Consent in Sexual Offences1
| Author | Graham Hughes |
| Published date | 01 November 1962 |
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02224.x |
| Date | 01 November 1962 |
CONSENT
IN
SEXUAL
OFFENCES
TEE law of torts deals primarily with compensation between
individuals. Aspects of deterrence may be present but the centrsl
issue in tort litigation is the propriety
of
granting compensatory
damages to
a
particular plaintiff against
a
particular defendant.
The justice of the plaintiff
’8
claim may be patently weakened by his
having consented to the infliction of the actual harm, or the issue
may be raised less clearly by his having voluntarily exposed himself
to
the
risk
of
the infliction of the harm. The defence of the plain-
tiif’s consent is thus plainly relevant in the law
of
torts and the
doctrine of
voEenti
non
fit
injuriu
has been worked out in some
detail.
In
the context of
a
criminal prosecution the relevance of the
consent
of
the injured party is not
so
immediately apparent. Here
the wrong to the immediate victim
is
seemingly absorbed in the
wrong to the community as
a
whole. The policy of creating
a
criminal offence in the case of the invasion of
an
individual interest
is
a
reoognition that such
an
invasion also attacks community
values and interests in
so
serious
a
fashion that the procedures and
sanctions
of
the criminal law
are
thought
to
be
fit
instruments
of
intervention. The individual with respect to the private law
of
compensation may consent to the infliction of harm
upon
himself
and
so
may lose his remedy, but he cannot be the attorney
of
the
community to relinquish the general privilege of society to punish
disruptive acts.
As
Lord Coleridge
C.J.
said in
R.
v.
Coney,
“
An
individual cannot by such consent destroy the right of the Crown
to protect the public and keep the peace.”
*
So
general
a
declaration, however, is unacceptable
as
a
statement
of
the policy issues involved. The invasion of
a
private interest
is
criminal only because
it
is
concurrently
a
threat to the public peace
or to public morals.
It
may
be
possible to
argue
that in some
circumstances the consent of the individual to what would have
been
an
unlawful invasion of his person,
if
done without
his
consent,
negatives the threat to the public interest and
so
ought to remove
the act from the scope of the criminal law.
If
the consent of the
victim is thought to deprive the act of its disrupting social effect,
then the act ought to lose its criminal character. This
is
the point
of
debate which ought to be the concern of legislatures and courts
in
determining the relevance of consent
in
the criminal law.
It may be helpful at the outset to offer
a
rough division
of
1
The present
author
has
written briefly on
this
topic before, in
103
L.J.
116
and
33
Can.B.&v.
88.
He
wiehee to thank the editors
of
these
journale
for
permin-
rion
to
reproduce in an amended
form
one
or
two
paragraphs.
Thin article
W8I
written and ecceyFed
for
publication before
t?
a pearence
of
Dr.
Williame’ article Consent
and
Public Policy
[lf62]
Crim.L.R.
74
and
164.
2
(1882)
8
Q.B.D.
634
at
667.
672
Nov.
1962
CONSENT IN SEXUAL OFFENCES
678
crimes into groups according to the possible relevance of consent
as
a
defence. Some crimes by definition do not contemplate any
specific human victim and
in
such crimes, therefore, the question of
consent cannot arise. Examples would be blasphemy or defrauding
the revenue authorities. Then there are offences where the pro-
hibited act may indeed impinge especially on individual members
of the public but where the harm envisaged clearly involves a threat
to public security or convenience generally. Such a crime would
be
a public nuisance or riot. Here the consent of individuals who may
have been obstructed or put in fear is irrelevant, since the essence
of the crime is its publicness, that is its likelihood of impinging
an
the public in general. Thirdly, there is a group of crimes which
are, by definition, concerned with an individual victim, such as
rape, murder, and batteries. Of this last group of crimes, some by
definition require a lack of consent
in
the victim before the
actus
reus
of the crime may be said to have been committed. Such a
crime would be rape, in the English understanding of
it.
Such
crimes are of
no
concern here, since consent is an express defence.
Again there are in this group offences where consent is just as clearly
not
a
defence. Examples would be sodomy and unlawful sexual
intercourse with a girl under the age of sixteen. Such crimes
are
not altogether free from diaculty, since, although
it
may be clear
that the consent of the passive participant
is
no
defence when the
active agent is charged, the question may remain whether the
passive participant
is
himself guilty
of
the offence
as
aider and
abettor. And we are left in this third category with a residual group
of
offences where the applicability of consent as
a
defence is far
from clear. Assaults occasioning some bodily harm particularly of
the indecent or sado-masochistic variety fall to be considered here,
and the law with respect to surgical operations is also by
no
means
certain.
Such
a
classification is not of course ultimately instructive,
since the important debate
will
usually be
on
whether consent ought
or ought not to be admitted
as
a
defence
in
particular
circum-
stances.s This article will
~~BCUSS
some consent problems
in
sexual
offences and
in
assaults of
a
sexual nature.
A~~AULT~
GENERALLY
It
is generally accepted that
at
common law consent
is
no
defence
to a battery which amounts to a mayhem, and
a
fortiori
no
defence
to
a
homicide.' The provision in the Homicide Act
of
1957
on
8
A
similar classification may be found in Perkins,
Criminal
Law
(1967) 853.
Perkins' book contains
a
good
general treatment of consent. Other
general
discassions
are
Beale,
"
Consent
in
the Criminal Law,"
8
Harv.L.Rev. 317:
Puttkamer,
"
Consent
in
Rape,"
19 111.L.Rev. 410; Puttkamer,
"
Consent
in
Criminal
Assault."
