(a) The judge directed the jury that consent is never appropriate. This is simply false, since consent is a recognised defence. This is evident in the case of Jones, when there is a genuine belief of consent to rough play. In sporting activities consent is also a recognised defence, as seen in Barnes. It was also argued by Dr Peter Jepsen in his paper “Consent and non-fatal offences against the person” that any sexual activity will involve some assault and battery. It is only when consent is absent the law will and should step in. It is inconceivable how the judge concluded consent should always be ignored, as consent must be discussed in some capacity.
(b) The judge’s statement is due to the general reluctance towards reliance in cases regarding violent sexual activity. The case of Brown best illustrates this. On that premise, the misdirection is arguably non-influential to the outcome. However, the facts of the current case are significantly different from Brown or Emmett, but also from Wilson where consent was relied upon. In Brown,
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In Wilson, the court held that consensual activity’s in a matrimonial home was not for the court to interfere with. This was decided on a different set of facts that were deemed to only involve cosmetic enhancement. The act in question should not be contrary to public interest, as the ‘violent’ acts occurred in a private capacity. They were carried out by couple that was in all ways except for in the eyes of the law a married couple, which the courts should not interfere with, as stated in Wilson. Brown was decided on the public interest premise and the defendants were condemned by their acts rather than their result. The judge should have directed the jury correctly in relation to consent and the current position of the law. It should then be for the jury to decide whether this was against public interest or should be treated as it was in