Consent in Sexual Offences

Author(s): Graham Hughes

Source: The Modern Law Review , Nov., 1962, Vol. 25, No. 6 (Nov., 1962), pp. 672-686
Published by: Wiley on behalf of the Modern Law Review

Stable URL: http://www.jstor.com/stable/1092415

REFERENCES
Linked references are available on JSTOR for this article:
http://www.jstor.com/stable/1092415?seq=1&cid=pdf-
reference#references_tab_contents
You may need to log in to JSTOR to access the linked references.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Modern Law Review and Wiley are collaborating with JSTOR to digitize, preserve and extend
access to The Modern Law Review

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
 CONSENT IN SEXUAL OFFENCES 1

THE las of torts deals primarily with compensation between

individuals. Aspects of deterrence may be present but the central
issue in tort litigation is the propriety of granting compensatory
(lamages to a particular plaintiff against a particular defendant.
The justice of the plaintiff's claim may be patently weakened by his
having consented to the infliction of the actual harm, or the issue
may be raised less clearly by his having voluntarily exposed himself
to the risk of the infliction of the harm. The defence of the plain-
tiff's consent is thus plainly relevant in the law of torts and the
doctrine of volentz norz fit injuris has been worked out in some
detail. In the context of a criminal prosecution the relevance of the
consent of the injured party is not so immediately apparent. Here
the wrong to the immediate victim is seemingly absorbed in the
ong to the community as a whole. The policy of creating a
cnminsl offence in the case of the invasion of an individual interest
is a recognition that such an inrasion also attacks community
walues and interests in so serious a fashion that the procedures and
sanctions of the c iminal law are thought to be fit instruments of
intervention. The individual with respect to the private law of
compensation may consent to the infliction of halm upon himself
and so may lose his remedy, but he cannot be the attorney of the
community to relinqliish the general privilege of society to punish
disruptive acts. As Lord Coleridge C.J. said in R. s. Coney, " An
individual cannot by such consent destroy the right of the Crown
to protect the public and keep the peace." 2
So general a declaration, however, is unacceptable as a statement
of the policy issues involved. The invasion of a private interest is
criminsl only because it is concurrently a threat to the public peace
or to public morals. It may be possible to argue that in some
circumstances the consent of the indieridual to what would have
been an unlawful invasion of his person, if done without his consent,
negatives the threat to the public interest and so ought to remove
the act from the scope of the criminal law. If the consent of the
victim is thought to deprive the act of its disrupting social effect,
then the act ought to lose lts criminal character. This is the point
of debate which ought to be the concern of le islatures and courts
in determining the relevance of consent in the criminal law.
It may be helpful at the outset to offer a rough dinsion of

The present author has written bneflJr on this topic before, in 103 IJ.J. 116 and
33 Can.B.Rev. 88. He wi8he8 to thank the editors of these journals for permis-
sion to reproduce in an amended form one or two paragraphs. This article was
written and accepted for publication before the appearance of Dr. (}lanville
Williams' article " Consent and Public Policy " [1962] Crim.L.R. 74 and 154.
2 (1882) 8 Q.B.D. 534 at 567.

672

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
Nov. 1962 CONSENT IN SEXUAL OFFENCES 673

crimes into groups according to the possible relevance of consent

as a defence. Some crimes by definition do not contemplate any
specific human victim and in such crimes, therefore, the question of
consent cannot arise. Examples would be blasphemy or defrauding
the revenue authorities. Then there are offences where the pro-
hibited act may indeed impinge especially on individual members
of the public but where the harm envisaged clearly involves a threat
to public security or convenience generally. Such a crime would be
a public nuisance or riot. Itere the consent of individuals who may
have been obstructed or put in fear is irrelevant, since the essence
of the crime is its publicness, that is its likelihood of impinging on
the public in general. Thirdly, there is a group of crimes which
are, by definition, concerned with an individual victim, such as
rape, murder, and batteries. Of this last group of crimes, some by
definition require a lack of consent in the victim before the actus
reus of the crime may be said to have been committed. Such a
crime would be rape, in the English understanding of it. Such
crimes are of no concern here, since consent is an express defence.
Again there are in this group offences where consent is just as clearly
not a defence. Examples would be sodomy and unlawful sesual
intercourse with a girl under the age of sixteen. Such crimes are
not altogether free from difficulty, since, although it may be clear
that the consent of the passive participant is no defence when the
active agent is charged, the question may remain whether the
passive participant is himself guilty of the offence as aider and
abettor. And we are left in this third category with a residual group
of offences where the applicability of consent as a defence is far
from clear. Assaults occasioning some bodily harm particularly of
the indecent or sado-masochistic variety fall to be considered here,
and the law with respect to surgical operations is also by no means
certain.
Such a classification is not of course ultimately instrlletive,
since the important debate will usually be on whether consent ought
or ought not to be admitted as a defence in particular circ
stances.3 This article will discuss some consent problems m sexusl
offences and in assaults of a sesual nature.