19 1Il.L.Rev. 617.
4
Wright's
case,
Co.Litt. 1278 (1604)
I
H8wk.P.C. 108;
3
Stephen,
History
of
the Criminal
Law.
p. 104: Miller, Criminal Law (19.74). p. 173; Perkins,
Criminal
Law
(1967).
p.
863.
duelling
are
R.
v.
Young
(1898)
8
C.
&
P.
644;
R.
v.
Cuddy
(1843) 1
C.
6
d.
310.
Cases
on
causing death b
VOL.
26
24
674
TEE
YODEBN
LAW REVIEW
VOL.
25
suicide pacts covers the case of one party to the pact killing the
other, but, since the requirement of the settled intention of dying
under the pact is insisted
on,
it does not operate as a general
exception to the rule.
When the harm infiicted by an assault is less than a mayhem or
where there is
no
measurable physical harm at all, the position
in
English law, and indeed in
common
law jurisdictions generally, is
less sharply defhed.
In
Christopherson
v.
Bare,
Patteson
J.
said:
“
An
assault must
be
an act done against the
will
of the party
assaulted: and therefore
it
cannot be said that a party has been
assaulted by
his
own permission.” The South Dakota decision
in
State
v.
Archer
quotes
Bishop on Criminal
Lcrw:
‘(
One who
assaults or whips another at his request or with his consent does
any other act which under
ordinary
circumstances would amount
to an indictable battery commits
no
crime.”
In
Smith
v.
State
the
court
said:
An
assault
.
.
.
upon a consenting party would
seem to
be
a legal absurdity.”’ English courts, however, have
been quite ready to convict of assault in some circumstances even
in the face of consent, especially in the line of cases
on
prize fights.
A
delicate distinction has had to
be
drawn here between permissible
boxing matches and brutal contests which are to be declared illegal.
The matter was well put by
Sir
Michael Foster. Speaking of the
sporta of cudgelling and wrestling, he wrote:
“
Here is indeed the appearance of a combat, but
it
is in
reality
no
more than a friendly exertion of strength and
dexterity.
.
. .
They are manly diversions, they tend to give
strength,
skill
and activity and may
fit
people for defence.
.
.
.
I
would not
be
understood
to
speak
of
prize fights
.
.
.
which
are exhibited for lucre and
can
serve
no
valuable purpose,
but
on
the contrary encourage a spirit of idleness and
debauchery.,’
(I
So
in
Perkins
the accused were indicted for riot and assault for
taking part in a prize fight.
In
his summing up Patteson
J.
said:
“
It
is
proved that all the defendants were assisting
in
this breach
of the peace; and there is
no
doubt that persons who are present
on
such an occasion, and taking any part in the matter, are all
equally guilty as principals.”O
In
Orton
the chairman directed
the
jury
that
if
the encounter was
a
mere exhibition
of
skill
in
sparring
it
was
no
offence in law, but
if
the combatants intended
5
(1848)
11
Q.B.
478
at
477.
29
South Dekota
187; 116
N.W.
1076
at
1076
citing
I
Bishop,
Criminal
r.
1
fi-ohio
Bt.
466,
80
Am.Dec.
865.
8
Crown
Law
969. In
R.
v.
Young
(1866) 10 Cox C.C.
371
it
We8
held that
8
sperring
match
was
lawful
if
there
we8
no likelihood
of
serious
bodily harm.
9
(1831)
4
C.
k
P.
687.
The
jury
we8 evidently troubled at the prospect
of
con-
victing
of
armult thore
of
tb~eccuacd
who
had been mere sp&atbre end. in
spite
of
the
judge’s plein direction, acquitted them
on
this
count. See, too,
Matthero
V.
Olfcrton
(1692)
Comb. 218
(”
Licence
to
beet me
is
void, because
‘tin egeinit the peace
‘I).
Nor.
I962
CONSENT
IN
SEXUAL
OFFENCES
675
to fight
until
one gave up from exhaustion it was
a
criminal offence.
This direction was approved by the Court for Crown
Cases
Reserved.lo The charge in
orton’s
case was
of
unlawful assembly
but it is presumably a fair deduction that a charge
of
assault would
have lain. This view
of
the law crystallised and received its most
authoritative expression in
Coney,
a case reserved by quarter
sessions for the Court for Crown Cases Reserved. There the pro-
ceedings again arose out
of
a
prize fight and the charge this time
was one
of
assault. The judgment of Hawkins
J.
is
particularly
instructive
:
“
The defendant’s counsel contended that, each
of
the
combatants having assented to the fight, neither could be
convicted
of
an assault upon the other. To this contention
I
cannot give my sanction.
. .
.
Whatever may be the effect
of
a
consent in
a
suit between party and party,
it
is not in the
power
of
any
man
to
give an effectual consent to that which
amounts to, or has a direct tendency
to
create, a breach of the
peace.
. . .
Nothing can
be
clearer to my mind
than
that every
fight in which the object and intent
of
each
of
the combatants
is to subdue the other by violent blows
is,
or has
a
direct
The judgments in this case in the
Court
for
Crown Cases
Reserved rest the finding
of
criminal
assault equally
on
the
groundr
of
the tendency
to
a
breach
of
the
peace
and the tendency
to
cause
bodily harm
to
the participants.
So,
Cave
J.
said:
“
The
true
view
is,
I
think,
that
a
blow struck in anger, or which is likely
or
is
intended
to
do
corporal hurt,
is
an assault, but that
a
blow
~trueL
in
sport,
and not likely, nor intended to cause bodily harm,
is
not
an
assault.
