SW201 - Criminal - Seminar 8 by Claire Turner

Law

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R v Brown

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Link to Prezi

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Real life examples

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List of cases involving consent as a defence

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Article by Sam Pegg

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The reverse argument - The Spanner Trust

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Where should the law draw the line between consent and culpability in sadomasochism?

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Article on S&M Activity by Sam Pegg

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Podcast

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Case study - Grace Millane

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Hayley, a young student, met an older and very wealthy man, Nathan. Nathan pursued Hayley relentlessly and they eventually started a relationship. Hayley was hoping for romance but Nathan’s interest in Hayley was largely sexual. He sought to introduce Hayley to bondage, domination and sado-masochism. Hayley agreed and Nathan gradually introduced more extreme activities into their BDSM. Hayley loved Nathan and acquiesced to these activities. One morning, Hayley was found at the bottom of the stairs in Nathan’s house with serious and disabling injuries. These injuries included vaginal trauma, a severely fractured eye socket, extensive bruising and internal injuries. Nathan was charged with a s18 offence in relation to Hayley’s injuries but claims that they were sustained during ‘rough sex’ and that all activities were within the boundaries of their previously consented to BDSM. Examine Nathan’s liability and critically evaluate the law in this area.

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Articles

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European Convention Human Rights (ECHR)

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s18 - wounding/gbh with intention

GBH - vaginal trauma - wound - Eisenhower

Other injuries - really serious harm (DPP v Smith)

Intentional?

Prosecution's case

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1) Brown - p235-237

2) Vulnerability - domestic abuse? Validity of consent? free deliberate and informed or under duress. Rough sex defence is damaging to society

3) Injuries and treatment - impact NHS and police of dealing with injuries - cost and time. Diverting valuable resources away from those in most need.

4) Problem with witness testimony - one word against the other

5) ECHR - Art 3 - inhumane and degrading treatment.

6) Art 8 - not an absolute right - publlic safety and health and morals are important considerations before Art 8 is applied.

7) Julia Tolmie article

8) s2 Domestic Abuse Act 2021

Defence

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Article 8 - private life

Brown - majority 3 to 2. Lord Mustill dissenting judgment.

Controversial - homosexual 'sado masochistic homosexual activity cannot be regarded as ...

1994 - society's views have changed

Brown - blanket

Needed no medical no medical treatment or intervention by police.

Wilson - consent valid - heterosexual

Horseplay

Barnes - sports

Violence -