Paper No 139 Criminal Law CONSENT IN THE CRIMINAL LAW A Consultation Paper HMSO 0 Crown copyright 1995 Applications for reproduction should be made to HMSO Copyright Unit, St. Crispins, Duke Street, Norwich, NR3 1PD ISBN 0 11 730224 4 Printed in the United Kingdom for HMSO Dd 301848 12/95 C15 59226 17-384-06 THE LAW COMM%§SION ONSENT INTHE C CONTENTS Paragraphs Page PART I: GENERAL OVERVIEW Introductory 1.1 - 1.9 1 The current proceedings before the Strasbourg Commission 1.10 4 The present law 1.11 - 1.13 4 Offences against the person 1.11 4 Sexual offences 1.12 - 1.13 5 Modem proposals for law reform 1.14 - 1.17 6 Offences against the person 1.14 - 1.16 6 Sexual offences 1.17 7 The doctrine of necessity 1.18 - 1.19 7 Secondary liability for consenting parties 1.20 - 1.23 8 Consent as a defence in the wider criminal law 1.24 - 1.27 10 The structure of this paper 1.28 - 1.30 11 PART PI: POLICIES FOR REF0 Introductory 2.1 - 2.2 13 Liberal responses 2.3 - 2.4 13 Paternalist and legal moralist responses 2.5 - 2.9 14 Pragmatic considerations about law enforcement 2.10 16 A recent indication of Parliamentary opinion 2.11 16 Recent case law 2.12 17 Our preferred approach 2.13 - 2.19 18 PART 111: THE EUROPEAN CONVENTION ON HUMAN RIGHTS Sado-masochism 3.1 - 3.11 21 Lawful correction 3.12 - 3.21 24 Religious and cultural practices 3.22 - 3.27 27 Suicide and euthanasia 3.28 - 3.32 29 I.. 111 Paragraphs Page PART IV: CONSENT TO INJURY OR THE RISK OF INJURY AND THE CRIMINAL LAW BILL Introductory 4.1 -4.2 32 Consent to injury 4.3 - 4.6 32 Consent to risk of injury 4.7 - 4.28 33 Reasonableness of risk to be assessed in the light of all the circumstances 4.9 - 4.14 34 Unreasonable risk and consent 4.15 35 Consent a complete defence? 4.16 - 4.17 36 Consent wholly immaterial? 4.18 - 4.20 36 Consent relevant to reasonableness of risk 4.21 - 4.28 37 The definition of seriously disabling injury 4.29 - 4.40 39 Consent and the legal burden of proof 4.41 - 4.45 44 Law reform proposals 4.46 - 4.53 46 Intentional causing of seriously disabling injury 4.47 46 Reckless causing of seriously disabling injury 4.48 46 Intentional causing of other injuries 4.49 47 Reckless causing of other injuries 4.50 47 Definition of seriously disabling injury 4.5 1 47 Meaning of consent 4.52 48 Burden of proof on the issue of consent 4.53 48 PART V: CAPACITY TO CONSENT Introductory 5.1 49 Capacity to consent 5.2 49 Capacity to consent: minors 5.3 - 5.1 1 50 Introductory 5.3 50 Offences against the person 5.4 - 5.7 50 Sexual offences 5.8 51 The responses on consultation 5.9 - 5.1 1 52 Mental incapacity 5.12 - 5.18 53 The present law 5.12 - 5.15 53 Legal competence 5.16 - 5.17 54 The responses on consultation 5.18 55 Law reform proposals 5.19 - 5.22 56 Persons without capacity 5.21 56 Definition of persons without capacity 5.21 56 Capacity and minors 5.21 57 Capacity and the mentally disabled 5.21 57 Capacity to understand in broad terms 5.21 57 iv Paragrap hs Page PART VI: FRAUD, MISTAKE, FQRCE, THREATS, ABUSE QF POWER AND OTHER P Introductory 6.1 - 6.4 59 The CLRC Review and the Draft Criminal Code 6.5 - 6.7 61 Consultation on the meaning of consent 6.8 - 6.10 62 Fraud and mistake 6.1 1 - 6.33 62 The requirement for information to be given 6.22 - 6.23 67 Self-induced mistake and non-disclosure 6.24 - 6.33 68 Force and threats of force 6.34 - 6.37 70 Other threats and intimidation 6.38 - 6.72 72 Whether the act threatened is lawful 6.50 75 Whether the consent is voluntary 6.51 - 6.58 75 Whether the threat is legitimate 6.59 - 6.64 78 Threats, offers and abuse of power 6.65 - 6.72 80 Other pressures 6.73 - 6.77 82 Law reform proposals 6.78 - 6.90 85 Types of deception that may nullify consent 6.79 85 Other types of fraudulent misrepresentation that may nullify consent 6.80 85 An offence of procuring consent by deception 6.81 85 A definition of “deception” 6.82 86 Inducing another person to perform an act on oneself by deception 6.83 86 The duty to communicate information 6.84 86 Self-induced mistake 6.85 86 Non-disclosure 6.86 87 Inducement by threats