. .
.
”
And Mathew
J.:
“
There
is,
however,
abun-
dant authority for saying that
no
consent can render that innocent
which
is
in fact dangerous.”
l*
This
criterion
for
the availability
of the defence
of
consent seems now
to
have gained wide acceptance
in
common
law jurisdictions. Beale, writing
in
1895
in one
of
the
few general treatments
of
consent in
common
law
literature,
summed up the position:
‘(
In
cases of actual personal injury,
whether homicide, mayhem or battery, consent of the injured party
is
no
excuse
to
the wrongdoer
it
the
act
consented
to
tends
to
a
breach
of
the peace or to severe bodily harm, or
to
a loss
of
chastity
which
is
not consented to.”
l4
An
identical position appears
to
be
accepted in modem American
law.15
In
M)
far
then
as
the
com-
mon law has developed any general doctrine of consent
as
a
defence
10
(1878)
14
Cox C.C.
928.
The accused were convicted, even though the fighters
had worn gloves, there being sufecient other evidence of the
EenOUs
and
11
;&$?&.I).
534
at
663.
A
Canadian decision holding that consent
is
no
defence to
a
charge
of
8S88Ult
where
there
has
been
a
breach
of
the
we
is
R.
v.
Buchanan
(1898)
19
Man.L.R.
190;
16
E.E.D.
999.
12
At
539.
18
At
547.
14
“Conaent in the Criminal Law.”
8
Harv.L.Rev.
317
at
897.
15
See
Perkins,
Criminal
Law
(1817),
p.
863.
tendency to, a breach
of
the peace.
.
.
.
99
11
nature
of
the oombat.
676
THE
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REVIEW
VOL
!a6
it
is
one extracted from decisions
on
prize fights, duels and sparring
matches. The question to be asked is whether this limitation
of
the defence of consent by the boundaries
of
breach of the peace and
bodily harm is a sdciently subtle expression of public policy in
other fields.
SEXUAL
OFFENCES
The relevance
of
consent here is first, as always,
to
the liability of
the actor or agent.
Does
the consent
of
the victim, or pathic,
exonerate the agent? But, secondly, in this area we are especially
confronted too with the position of the consenting victim. Does
his
or
her consensual participation amount in itself to a criminal
offence, usually of course to aiding and abetting the principal
offence
of
the agent
?
At
common
law,
in
the absence of bodily harm or a breach of
the peace, the consent
of
the victim always negatived the assault
element of a sexual offence,
so
that in the absence of a specific
offence of which assault was not a necessary ingredient and in the
absence of a statute expressly negativing consent as a defence,
consent would always provide a good answer.
This
was
so
even in
the case of very young children, as in
Meredith
Id
where the subject
wan a girl of ten. The matter was put plainly by Hawkins
J.
in
Coney:
“
The cases of alleged indecent assaults
on
young children
by their consent
.
.
.
may all be disposed of in this one observation,
viz.,
that the indecent impositions of hands charged
in
those cases
as assaults neither involved, nor were calculated to involve,
breaches of the peace, and, therefore, being by consent, were not
punishable as assaults, any more than they would have been had
the objects of them been for the most innocent purposes.”
lT
Here
already then, in
Coney
itself, the very case which purported to lay
down
a
rubric for testing the availability
of
consent as a defence,
that rubric
is
found wanting by admission in cases
of
indecent acts
with young children. Statutory intervention was inevitable and
by the Criminal Law Amendment Act
of
1880,
section
2,
it
was
provided that
it
should be
no
defence to a charge of indecent assault
on
a
child under the age of thirteen to prove that the child con-
sented to the act
of
indecency. By the Criminal Law Amendment
Act of
1922
the age
of
consent was raised to sixteen. The governing
enactment
is
now section
14
of
the Sexual Offences Act,
1956,
which
has made a perhaps significant change in wording. After creating
the offence of indecent assaults
on
women,
it
goes
on:
‘‘
A
girl
under the age of sixteen cannot in law give any consent which would
prevent an act being an assault for the purposes of this section.”
Section
15
makes identical provisions for indecent assaults
on
men
18
(1838)
8
C.
it
P.
589.
See,
too,
R.
v.
Martin
(1839) 9
C.
&
P.
213;
R.
r.
Read
(1849) 3
Cox
C.C.
266;
R.
v.
Mehegan
(1866)
7
Cox
C.C.
146;
R.
V.
Johruon
(1866)
10
Cox
C.C.
114.
17
(1882)
8
Q.B.D.
634
at
854468.
Nov.
1962
CONSENT
IN
SEXUAL
OFFENCES
677
and boys.ls Similarly in a series of enactments of which the govern-
ing ones are now sections
5
and
6
of the Sexual Offences Act,
1956,
it was made an offence to have unlawful sexual intercourse
(formerly known as unlawful carnal knowledge) with a girl under
sixteen. The bodily harm and breach of the peace tests being
utterly irrelevant in this context, the expression
of
public policy
is
secured by the piecemeal intervention of statute. The dangers
of such an approach
are
that marginal problems may arise, not
expressly provided for by statute, which must then be solved in a
mechanical fashion
in
the absence of any general declaration of
policy in this ares. These problems become apparent when we
consider the position of the party consenting to the prohibited act.
In a number of instances it is perfectly clear that the consenting
party commits an offence,
e.g.,
sodomy between adults, incest
between adults, gross indecency between adult males. In some of
these cases we may of course quarrel with the expressed policy of
the law, but at least its expression is beyond doubt. But what
is
the position where at common law the consent of the one party
would have been
a
defence
to
the other, but where this defence has
been removed by statute in the interests
of
the victim
?
