As an application of parens patriae, for example, minors cannot consent to having sexual intercourse under a specified age even though the particular instance of statutory rape might be a "victimless" offense.
In R v Donovan (1934) AER 207 in which Swift J. stated the general rule that: No person can license another to commit a crime, if (the jury) were satisfied that the blows struck ... were likely or intended to do bodily harm ... they ought to convict ... only if they were not so satisfied (was it) necessary to consider the further question whether the prosecution had negatived consent.However, consent is valid in a range of circumstances, including contact sports (such as boxing or mixed martial arts), as well as tattooing and piercing.
[3] The issue of consent in the course of sado-masochistic sexual activity was considered in R v Stein (2007), a case in which a participant died as a result of being gagged.
This decision was confirmed in the ECHR in Laskey v United Kingdom (1997) 24 EHRR 39 on the basis that although the prosecution might have constituted an interference with the private lives of those involved, it was justified for the protection of public health.
In R v Emmett (unreported, 18 June 1999), as part of their consensual sexual activity, the woman allowed her partner to cover her head with a plastic bag, tying it tightly at the neck.
The general rule, therefore, is that violence involving the deliberate and intentional infliction of bodily harm is and remains unlawful notwithstanding that its purpose is the sexual gratification of one or both participants.
[5] Alzheimer's disease or similar disabilities may result in a person being unable to give legal consent to sexual relations even with their spouse.
In Victoria, South Australia, Tasmania and the Northern Territory, there is no consent where the complainant is so affected by alcohol or other drugs as "to be incapable of freely agreeing" to the sexual activity.
This formulation adopts the view expressed in the 2010 Family Violence – A National Legal Response report of the Criminal Justice Sexual Offences Taskforce and Australian Law Reform Commission that the degree of intoxication and whether it was such that a person was "unable to consent" are matters for the jury.
Now the ruling in R v Chan-Fook [1994] 1 WLR 689, which held that psychiatric injury could be actual bodily harm, has been confirmed by the House of Lords in R v Burstow, R v Ireland [1998] 1 Cr App R 177.
In R v Richardson [1998] 2 Cr App R 200, the patient believed that she was receiving dental treatment which otherwise would have given rise to an assault occasioning actual bodily harm, from a dentist who had in fact been struck off the register.
A paper on the website The Student Lawyer examined the basis for fraud as grounds for negating consent, in the context of the decision not to charge officers involved in the UK undercover policing relationships scandal.
The more modern authorities involving the transmission of psychological conditions and in other sexual matters, reject the notion that consent can be a defense to anything more than a trivial injury.
The community prefers that sexual relationships are a private matter between the individuals involved and if adults were suddenly to be liable to prosecution for taking known risks with their health, this would represent a significant interference with personal autonomy.
Further, the law cannot expect people suddenly to become honest with each other and to counsel the use of condoms, and there may be negative consequences if HIV was to be disclosable, because those who ought to take medical advice and undergo tests, might be discouraged from doing so.
Consequently, the Appeal Court decided that had the women known of his infection, their consent to unprotected sexual intercourse would have been a valid defense.
This suggests that consent will only operate as a defense – in all but the most exceptional of cases – where there has already been prior disclosure of known HIV positive status.
On the other hand, the public interest also requires that the principle of personal autonomy in the context of adult non-violent sexual relationships should be maintained.
Accordingly, in such circumstances the issue either of informed consent, or honest belief in it will only rarely arise: in reality, in most cases, the contention would be wholly artificial.
However, Baker points out that R v. Brown is more borderline, as the harm in that case was reversible and is not too different from having unnecessary plastic surgery that is no longer benefiting the patient—that is numerous surgical procedures which are clearly having a disfiguring rather than beneficial cosmetic effect.
They were cheering on the boxers whose conduct was likely to and did produce a breach of the peace, so any mutual consent given by the fighters was vitiated by the public nature of the entertainment irrespective of the degree of injury caused or intended.
Even professional sport should have an element of fun while the players are, in the more extreme cases, given criminal as well as civil law protection (see R v Johnson (1986) 8 Cr App R (S) 343 and R v Lloyd (1989) CLR 513 dealing with injuries inflicted on the rugby field in "off the ball" incidents).