The law varies from state to state as to whether a person can consent to being assaulted. While some jurisdictions have definitions of assault that explicitly require lack of consent for the offence to be made out, others do not. The Northern Territory definition of assault requires lack of consent on the part of the complainant for the accused to be guilty of an offence.
There are a range of situations where consent can be run as a defence to a charge of unlawful assault. However, it is never possible for a person to legally consent to serious harm.
The definition of assault
Section 187 of the Criminal Code Act 1983 defines assault as:
The direct or indirect application of force to a person:
- without his consent; or
- with his consent if the consent is obtained by force, fraud, threat or fear of harm; or
The attempted or threatened application of force where the person attempting or threatening it has the ability to carry out the threat and demonstrates this by bodily movement or threatening words.
However, the code specifies that it is not assault to touch a person for the purpose of giving them medical treatment, within the rules of a sporting activity, or for the common intercourse of life.
The NT definition of assault means that the following acts are unlawful assaults:
- Punching someone
- Raising a fist as if to punch someone (if they think they are going to be punched)
The following are not assaults:
- Giving someone an injection
- Tackling someone during a football game
- Pushing past someone in a crowd.
Consent as a defence
Consent is most commonly argued as a defence in the context of a ‘consensual fight’. This defence arises when a person charged with assault claims that the assault was not a one-way attack, but rather they and the complaint were engaged in a fight. Where two people are mutually engaged in a fight, where they are roughly evenly matched and are exchanging blows that do not cause serious harm, this may be found to have been a fair fight. In other words, the assault was consensual.
Another situation where consent may be argued as a defence to what would otherwise be an unlawful assault, is in the context of consensual sex involving ‘S&M’ or bondage, where one party allows the other to hit or restrain the other. If consent has been clearly given in this scenario, the act may be found to have been consented to and therefore not to amount to unlawful assault. However, this is only the case where the harm inflicted falls short of serious harm.
R v Brown and Others
The 1993 UK case of R v Brown and Others established the principle that a person can never validly consent to be seriously harmed. In that case, the House of Lords considered the relevance of consent to charges of assault occasioning bodily harm and unlawful wounding.
The appellants in the case were gay men who willingly participated in sadomasochistic acts over a ten-year period. The acts included branding, genital torture, beating, bloodletting, the insertion of fishhooks through the penis and activities involving excrement. No permanent injuries were caused, the acts were committed in private, and evidence was heard that the participants had used code words to indicate when they could no longer bear the pain.
The House of Lords found that while consent is a valid defence to common assault, it cannot be a defence to the infliction of really serious injury. The judgment also discussed public interest reasons for not condoning such dangerous sexual practices and the infliction of injuries that would require medical treatment at the expense of the public.
Serious harm or harm?
Serious harm is defined in the NT Criminal Code Act as harm:
- That endangers or is likely to endanger a person’s life;
- That is likely to be significant or longstanding;
Examples of serious harm are a broken bone or third-degree burns.
Harm is defined in the Code as physical or mental harm, whether temporary or permanent, including unconsciousness, pain, disfigurement or infection with a disease (Section 1A).
Examples of harm are a cut or bruising.
The Brown decision has been criticised as an example of moral opprobrium interfering with the application of the law. It has been pointed out that individuals who inflict serious harm on themselves in other ways, such as excessive drinking or smoking or taking part in contact sports, are not criminalised and nor are those who facilitate these practices. However, most US states as well as all Australian jurisdictions have adopted the approach taken in Brown and found that a person cannot consent to serious harm.
If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.