An
offence
having been created with respect to the agent in spite of the other
party’s consent, can it be said that the other party in giving consent
becomes guilty of the offence as aider and abettor
?
Obviously the
wording of the relevant enactment must first be carefully
scrutinised.
If
we compare
on
the one hand statutory language
in
the case of the offences
of
buggery,
gross
indecency between males,
and incest with,
on
the other hand, the statutory language
in
the
offence of indecent assault the contrast is plain. In the first
group
we find the statute speaking of
‘‘
to commit
an
act of gross inde-
cency
with
another man,”
l9
‘‘
to commit buggery
with
another
person
”
2o
and, for incest in the case of a man,
“
to
have
sexual
intercourse
with.
.
. .
”21
In the case of incest by a woman the
18
The earlier enactments linked consent specifically with the
‘I
act
of
indecency.”
This made possible the argument that,
if
the assault
was
severable from the
indecent act (which if passive would not in itself amount to an assault,
Foidough
V.
Whipp
(1961)
%
Cr.App.R.
138)
and
if
the aaseult
was
con-
sented to, the prosecution must fail.
This
is
thought to have amtributed
lo
the controveraal decision
of
the Divisional Court in
D.P.P.
v.
Rogers
(1953)
37
Cr.App.R.
137
where
8
father. who,
with
the intention
of
engaging
in
indecent wtivities, had put his arm around
his
young daughter
to
lead
her
upstairs,
was
acquitted of indecent as8,~ult. A valuable discussion of these
CBR~R
and allied problems
is
Meckesy, The
Criminal
Law and the Woman
Seducer
”
[1966]
Crim.L.R.
446,
699
and
798.
This
difficulty may now have
been removed
by
the altered wording introduced by the Sexual Offences Act.
1956.
but until recently there remained the much criticised pap in the
law
that
it wa8 no offence to perform 8n indecent 8ct in the presence
of
children
or
to
procure
8
child to perform an indecent act on
one’s
person.
See
Williams
v.
Cibbs
(1968)
Crim.C.
&
C.
1%
and the
First
Report
of
thr
Criminal
Lato
Reoision
Cornmittre
(Indrcency
with
Children)
Cmnd.
836.
This is
now
rectified by the Indecency with Children Act,
1960.
10
s.
13,
Sexual Offences Act,
1956
(italics added).
20
8.
la
(l),
Sexual
Offencas Act,
1966
(itulics added).
21
a.
10
(l),
Sexual Offences Act,
1966
(italics added).
678
TEE
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VOL.
!a
statute makes the matter quite clear by providing:
"
It
is
an
offence for
a
woman of the age of sixteen or over to permit a man
.
.
.
to
have sexual intercourse with her by consent."
aa
This statu-
tory language clearly seems
to
contemplate the creation of an
offence between two consenting parties who shall be equally
culpable. Quite a contrary intention would seem to be apparent
in the denial of consent
as
a defence
in
the cases of indecent assault
on
girls and boys under the age of sixteen. The statute here speaks
of indecent assault
on
women and men.
In
going
on
to provide
that the consent of boys and girls under sixteen shall be
no
consent
on
such a charge
it
is, thmefore, reasonable to conclude that here,
where both parties were previously non-culpable, the intention
is
to create
an
offence with respect to the one but not the other.
But the position is less simple
in
the offence of unlawful sexual
intercowbe with girls under sixteen. Here the statutory language
is
identical with that in the offences of gross indecency, buggery and
incest, and
it
is,
therefore, q-uite possible to put up
a
plausible
argument that the young
girl
m
these cases can be regarded
as
an
aider and abettor. This indeed was strongly argued for the prose-
cution
in
Tyrrell,ss
where
a
girl
under sixteen
was
convicted by the
trial
court
of
aiding
and abetting a man to have unlawful carnal
knowledge of her (as the crime then was) under section
5
of the
Criminal
Law
Amendment Act,
1886.
But the Court for Crown
Cases Reseroed upset the conviction
on
the ground that the statute
was
designed for the protection of young girls and was not meant
to
implicate them criminally.
It
is perhaps beyond much doubt
that
the
Court
for Crown Cases Reserved was here correctly inter-
preting the intention of the legislature.
It
does not of course follow
that such a legislative policy is itself beyond doubt.
It
has beeu
vigorously argued that when
a
girl is over the age of fourteen
it
should be
a
defence to a man charged with unlawful sexual inter-
course
with her to show that the girl understood the nature and
implications
of
the sexual act and consented.24 This argument goes
to the culpability of the man; but, accepting the policy for the sake
of argument of holding the man culpable in all circumstances, we
may adapt the argument and suggest that the general deterrent
policy of the law might be better served by regarding the girl
as
an
accomElice in
a
mutually unlawful act
of
sexual intercourse, when
she consented with understanding of the nature
and
implications
of the act. This argument
can
perhaps be slightly strengthened by
a
semantic point. The English variety of this offence has always
22
!.
11
(l),
Bexpal Offences
Act,
1966.
Rome American ststen
holds
that incest
IB
only
committed where there
is
consent.
If
force
is
used,
rape
ie
the only
ap ropriate charge.
28
&4]
1
Q.B.
710.
It
is
proper to convict
of
this offence even
if
the
girl
did
not consent,
R.
v.
Ncole
(1844)
1
Den.
86.
