Consent In Law

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The judgement in Brown has been widely criticised by many academics for its inconsistent approach by the courts to the defence of harm caused. Consent arises from a variety of everyday circumstances that would otherwise give rise to minor batteries, and the question of whether the homosexual acts carried out by the participants in Brown were morally right in the eyes of the court and law, arises. Accordingly, the following essay will explore the issue of consent in law as a defence, and will weigh the arguments of whether these moral judgements should be made by the courts, under the justification of law. Prior to the Sexual Offences Act 2003 (hereafter SOA), the definition of consent did not exist within the statute, however there was guidance …show more content…
Similarly, the Wolfenden Committee believes that the law should neither “intervene in the private lives of citizens,” nor should the area of private morality be “the law’s business.” Nevertheless, not everyone shares the exact same opinion. Lord Devlin, supporting James F Stephens’ argument, believes that even private homosexual acts are a threat to social morality and should in fact be subject to punishment. Supporting his argument, Buttiglione defines homosexuality as a sin, which may lead us to believe that Devlin’s opinion may have been biased due to his Catholic beliefs and upbringing. The underlying heteronormative values may have also affected Lord Templeman’s judgement, when he revealed his perspective on SM, saying that “pleasure derived from an infliction of pain is an evil thing.” This can be further supported by the 1956 Act, as “gross indecency” between two men, whether in private or in public this was classified as an offence. Arguably, the judgement breaches article 8, since the act was within the homes of the participants and therefore was public safe, however Devlin would argue that it is not in the public interest to motivate the “immoral” behaviour, which he believed should be punished by the …show more content…
In 1954, the Cabinet proposed that homosexual offenders should be able to seek medical treatment, following the legalisation of homosexual acts in 1967, as mentioned before. This implies acceptance of different forms of sexuality. Thatcher argued that “there is no such thing as a society; there are individual men and women.” Around the same time, Slingsby’s conviction for manslaughter was quashed, where the Court of Appeal commented that “unintentional fatal injury during consensual activity is not criminal,” which contrasts the decision in Brown where, in comparison the result was not so fatal. This contrast in decisions represents different social context, as well as implying that judges were guided by their beliefs of what seemed to be morally right to them.

Concluding this essay, I believe it is clear that there is inconsistency betweens the courts, considering the cases of Brown and Wilson, who do not share similar judgements. This implies that homosexual activities were not seen as “morally right” by the majority of judges. After Slingsby’s conviction was quashed, followers of Hart would have believed that the judgement was prejudiced; consent was present in both cases of Slingsby and Brown. I conclude with my opinion, that our law needs to change in order to adapt to today’s society, but in order to do so, our society needs a paradigm

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