Consent

Key issues: The philosophical underpinnings of the defence under the Penal Code Determining what makes consent only apparent (unreal) Different formulations of the defence under the Penal Code: ss 87 and 88

Rationale

Role of consent

As an element of the crime e.g. rape As a defense As a partial defense to s. 300 Recognition of individual autonomy (the right to decide what is best for ones own life) Paternalistic concerns (some are not in the position to decide for themselves) Moral limits (regardless of consent, some crimes are just so bad we should prohibit them --- what are these crimes? E.g. moral values of society; crimes that degrade personality and autonomy)
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Rationale

As an element of the offense

Rape 375.(1) Any man who penetrates the vagina of a woman with his penis (a) without her consent; or (b) with or without her consent, when she is under 14 years of age, shall be guilty of an offence.

As an element of the offense - rape

Rape 375.(1) Any man who penetrates the vagina of a woman with his penis (a) without her consent; or (b) with or without her consent, when she is under 14 years of age, shall be guilty of an offence. (2) Subject to subsection (3), a man who is guilty of an offence under this section shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning. (3) Whoever (a) in order to commit or to facilitate the commission of an offence under subsection (1) (i) voluntarily causes hurt to the woman or to any other person; or (ii) puts her in fear of death or hurt to herself or any other person; or (b) commits an offence under subsection (1) with a woman under 14 years of age without her consent, shall be punished with imprisonment for a term of not less than 8 years and not more than 20 years and shall also be punished with caning with not less than 12 strokes.

Penal code scheme for consent

Distinction drawn between mature and immature persons Distinction drawn between harmful acts simpliciter and harmful acts intended to benefit Limits to consent some acts that just cannot consent to

s. 87 main principle

87.Nothing, which is not intended to cause death or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person above 18 years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
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s.88 intended beneficial harm

88.Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. No age limit Beyond harm intended/known in s. 87 as long as not intended to cause death
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s. 89 victims who cant consent

89.Nothing, which is done in good faith for the benefit of a person under 12 years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to that person

Can over-ride consent of those who are immature or unsound mind

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s. 92 emergency situations

92.Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that persons consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit:
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Definitional questions

What is meant by consent

Whose perspective? Consent to what?

Benefit
Beyond pecuniary Whose definition?

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Defining consent

90.A consent is not such a consent as is intended by any section of this Code (a) if the consent is given by a person (i) under fear of injury or wrongful restraint to the person or to some other person; or (ii) under a misconception of fact, and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; (b) if the consent is given by a person who, from unsoundness of mind, mental incapacity, intoxication, or the influence of any drug or other substance, is unable to understand the nature and consequence of that to which he gives his consent; or (c) unless the contrary appears from the context, if the consent is given by a person who is under 12 years of age.

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The Mutuality of Consent

No judicial decision on point Based on s. 90:

Consent freely given by the V (no fear of injury/wrongful restraint) Knowledge by the V of the material facts on which s/he based the decision to consent (no misconception of fact); AND Knowledge of A of 1. and 2.

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Freely given consent

Victim Fear of injury or unlawful restraint S. 44 Penal Code any harm whatever illegally caused to any person, In body, mind, reputation or property Note: difference between threat and opportunity
V consenting to sex for a promotion V consenting to sex to avoid unlawful dismissal

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Freely given consent

Accused know or have reason to believe Objective standard

YMC: strict standard is justified because A partially to blame for creating circumstances (being origin of fear of injury or unlawful restraint)

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Misconception of fact

Common law: draws distinction between nature of the act and details of the act

Has resulted in instances of unfairness been criticized

YMC: proposes should adopt broader definition - drafters adopted a broad approach generally to consent so to balance this, consent should be real)
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Siew Yit Beng

Argued: Had submitted because under the misconception that doctor would cure her. Held: What was crucial in this case was that there was no misconception on the part of the appellant regarding the nature of the sexual act. By her own admission as well as the evidence of her husband, she obviously did not regard it as part of the treatment and that she had engaged in the act "in exchange for treatment". Cf. Such a proposition is well established and is illustrated by the case of The Queen v Flattery (1877) 2 QBD 410. In that case, the accused person engaged in carnal intercourse with the complainant under the pretence of performing a surgical operation to cure her of an illness
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Siew Yit Beng

Lower court: Argued she had allowed Tan to have sex with her in exchange for treatment because her mind was "controlled" by him and therefore her consent was vitiated under s 90(a) of the Penal Code. The trial judge disbelieved her evidence that her mind was under the control of Tan who allegedly convinced her that he was the only one who could cure her. The evidence showed that the appellant consulted at least 37 other physicians to seek their second opinion. She did the same on 20 June 1998, the very day she was allegedly raped by Tan. Even though she was found to be of borderline intelligence, there was no sign of weak-mindedness or dependence she claimed to be labouring under. Based on the transcripts of the tape recordings, it was apparent that Tan was not in a position of dominance vis--vis the appellant as he was reduced to tears and had gone down on his knees. She even scolded Tan
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Teo Eng Chan

It was argued that the absence of injury tended to show consent. That is true where an accused used physical force to get the victim to submit to sexual intercourse. There was no such allegation here. Kay was overawed into submission by the conduct of Teo, Sim and Ng, by the whereabouts of the events, a deserted quarry on a dark night and by the presence of three men outside the cabin when the fourth was alone with her. Before sex, each Teo, Sim and Ng threatened Kay with either or both, a beating or a call to the others to come up. Either of these threats to my mind was more than adequate to put Kay in fear of hurt to herself. I find as a fact that Teo, Sim and Ng each put Kay in fear of hurt by their various respective utterances immediately prior to each having, without her consent, sexual intercourse with her.
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Queen v Poonai Fattemah & Or

A had persuaded V to be bitten by a venomous snake after assuring him that A had magical power to restore V to health. A and V all genuinely believed that Ds had such magical power. Held: Even though V had consented under a misconception of fact, the defense of consent succeeded. Ds were guilty of culpable homicide not amounting to murder.
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Beneficial harm: s. 88

S. 92 Explanation: Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92. YMC: from the perspective of the parties (in line with idea of autonomy associated with defense of consent)

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Beneficial harm: s. 88

In good faith

S. 52: Nothing is said to be done in good faith which is done without due care and attention 1. Belief in the nature of the act (subjective) 2. The way the act is done Should be 1. Intentionally/knowingly cause harm (but cant law permit you to intentionally/knowingly cause harm and impose additional requirement of doing so carefully) At the point of agreement rather than in the doing of the act

Does good faith go to

YMC

Even if 1. the way you did it could be relevant to determining if you held a good faith belief
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