24 Note,
*'
Forcible and Statutory Rape
and
the Coneent Standard,"
62
Yale
L.J.
66.
80.
But
the Department81 Committee
on
Sexual Offences agsinet Young
Pernons
(1925)
Cmd.
2661
reported
in
favour
of
raising the age
of
consent for
femalee
from
sixteen to seventeen.
See Miller,
Criminal
Low
(1884).
p.
436.
Nov.
1982
CONSENT
IN
SEXUAL
OFFENCES
679
been known as unlawful carnal knowledge
or
unlawful sexual inter-
course, thus marking
it
off clearly from the offence of rape, unlike
most American jurisdictions where it is commonly known as statu-
tory rape. This is a sensible recognition of the alleviating presence
of consent here, which,
in
some circumstances, may make the girl
at least equally culpable. The merit of this choice of language
is
perhaps vitiated by the fact than an indecent assault is still known
as an assault even though
it
may be done with the eager collabors-
tion of a fifteen-year-old girl. Here, with indecent assaults, the
age limit of sixteen can in some cases appear absurdly high and the
law ought to be put
on
a rational basis, either by making the girl’s
appreciation of the nature
of
the act a defence to the man or a
ground for her conviction. The latter step, though rational in its
distribution
of
culpability, would prove ludicrous
if
strictly enforced
which supports the view that the wiser step, both with unlawful
sexual intercourse and with indecent assaults, would
be
to make the
understanding consent of a girl over fourteen a defence to the man
charged.
The form in which the question of the consenting person’s culpa-
bility has most often come before the courts has been
in
connection
with corroboration.
In
Jellyman,
where tbe husband was charged
with committing buggery
on
his
wife, Patteson
J.
said
:
“
There was
a case of this kind which
I
had the misfortune to
try,
and
it
there
appeared that the wife consented.
If
that had been
so
here, the
prisoner must have been acquitted; for althougb consent or
non-
consent
is
not material to the offence, yet, as the wife,
if
she
consented, would be an accomplice, she would require confirma-
tion.
.
.
.”
In
this way consent, although denied expressly as a
defence, often achieves such a statue indirectly.
In
Jellyman
itself,
although the wife claimed to have resisted, the husband was
acquitted. Difficulty has been encountered when the consenting
pathic has been a young boy.
In
Tate
28
a
boy
pathic
of
sixteen
was held to be an accomplice to sodomy
80
that corroboration was
necessary when the adult offender was charged.
In
CratchIey
a7
the
accused was charged with assault with intent to commit sodomy
(now
an offence under section
16,
Sexual Odtences Act,
1956).
It
was alleged that he had committed the offence with a boy
of
thirteen
while a boy of ten was told to keep watch. The argument turned
on
whether the boys were to be regarded as accomplices
so
that
corroboration would
be
necessary.
It
was agreed by the defence
that a boy under fourteen could not be convicted of active sodomy
because of the general presumption that a buy of this age is in-
capable of a sexual offence involving active intercourse,2B but it was
25
(18%)
8
C.
&
P.
604.
20
jiwj
2
K.B.-w:
(1908)
1
Cr.App.R.
99.
27
(1918)
9
Cr.A
p.R.
9.3339.
28
See
R.
v.
Ellerahaw
(lam)
3
C.
&
P.
996:
“
This
boy being under
fourteen,
ilty
of
a
rape,
except
a~
s
principal
in
the
he cannot. by
lea.
be
found
second degree
”
(per
Vaughan
El.
680
THE
MODERN
IAW
REVIEW
VOL.
26
argued
that he could be an accessory and also an aider and abettor
if
he had passively consented and if the necessary mischievous
intent could be shown. The prosecution submitted that a boy
under fourteen could not be indicted for sodomy
at
all.
In
the
judgment of the Court of Criminal Appeal it was held that the boy
who kept
a
lookout could have been an accomplice but that
on
the
facts he was not, since there was
no
guilty knowledge
or
mischievous
intent. There
is
no
discussion
in
the judgment of the position of
the pathic and, since the argument centred
on
the sexual incapacity
of
boys under fourteen, the case
is
not helpful
on
the general prob-
lem of consent. But the issue seems to have been clarified
in
Tatam
29
where the accused was convicted
of
sodomy with boys
some of whom were over fourteen and some under. The Court of
Criminal
Appeal held that boys under the age of fourteen could
not be convicted as accomplices to sodomy in the role of consenting
pathics, but that a consenting boy over the age
of
fourteen could be.
Once
again
it
must be borne
in
mind that the decision, although
clear cut, was given in the context of the corroboration issue.s0
On
the authority of
Tatam
it
now
appears that a boy between
the ages of fourteen and sixteen can be convicted of the very serious
offence of sodomy as an accomplice when he is a consenting pathic.
This
is
very hard
to
reconcile with the rule that a
girl
under the
age of sixteen
is
not guilty of any crime when consenting to sexual
intercourse which
will
be criminal for the male partner, even though
she may have been the active instigator. And can a boy under
sixteen be convicted of committing an act of gross indecency with
another man?
Mr.
Turner, in
his
edition of
Russell,
takes the
view that under the principle of
Tyrrell,
there could be
no
con-
viction here.a2 But this view implies the application
to
the offence
of
gross
indecency between men of a principle drawn from the
offence of unlawful sexual intercourse with girls, a transference
which can
be
by
no
means certain. Again, can
a
girl under sixteen
who consents to
an
act of sodomy being committed upon her be
convicted as
an
accomplice
?
There appears to be
no
express autho-
rity
on
this and the solution is very arg~able.~~ Can the offence of
unlawful sexual intercourse include an act of sodomy?
