31 May 2018

Consensual Assault

The Tasmania Law Reform Institute Consensual Assault report discusses s 182(4) of the Criminal Code 1924 (Tas) and examines whether there is a need to reform the provision.

The report comments
Section 182(4) governs what is commonly known as ‘consensual assault’, which refers to circumstances where an assault has been committed but the victim has consented to the act in question. Due to the wide definition of assault, the situations where questions of consent can arise are quite varied, from mutually agreed brawls and sporting contests to some forms of sexual activity. 
Prosecutions of assaults and other serious offences of violence are commonplace in the criminal courts. As a rule, such cases involve a non- consenting victim. However, occasionally, cases involving a consenting ‘victim’ also make it to court. These are cases where the parties involved have willingly exchanged blows or inflicted violence upon each other, for example, where two individuals resort to a fist fight to resolve a disagreement. Section 182(4) of the Criminal Code sets out that where a person consents to an assault, then that assault will not be unlawful, save for certain circumstances where the Code sets out that consent will not be valid. 
This section poses difficulties for the criminal justice system and legal scholars alike. The language used is archaic and open to wide interpretation, and case law provides at times contradictory guidance. In the search for a principled distinction between lawful and unlawful consensual assault, courts and legislatures have been obliged to balance public policy justifications for refusing to condone violence regardless of consent against competing claims of personal autonomy. This has proved to be no easy task, particularly in Tasmania. 
This Final Report examines the current law on consensual assault in Tasmania which is contained in s 182(4) of the Criminal Code. It traces the history of this provision from its roots in the common law, and explains how successive common law authorities have informed the judicial interpretation of the provision. The Report contends that some aspects of s 182(4) lack clarity and do not reflect current concerns about when the law might appropriately negate consent to assault. It also expresses concern that the provision reflects an outmoded view of when consent should or should not operate as a defence to assault and leaves those who are particularly vulnerable to violence in the home outside the protection of the law.  The Report subsequently lays out a number of recommendations, attempting to strike an appropriate balance between respecting the personal liberty and autonomy of citizens and the public interest in preventing and condemning violence.
The Institute recommends
R1 s 182(4) of the Tasmanian Criminal Code 1924 should be reformed to modernise its operation and scope and to remove uncertainties as to its application and interpretation. 
R2  s 53(c) of the Tasmanian Criminal Code 1924 should be amended to modernise its language by deleting the phrase ‘maim injurious to the public’ and replacing it with ‘grievous bodily harm, disfigurement or a disabling injury’. S 182(4) should be amended to proscribe consent to assaults committed by adults in private in the presence of a child or children where the assaults are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults. 
R3   s 182(4) not be repealed but that instead it be reformed, with  s 2A amended to specify that a person does not freely agree to an act if that act occurs in circumstances of family violence within the meaning of the Family Violence Act 2004 (Tas). 
R4  s 182(4) should be amended to remove the conditions that currently abrogate consent to assault — that the assault be ‘otherwise unlawful’, ‘injurious to the public’ and ‘a breach of the peace’. Section 182(4) should be amended to provide that consent will not be a defence in respect of assaults committed by adults in private, where they occur in the presence of a child or children where the assaults are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults; in respect of assaults committed in public, where they are of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assaults; or where the assault is committed with the intention of causing serious personal injury that is of no benefit to the person or persons assaulted. For the sake of clarity, s 182(4) should also provide that nothing in that section is intended to deprive people of the ability to consent to medical and surgical treatment or of the ability to participate in sporting activities, ordinary rough play and lawful public entertainments.
R5 The Institute does not, at this stage, recommend amending the Family Violence Act 2004 (Tas) to make violent conduct engaged in in the presence of children a family violence offence. Such reform should only occur following a dedicated study that draws on the experience and views of a wide pool of stakeholders, a pool that includes a large number of advocates against, and experts in, family violence. 
With the 'Spanner' jurisprudence - eg R v Brown [1994] 1 AC 212 - in mind the Institute states
As it currently stands, consensual violence will be unlawful if the Crown proves that the assault is ‘injurious to the public’ (as well as each of the other requirements of s 182(4)). This does not mean that the Crown is required to establish that the activity is positively harmful, merely that it has no social utility.167 However, this position, that private violence, which risks harm only to the consenting participants, must have positive social consequences if it is to escape penalisation, is by no means compelling. Arguably, the appropriate question for the court is not, ‘has the prosecution proved that the activity serves no beneficial social purpose’ but rather, ‘has the prosecution proved that the activity is positively harmful’.
It goes on to comment
It is the Institute’s position that s 182(4) should be amended to incorporate updated language, and to bring it into line with contemporary societal expectations. As discussed earlier in this Report, in addition to archaic wording, judicial construction has resulted in inconsistent interpretations of s 182(4). Proceeding from an understanding that s 182(4) does have a valid role to play in relation to consent to assault, it follows that it should work in all contexts where consent to assault may be a matter of concern, including in both the public and private spheres. At present, it is apparent that s 182(4) has a limited role, if any, to play in the private arena. This discrepancy should be resolved.
