Criminal Law Issues

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Even though consent must be precise in nature to the act concerned, it need not be stated expressly. The medical treatment given by doctors to the patient may amount to the battery or be an aggravated non-fatal offense if consent was not obtained. However, where consent is given, it would be a defense, as such treatment is likely to result in bodily harm being caused.

There has been an implied presumption that people consent to ordinary social contact, however, this also depends on the surrounding situations and circumstances (Lord Goff in Re F where private and public necessity was discussed).

The fact that a fraud has been committed to obtaining consent to sexual intercourse by false representation, would constitute a battery (R v. Williams)6. The rule that stood was that the fraud must go to the nature of the act or to the characteristics of the executor and it had been decided that if a fraud to the effect and result of the act was committed, it would not in itself suffice so as to vitiate consent (R v. Clarence where the identity was known but not the collateral and so no assault)7. However, in R v. Tabassum8, the court found that there had been consent as to the nature of the act and none in relation to the quality, thus creating a new dimension of ‘quality’.

In a recent Court of Appeal decision (Rv Dica)10, it was stated that Clarence would not be of appropriate application where the defendant had infected two sexual partners with HIV and so consent to unprotected sexual intercourse clearly did not mean that that the victim had impliedly consented to the risk of such infection from the act. Thus, even though there was no fraud as to the nature of the act of sexual intercourse, there was a fraud as to the possible risk of HIV, thus they had not consented to bodily harm. This approach was followed by the court in later decisions.