If
it can,
then the legal position of the girl ought not to depend
on
the form
of the charge and she should be immune from liability when
con-
senting
to
sodomy, applying the principle in
Tyrrell.
But it is
submitted that the better view is that unlawful sexual intercourse
29
(1921)
15
Cr.App.R.
132.
a0
With respect to the
law
of
ECI~?~
in the United States, Perkins,
Crhinal
Law
(1957),
pp.
334436,
wntes:
&
the act is committed
on
a
very
young
boy
only the older person
in
guilty and the child
is
not
au
accomplice," but the
casr~
cited
are
ones
in
which the boy
was,
respectively,
12, 10
and
7
years
old.
31
8.
46,
Sexual Offences Act,
1966,
provides that
'I
man
*'
includes
"
boy."
32
1
RUERC~~,
Crime
(1958),
p.
142.
33
Stephen,
Digest
of
the.
Criminal
Law,
Art.
240,
took the view that both
boys
and
girls
between
14
and
16
could be convicted
81
accomplices
to
sodomy.
Nov.
1962
CONSENT IN SEXUAL OFFENCES
681
does not include
an
act of sodomy,s4 in which case the formal argu-
ments would be in favour of admitting the possibility of convicting
the consenting girl
on
the charge of sodomy itself.
Mr.
Turner’s view is that
“
there is nothing in the statutes
dealing with sodomy to show that they were enacted to save
young
people from themselves,
so
as
to bring this case
[i.e.,
Tatam]
within
the principle applied to cases of consent by females of tender years.”
He goes
on
to comment that
“
the matter is
not
perhaps of great
practical importance since the desirability of corroboration can be
treated as arising from the fact that the case is
a
sexual one, and
as
such the evidence of
a
male person of tender years should be
received with caution apart from any rule of law.”
s5
With respect,
it
is not wise to conclude that the only relevance
of this issue will be in connection with corroboration. Though
it
may be extremely unlikely that
a
prosecution would ever be brought
against a boy or girl under sixteen who had consented to domy,
yet
it
is
not
so
unthinkable
as
to be unworthy of examination.
Apart from this practical possibility, the anomalies in the present
law reveal
a
basic neglect of the policy questions relevant
on
the
issue of consent.
It
may be that the statutory offence of
unlawful
sexual intercourse with girls under sixteen
was
created with the
express policy of protecting young girls against themselves
as
well
as
against men and that
no
such express policy can be located
in
the older and more general offence of sodomy. But this should not
deter
an
attempt to examine the present criminal law in the light of
rational considerations. We have seen that with the offence of
unlawful sexual intercourse with
a
girl under sixteen the culpability
of the parties may
vary
enormously, and
it
has been suggested that
this should in some measure be recognised either by admitting
as
a
defence to the
man
that a
girl
over fourteen consented when appre-
ciating the nature and implications of the act or by making this
a
ground for the conviction of the girl. Is there any good reason
for adopting
a
different test in the case of sodomy?
Can
a
girl
or
boy over the age of criminal responsibility but under the age of
sixteen give that full and understanding consent
to
an act of sodomy
being committed upon her or him that can in some circumstances
be given by
a
girl of that age to
a
normal act
of
sexual intercourse?
84
The old
cases
on
rape
are
not very
helpful
on
this
point, although one
does
sometimes find Ianguege broad enough
to
cover unnatural intercourse,
e.g..
“
The only question
.
.
.
is
ah$her
the
nvste
art8
of
the man did
enter
into
the
R.
V.
Illen
(lh)
9
C.
k
P.
31
et
$4.
Stephen,
Egert
of
the
Criminal
Law,
Art.
360,
defines
csmal
knowledge
as
“
the penetretion to
any
the slightest degree
of
the organ elleged to have been
carnally
known
by the
male
organ
of
generetion.” This is
repeeted
in
S.
1.
First Schedule, Tesmanian
Criminal
Code
Act,
19’24.
The
English statutcs
do not help on the point,
8.
44
of
the
Sexuel
Offences
Act,
1966,
merely
providing that
“
where . . .
it is
UWO~E~~
to
prove
sexual intercourse (whether
natural
or
unnatural), it
shall
not be necessary
to
prove the completion
of
the
intercourse by
the
emission
of
seed
. .
.”
rson
of
the
woman,
86
1
Russell,
Crime
(lQM),
p.
143.
682
TEE
LlODEBN
LAW
REVIEW
VOL.
911
Whatever the answer
to
this
may
be,
the present law
ie
surely at
fault in assuming that such a consent is always an understanding
one, which is the conclusion implicit in the present rule that such
a
young person can be convicted as an accomplice. Acquiescing for
the moment
in
thc policy of continuing a general crime
of
sodomy,
the best solution,
it
is
submitted, would be, as with the offence
of
unlawful .sexual intercourse, to provide that generally
no
girl
or
boy
under the age
of
sixteen should
be
liable to conviction
for
sodomy
as
a consenting pathictr but that where the prosecution can prove
that the young person understood the nature and implications
of
the
act and freely consented
a
conviction would be proper.
It
may
well
be
that with the unnatural act of sodomy
this
burden might
be
harder for the prosecution to discharge than
in
the case of
normal
sexual
intercourse with a
girl
under the age
of
sixteen, but there
would seem
to
be
no
powerful considerations arguing in favour of
any general distinction.