of non-consensual force 6.87 87 The effect of other threats on the validity of consent 6.88 87 An offence of procuring consent by threats 6.89 87 Special consideration for a particular class of threat 6.90 88 PART VII: THE DEFENDANT’§ MENS REA 7.1 - 7.35 89 PART VIII: MEDICAL AND SURGICAL TREATMENT Introductory 8.1 - 8.6 102 The approach adopted in other criminal codes 8.7 - 8.11 104 The relevant issues 8.12 - 8.24 105 The nature and scope of the defence of necessity 8.13 106 Who may lawfully administer medical treatment 8.14 - 8.15 106 That the treatment is performed with reasonable skill and care 8.16 107 That it is reasonable to administer the treatment 8.17 107 That the treatment is for a therapeutic purpose, for the purposes of medical research, or for another lawful purpose 8.18 107 V Paragraphs Page That if the person in question is capable, he or she has given consent 8.19 - 8.21 107 That if the person in question is not capable or is under 18 a lawful consent has otherwise been given 8.22 108 That the treatment is for the patient’s benefit 8.23 108 That the treatment, or research, involves a risk of harm that is not disproportionate to the expected benefits 8.24 108 The formulation of a medical exemption 8.25 - 8.48 109 Sterilisation 8.26 109 Abortion 8.27 109 Sexual reassignment operations 8.28 - 8.29 110 Cosmetic surgery 8.30 110 Organ transplants 8.31 - 8.37 111 Medical research 8.38 - 8.48 114 Law reform proposals 8.49 - 8.52 117 PART IX: CIRCUMCISION, TATTOOING, COSMETIC PIERCING, BRANDING AND SCARIFICATION Introductory 9.1 119 Circumcision 9.2 - 9.3 119 Male circumcision 9.2 119 Female circumcision 9.3 120 Tattooing 9.4 - 9.6 120 Piercing, branding and scarification 9.7 - 9.21 122 Decorative practices 9.7 - 9.12 122 Religious and cultural practices 9.13 - 9.19 124 Piercing etc: a general comment 9.20 - 9.21 126 Law reform proposals 9.22 - 9.29 i 27 PART X: THE INFLICTIQN OF INJURY BY CQNSENT FOk THE PURPOSE OF CAUSING PAIN The causing of pain for religious or spiritual purposes 10.1 - 10.15 130 The causing of pain to enhance sexual pleasure 10.16 - 10.41 133 The borderline between sex and violence 10.42 - 10.51 144 Law reform proposals 10.52 - 10.55 146 Injuries intentionally caused for sexual, religious or spiritual purposes 10.55 148 PART XI: LAWFUL CO CTPON 11.1 - 11.20 149 vi Paragraphs Page ES, MARTIAL ARTS Introductory 12.1 - 12.6 157 The intentional infliction of injury 12.7 - 12.8 159 The reckless infliction of injury 12.9 - 12.31 159 The test of “reasonableness” 12.15 - 12.16 161 The court’s power to determine whether the rules are reasonable 12.17 - 12.23 162 How our proposals would work in practice 12.24 - 12.31 163 Boxing 12.32 - 12.38 165 Martial arts 12.39 - 12.50 167 Amateur play and practice 12.51 170 Secondary liability 12.52 - 12.59 170 Presence at the scene 12.55 - 12.57 171 Failure to exercise control 12.58 - 12.59 172 School games and compulsory sports activities 12.60 - 12.63 173 Dangerous exhibitions 12.64 - 12.67 174 Law reform proposals 12.68 - 12.69 175 XI TS Introductory 13.1 - 13.5 177 Recognition machinery 13.6 - 13.18 178 Law reform proposals 13.19 - 13.20 182 OWSEPEAY Introductory 14.1 184 The law relating to offences against the person 14.2 - 14.3 184 The law relating to the preservation of public order 14.4 - 14.7 185 The responses on consultation 14.8 - 14.15 186 Law reform proposals 14.16 - 14.21 188 PART XV: OFFENCES CONCERNED WITH PUBLIC MORALITY AND PUBLIC DECENCY Introductory 15.1 191 Keeping a disorderly house 15.2 - 15.4 191 Brothel-keeping 15.5 1 192 Previous law reform proposals 15.6 - 15.8 193 Offences against public decency 15.9 - 15.11 194 Conclusions 15.12 195 PART XVI: SUMMARY OF PROVISIONAL WOPOSALS AND ISSUES FO NSUJLTATION 197 vii Paragraphs Page APPENDIX A: RELEVANT PROVISIONS IN THE PRESENT LAW, THE CRIMINAL LAW BILL, AND THE DRAFT CRIMINAL CODE Offences against the person 210 Relevant extracts from the 1993 Criminal Law Bill 210 Sexual offences 21 1 (i) Some relevant provisions of the present law 21 1 (ii) Some sample extracts from