Criminal Law: Consent and Intentional Harm

Brown = Consent to GBH & ABH is not available as a defence, unless policy and public interest require the activity to be lawful Kirk = Vitiating consent due to lack of freedom Wilson = No aggressive intent in branding, similar to tattooing Emmet = Degree of harm intended to V is to be considered

Deception as to age (except the age of consent) = Does not vitiate consent Deception as to marital status = Does not vitiate consent Deception as to mental state (except Jheeta) = Does not vitiate consent Impersonation of a police officer = Vitiates consent

S74 = Definition of consent S75 = Evidential presumptions of lack of consent S76 = Conclusive presumption of lack of consent S1 = Rape

R v C = V must have sufficient mental capacity to understand the choice Jheeta = Deception as to mental state vitiates consent Kirk = Vitiating consent due to lack of freedom Watson = Reluctant consent is still consent

Freedom = A person consents if they have the freedom to make that choice Capacity = V must have sufficient mental capacity to understand the choice Evidential presumption = Sometimes consent is impossible to prove Conclusive presumption = No consent is possible in certain circumstances

Jheeta = Conclusive presumption of lack of consent Watson = Reluctant consent is still consent Kirk = Vitiating consent due to lack of freedom S75 = Evidential presumptions of lack of consent

A person (A) impersonates someone known to B to obtain consent = S76 conclusive presumption of non-consent B says stop during sexual intercourse due to pain = S74 freedom and capacity to make a choice A induces fear of violence to obtain consent = S75 rebuttable presumptions A deceives B about the nature and purpose of sexual activity = Intentional deception as to nature and purpose

A person consents if they agree by choice, and have the freedom and capacity to make that choice = S74 Intentional penetration with lack of reasonable belief in consent = S1 Conclusive presumptions of non-consent = S76 Rebuttable presumptions of non-consent = S75

A intentionally penetrates B without consent, but believes B wants to = Lack of reasonable belief in consent B is unconscious during sexual intercourse = S75 rebuttable presumptions A uses violence to obtain consent from B = S75 rebuttable presumptions A deceives B about their identity to obtain consent = S76 conclusive presumption of non-consent

S74 freedom and capacity to make a choice = B has the ability to make an informed decision S76 conclusive presumption of non-consent = A is deemed to have not obtained consent due to certain circumstances Intentional deception as to nature and purpose = A lies about the purpose of the sexual activity S75 rebuttable presumptions = A is assumed to have not obtained consent, but can be proven otherwise

B has a disability that prevents communication = S75 rebuttable presumptions A induces fear of violence to obtain consent from B = S75 rebuttable presumptions B is unconscious during sexual intercourse = S75 rebuttable presumptions B is unable to make an informed decision due to intoxication = Lack of capacity to consent

Intentional deception as to nature and purpose = A tells B that the sexual activity is for a medical exam S76 conclusive presumption of non-consent = A impersonates someone known to B S75 rebuttable presumptions = B is unconscious during sexual intercourse Lack of reasonable belief in consent = A does not check if B is willing to engage in sexual activity

Deception as to the removal of a condom before ejaculation = Vitiating deceptions common law Deception as to the sex (gender) of the defendant = Vitiating deceptions common law Deception as to the purpose of the act, such as inducing sexual activity to record and humiliate = Conclusive presumption as to lack of consent Deception as to the identity of the person, such as impersonating someone personally known to the victim = Conclusive presumption as to lack of consent

Deception as to the nature and purpose of the act = Conclusive presumption as to lack of consent Deception as to the broader circumstances of the intercourse = Vitiating deceptions common law Deception as to the sexual intercourse itself = Vitiating deceptions common law Deception as to the identity of the person, such as impersonating someone personally known to the victim = Conclusive presumption as to lack of consent

The victim is drunk, but still has the capacity to make a choice = Capacity to consent The victim is deceived as to the purpose of the act, such as inducing sexual activity to record and humiliate = Conclusive presumption as to lack of consent The victim is unconscious or asleep = Rebuttable evidential presumption as to lack of consent The victim is deceived as to the identity of the person, such as impersonating someone personally known to the victim = Conclusive presumption as to lack of consent

The defendant administers an overpowering substance, such as drink spiking = Rebuttable evidential presumption as to lack of consent The victim is deceived as to the sex (gender) of the defendant = Vitiating deceptions common law The victim is unaware that sex is taking place = Conclusive presumption as to lack of consent The defendant uses violence or threat of immediate violence = Rebuttable evidential presumption as to lack of consent

The victim is deceived as to the removal of a condom before ejaculation = Vitiating deceptions common law The defendant immobilizes the victim, such as unlawful detention = Rebuttable evidential presumption as to lack of consent The victim is deceived as to the identity of the person, such as impersonating someone personally known to the victim = Conclusive presumption as to lack of consent The victim has a disability that prevents communication = Rebuttable evidential presumption as to lack of consent

The defendant induces sexual activity to record and humiliate/blackmail = Conclusive presumption as to lack of consent The victim is deceived as to the broader circumstances of the intercourse = Vitiating deceptions common law The defendant uses fear of violence, such as threat of loss of job or ending relationship = Rebuttable evidential presumption as to lack of consent The victim is deceived as to the sexual intercourse itself = Vitiating deceptions common law