If
any general distinction at all is defend
ble it would surely be the complete exemption from prosecution
of
persons
under sirteen wbo are consenting pathics
in
sodomy, and
the present
law
quite
reverses
this. The present anomalies are
clearly due to the accident
of
sodomy being a general and ancient
offence, while the offence
of
unlawful sexual intercourse
is
restricted
in
its
scope
to
young girle and is
of
comparatively recent statutory
S~Bhsomxemc
Acrrv~~~e
Although
it
is
now
a
long time since Krafft-Ebing’s works were
publinhed, there
is
a
remarkable dearth
of
authority
on
the avail-
ability
of
consent as a defence when a charge
d
assault
or
indecent
amsult
is
based
on
sado-masochistic activity.
In
England there
is
the
one central decision
of
Donovan
which is always cited as
a
general
authority
on
the limits
of
the defence of consent to assault.
In
that
case
the accused had taken a seventeen-yeawld
girl
to
his
garage
and, for purposes
of
perverted
sexual gratitication, had
then beaten her
with
a
cane, There was a
good
deal
of
evidence
that the
girl
had throughout
been
aware of
his
intention and had
consented.
No
serious
injury
was
suilued
but
a
doctor who
had
examined the
girl
two days after the beating testified that there
were nome
red
marks
on
her body and that
in
his opinion she had
suilered
a
cc
fairly severe beating.” The accused was charged with
common
assault and indecent assault.
At
the trial at quarter
seasions the Chairman had throughout assumed that consent would
Origin.
86
The
propoaitian
to
the
contrery
in
Totom
would not
be
dSbult
to
overrule.
The
pdgmsnt
of
the Court
of
Criminel Appeal in thet
CIIO
is
very
brief end
the point
et
isrue
wu
not the oonvktion
of
the
boy
but
corrobtption.
The
only
p88Mge
in
the ‘udgment which
is
relevant
ir
the followin
:
In the
cam
of
the eldest
boy,
who
was over
fourteen.
there
wen
mme evi%n-not much
-that
he
wen
en
eccompliw .
.
.
,”
16
Cr.App.R.
182.
The porsible liability
of
the
boy
ir clwrly rrmmed but
not
K)
euthontetively
ar
to
be
beyond
further
discusdon.
87
ci~sq
a
K.B.
498.
Nov.
l9Sa
CONSENT
IN
SEXUAL
OFFENCES
688
be a
good
defence but had not made it clear
to
the jury in
hb
direction tbat the burden
of
negativing consent was
on
the prowcn-
tion.
The accused was convicted and the Court
of
Criminal
Appeal felt compelled to quash this conviction
on
the ground that
the whole trial had proceeded
on
the assumption
that
consent would
be a
good
defence and that
no
adequate direction
on
the burden
of
proof had been given.
Counsel
for
the prosecution argued both
before
the
trial
court
and the Court of Criminal Appeal that
it
was unnecessary
to
show
lack
of
consent to convict the accused, and the Court
of
Criminal
Appeal therefore felt obliged to discuss generally the availability
of
consent as a defence in such cases. Citing and relying largely
on
the judgments in
Coney
the court laid
it
down that consent
is
only
a
defence in such cases when bodily harm is not a probable
come+
quence
of
the acts done:* and went
on
to say:
"
For
this
p~ypose
we think that
'
bodily harm
'
has its ordinary meaning and includes
any hurt
or
injury calculated
to
interfere with the health or
comfart
of
the prosecutor. Such hurt or injury
need
not
be
pernaanent,
but
must,
no
doubt,
be
more than merely transient and
The
court
was not willing
to
let the conviction stand, dnce they
were not prepared
to
say that,
if
a proper
direction
on
these
lines
had been given
to
the jury, an acquittal would have
been
unreason-
able. But the court's
own
view
of
the facts
of
the
case
emergea
clearly in
a
passage which deserves
to
be
quoted for the light which
it throws
on
the possible attitude
of
English
courts
to
do-
masochistic practices.
"
It
may well
be
that,
if
the first question had
been
left
to
the jury, they would have answered
it
by saying that the appel-
lant intended to cause and infiicted blows likely
to
cause bodily
harm to the prosecutrix.
.
. .
But, although we thinlr
it
prob-
able that
tbb
would have
been
the jury's view,
it
is,
in
our
opinion, impossible
to
say that they muat inevitably have
80
found. There are many gradations between
a
slight tap and a
severe blow, and the question whether particular blows were
like1
or
intended to cause bodily harm is one eminently fitted
We may have little doubt what the
decision
would have
been
in this case.
.
.
.
In
the Southern Rhodesian case
of
McCoy4'
the accd, the
manager
of
an airline company, caned a hostess for a breach
nf
for
t
E
e decision of a jury upon evidence which they have heard.
99
40
88
At
607.
89
At
609.
40
At
610.
Tbe
court made it clear that the motive
of
the partien may
be
material.
A
greater degree of
harm
my
be
wn~nted
to
in
a
"
manly divemion
"
than
in
a
cese
likq
Donowan,
where "it
wan
not
in
diepute that the motive of
the
appellant was
to
gratify
hin
own
pervertad
dednn"
(at
aOe).
The
case
in
discuseed
by Qlanville Williams.
"
Consent
and
Public Policy
"
[188a]
Crim.
L.R.
164.
41
[1963]
9
S.A.
4
(Southern Rhodenia);
16
E.E.D.
M.
684
THE
MODERN
LAW
REVIEW
VOL.