The Institute recommends against absolutely disallowing consent in family violence contexts. Such an approach is unjustifiably paternalistic, and would amount to the Code providing as a matter of law that all relationships involving family violence are inherently the same. Given the earlier discussion on the typologies of family violence, such a position is not tenable. Individual family circumstances differ significantly. Consequently, the possibility of consent in family violence scenarios not amounting to free agreement should be dealt with by reference to s 2A.
The Institute is mindful of the need to avoid abrogating consent to assault too broadly and capturing generally acceptable behaviour. For example, while the Institute agrees with submissions that the question of consent to assault between adults in private should largely be governed by s 2A of the Code, where such violence occurs before children, there is merit in abrogating consent under s 182(4) unless the assault is beneficial to the person assaulted in a way that goes beyond mere gratification of that person’s desire to participate in the assault. A reform couched in these terms will target the unacceptable quality of the violence (the fact that it is perpetrated in the presence of children) while avoiding criminalising acceptable conduct, such as sporting events, legitimate entertainment and beneficial personal contacts.
As explained earlier, the ‘otherwise unlawful’ requirement in s 182(4) creates a barrier to its operation in private contexts and is the main impediment to s 182(4) operating consistently in both the public and private spheres.
However, removal of this requirement may result in some conduct being criminalised when, perhaps, it should not be. An example would be consensual sadomasochistic sexual activity. To this end, the Institute suggests that any reform should avoid terms that are vague and open to widely varying interpretations which may enable biased or discriminatory views such as those evident in Brown’s Case to inform decisions about whether consent is lawful. Accordingly, the Institute takes the view that where there is genuine consent, that consent should be abrogated only where there is some aggravating circumstance that justifies the law intruding into the matter. For assaults in private, such a circumstance is supplied where the assault occurs in the presence of children and it is not performed for the benefit of the person assaulted, or otherwise than to gratify the combatants desire to participate in violent behaviour. The latter circumstance also supplies public fighting with an element of wrongfulness that might otherwise not exist where there is consent.
Accordingly, the approach recommended by the TLRI resembles that advocated by the Director of Public Prosecutions. However, the Institute suggests a slightly different reform for s 182(4). Where assaults between adults in private are concerned, the question of consent should be governed almost entirely by s 2A. There should be an exception where the assault occurs in the presence of children and it is of no benefit to the person assaulted beyond mere gratification of that person’s desire to participate in the assault. This approach avoids criminalising conduct of the kind that occurred in Brown’s Case as well as legitimate private sporting or entertainment activities. It also accords with submissions to the Institute that recommended that consent should be immaterial in relation to assaults committed in private in the presence of children. With regard to assaults in public places, the Institute suggests abrogating consent where the assault is of no benefit to the persons assaulted beyond mere gratification of their desire to participate in the assault. Again, this avoids criminalising sporting contacts, acceptable entertainment, and beneficial personal contacts. An example of the last might be where one person thumps another on the back during a coughing fit or performs Heimlich’s manoeuver to prevent someone choking. Additionally, the Institute agrees with the Director of Public Prosecutions that consent should be immaterial in relation to assaults perpetrated in public or private with the intention of causing serious non-beneficial personal injury. That intention also supplies an element of wrongfulness that might otherwise be absent where there is consent. If reformed according to these recommendations, s 182(4) might read:
Except in cases in which it is specially provided that consent cannot be given, or shall not be a defence, an assault is not unlawful if committed with the consent of the person assaulted, unless: 
(a) the assault is committed by an adult and occurs on private premises in the presence of a child or children and it is of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assault; or 
(b) the assault occurs in a public place and it is of no benefit to the person or persons assaulted other than to gratify that person’s or those persons’ desire to participate in the assault; or 
(c) the assault is committed with the intention of causing serious personal injury that is of no benefit to the person or persons assaulted.
The Institute acknowledges that some kinds of rough play between children, and between children and their family members such as a son wrestling with his father, could potentially be criminalised by this reform despite such behaviour being understood to be acceptable and in some cases even beneficial to participants. It is not the Institute’s intention to extend the operation of the law of assault into this kind of play, and instead suggests that the risk of criminalisation is minimised. It may be the case that rough play is already covered by s 182(3) of the Code, in the sense that it constitutes part of normal human interaction. If this is not the case, the benefit element of the recommendation could reasonably preclude the criminalisation of rough play. The recommendation incorporates a test that assesses whether or not the act in question is of some benefit to the alleged victim, a test that could exclude rough play. If there were fears of an unintended operation of the provision, it would be open to have s 182(4) specify that rough but non-hostile play is excluded.
The Institute also recommends that for the sake of clarity, it may be wise to provide that nothing in s 182(4) is intended to deprive people of the ability to consent to medical and surgical treatment or to participate in sporting activity and lawful public entertainment.
The ultimate purpose of this reform is modernisation and consistency. It seeks to eliminate archaic language, but also seeks to eliminate the disparity between public and private assaults in the current consensual assault scheme. By introducing a new test that is common between public and private spheres, the recommendation will essentially close the gap and create more predictable outcomes in cases. Further, the reform is intended to provide a means of addressing children being exposed to unacceptable violence, even where the participants allegedly consent to that violence.