!26
regulations. She was an immigrant
on
probation, was in financial
difliculties and consequently would have been placed in a very
di5icult position by losing her job. She consented to being caned
when this was offered as an alternative to her being grounded, which
would have meant loss of pay and perhaps eventual dismissal. The
beating consisted of
six
cuts with a light cane but was administered
in degrading and humiliating circumstances. The accused was
convicted of assault and his appeal dismissed, the court holding that
the prosecution had proved the infliction of bodily harm and the
accused’~ intention to intlict
it.
But this finding is not vital to the
decision since the court
also
found that the woman had not freely
consented.
A
significant point in the present context is that the
whole tone of the judgment indicates that the court was much
influenced in its finding of an intention to cause bodily harm by the
degrading circumstances of the caning.
In
the Illinois case of
Cohoon
4a
the defendant was a sixty-two-
yeardld farmer with a twenty-one-year-old wife. She had con-
fessed indiscretions with other men. She suggested one day that
her husband should go to town for provisions but he objected that
if
he did she might run away. She then said that,
if
he thought
this, he should chain her up while he was away. The accused
testi5ed that he objected
to
this proposal but that she insisted,
whereon he put one chain around her neck and, at her further
insistence, another around her leg. He then went to market but,
while there, was arrested for another offence
and
had to tell the
police
of
his
wife’s condition
so
that they might
go
to extricate her.
He was charged with false imprisonment and convicted by the trial
court,
but the conviction was quashed by the appeal court on the
pund of consent, the court commenting:
“
In
the light of her
confessed
indiscretions with other men, she may have been moti-
vated by some queer obsession of self martyrdom, in requesting that
she be tied up.”
48
There is
no
discussion in the judgment of the
limits of consent as a defence in such a context.
This field of consensual sado-masochistic activity is one where,
it
~IJ
submitted, the law must tread with more than usual caution.
The pleasure-pain syndrome is
so
characteristic
of
ordinary love-
making that the boundary across which such activity becomes
ti
perversion is not easy to draw. Fortunately there is of course
no
need for the courts to draw any hard line here between normal and
perverted sexual acts. The question of criminal liability
is
not this
question. But the danger is perhaps that the one judgment may
impinge upon the other, that an inarticulate judgment that the
defendant’s conduct is unnatural or disgusting may encourage an
express judgment that it
is
criminal. This may be
so
especially
where, as
in
Donovan,
the conduct involved is of a stylised kind,
42
315
I11.App.
259;
42
N.E.
(2d) 969 (1942).
4a
42
N.E.
(2d)
at
971.
Nov.
1982
CONSENT
IN
SEXUAL
OFFENCES
685
unaccompanied by more usual demonstrations of affection, and
therefore more plainly appears unnatural. The bodily harm
test
is
a sensible one though
it
may
be
suggested that the limits of the test
are not made very clear in
Donovan
itself.
It
must
be
calculated
to interfere with health
or
comfort; it need not be permanent but
must be more than merely transient and trilling. The vital words,
c‘
more than merely transient and trifling
”
are capable of a wide
range of interpretation.
If
they should be interpreted
so
as
to
convict an accused in the circumstances of
Donovan’s
case
(as,
it
will be remembered, the Court of Criminal Appeal strongly suggested
would have been proper) then
it
is submitted that the test
is
too
harsh against the defendant.
It
must be remembered that sado-
masochistic consensual practices may take place in a variety of
circumstances where the nature of the consent subtly differs. We
may have, for example, the true meeting of minds where both
parties derive peculiar pleasure from their respective roles. Then
there may be the case of the disinterested
or
reluctant aggressor who
plays his
or
her role to please the masochistic partner who derives
pleasure therefrom. Conversely there may be the case of the
reluctant partner who submits out of a desire to please but who
derives
no
pleasure from and indeed may dislike the proceedings.
And there may be the case of
a
consent purchased for money. It
might be thought that the reluctant aggressor and the aggressor
who collaborates with an eager partner ought not to be judged
on
quite the same basis as the one who persuades a reluctant partner
or who purchases a consent for money. But such distinctions would
probably be too difficult to draw in practice and we must be satis-
fied with a general test.
For
this purpose the bodily harm test is
reasonable in its essentials but might be interpreted somewhat more
liberally than the judgment in
Donovan
would seem to indicate.
The texts
on
sexual practice in this area demonstrate that the whole
object of a sad-masochistic practice
will
often be the infiction
oE
severe, temporary discomfort.
It
may be
“
transient
”
but will
often be more than
‘(
trifling.” Where
no
likelihood of permanent
harm is present
it
would not seem to
be
good policy to declare such
acts criminal where consent is free and
full.
CONCLUSION
It
is not suggested that there
is
available any easy solution of the
problems raised by the consent issue in sexual offences through the
enunciation of some general principle in the form of an enactment
that might govern all cases of consent. Indeed, any such general
enactment could only be phrased in the most general terms of public
policy. What is needed, rather, is a high degree of practical aware-
ness in the case of each specific offence of the variable policy factors
involved.
It
is submitted that the present state of the law
on
sexual offences reveals anomalies which demonstrate that the policy
factors have not been fully thought through and rationally applied.
686
THE
MODERN
LAW
BEVIEW
VOL
I
And
the area
of
sexual offences
is
not the
only
one
where the
consent
iesue
is
of
great importance. It
is
crucial also
in
the field
of
surgical
operations
where the theory
of
English criminal law
is
particularly
defective.
This
point
will
be
taken up
in
a subsequent article.
Garary
HUOEB.*
*
M.n.(Cmtab.),
LL.e.~der),
U.M.(NeW
York
Univerrity), senior Lecturer
IU
LBW,
Univerrity
College
of
Waler,
Abryatwyth.
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