ASSAULTS GENERY

It is generally accepted that at common law consent is no defence

to a battery which amounts to a mayhem, and a fortion no defence
to a homicide.4 The provision in the lIomicide Act of 1957 on

8 A similar classification may be found in Perkins, Criminal La?o C1957) 852.

Perkins' book contains 8 good >eneral treatment of consent. Other general
discllssions are Beale, " Consent in the Criminal Law," 8 Harv.L.Rev. 317;
Puttkamer, " Consent in Rape," 19 Ill.L.Rev. 410; Puttkamer, " Consent in
Criminal Assault," 19 Ill.L.Rev. 617.
4 Wrightts case, Co.Litt. 127a (1604) I Eawk.P.C. 108; 3 Stephen History of
the Criminal Lato, p. 104 Miller, Criminal Lasv (1934), p. 172; Perkins,
Criminal La1x (1957). p. 853. Ca6es on causing death by duelling are R. s.
Young (1838) 8 C. dG P. 644; R. v. Cuddy (1843) 1 C. & E. 210.
VOL. 25 24

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
674 1SE MODERN IAW R13vZW VOL. 25

suicide pacts covers the case of one party to the pact killing the
other, but, since the reqUement of the settled intention of dying
under the pact is insisted on, it does not operate as a general
exception to the rule.
When the harm inflicted by an assault is less than a mayhem or
where there is no measurable physical harm at all, the position in
English law, and izIdeed in nnumon law jsdictions generally, is
less sharply defiaIed. In Chtopherson v. Bare, Patteson J. said:
" An assault must be an act done against the will of the party
assaulted: and therefore it cannot be said that a party has been
assaulted by his own pession." 5 The South Dakota decision
in State v. ilrcher quotes Bishop on Cnminal Law: " One who
assaults or whips another at his request or with his consent does
any other act which under ordinary circumstances would amount
to an illdictable battery cotnmits no crime." ff In Smith s. State
the collrt said: " An assault . . . upon a consenting party would
seem to be a legal absurdity." 7 English courts, however, have
been qliite ready to convict of assault in some circllmstances even
izI the face of consent, especially in the line of cases on prize fights.
A delicate distinction has had to be drawn here between permissible
bosing matches and brutal contests which are to be declared illegal.
The matter was well put by Sir Michael Foster. Speaking of the
8ports of cudgelliIlg and wvrestling, he wrote:
" Here is indeed the appearance of a combat, but it is in
reality no more than a friendly exertion of strength and
dexterity.... They are manly diversions, they tend to give
strength, slrill and activity d may fit people for defence....
I would not be understood to speak of prize fights . . . which
are exhibited for lucre and can serve no valuable purpose,
but on the contrary encourage a spirit of idleness and
debauchen,.ss 8

So in Perkins the acowed were indicted for riot and assault for
taig part in a pnze fight. In his snmming up Patteson J. said:
" It " proured that all the defendants were assisting in this breach
Of the peace; and there is no doubt that persons who are present
on such an occasion, and taling any part in the matter, are all
equally gliilty as pnncipals." 9 In Orton the chairman directed
the jury that if the encounter was a mere exhibition of skill in
sparring it was no oifence in law, but if the combatants intended

5 (1848) 11 Q.B. 478 st 477.

e 22 80uth Dakota 137; 115 N.W. 1075 at 1076 (1908), citing I Bishop, Criminal
Lato, p. 260.
7 12 Ohio 8t. 466, 80 Am.Dec. 355.
8 Croton Law 259. In R. v. Young (1866) 10 Cow C.C. 371 it was held that a
sparnng match was lawful if there was no likelihood of serious bodily harm.
9 (1831) 4 C. h; P. 537. The jury was evidently troubled at the prospect of con-
victing of asssult those of the accused who had been mere speetators and, in
spite of the judge's plain direction, acquitted them on this count. See, too
Matthe10 v. Ollerton (1692) Comb. 218 (" Licence to beat me iB void, because
'tis against the peace").

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
Nov. 19Z CONSENT IN SEXUG OFNCE8 675

to fight until one gave up from exhaustion it was a criminal offence.

This direction was approved by the Court for Crown Cases
Reserved.l° The charge in 07rton's case was of unlawful assembly
but it is presumably a fair deduction that a charge of assault would
have lain. This view of the law crystallised and received its most
authoritative expression in Coney, a case reserved by quarter
sessions for the Court for Crown Cases Reserved. There the pro-
ceedings again arose out of a prize fight and the charge this time
was one of assault. The judgment of Hawkins J. is particularly
instructive:

" The defendant's counsel contended that, each of the

combatants hanng assented to the fight, neither could be
convicted of an assault upon the other. To this contention I
cannot give my sanction. @ . . Whatever may be the effect of
a consent in a sliit between party and party, it is not in the
power of any man to give an effectual consent to that which
amounts to, or has a direct tendency to create, a breach of the
peace.... Nothing can be clearer to my mind than that every
fight in which the object and intent of each of the combatants
is to subdue the other by violent blows is, or has a direct
tendency to, a breach of the peace....'' ll

The judgments in this case in the Court for Cro Cases

Reserved rest the fillding of criminal assault equally on the grou
of the tendency to a breach of the peace and the tendency to cause
bodily harm to the participants. So, Cave J. said: " The true
vierv is, I think, that a blow struck in aIIger, or which is likely or
is intended to do corporal hurt, is an assault, but that a blow struck
in sport, and not likely, nor intended to cause bodily harm, is not
an assault. . . ." 12 And Mathew J.: 6' There is, however, abun-
dant authority for saying that no consent can render thst iocent
which is in fact dangerous." 13 This criterion for the availability
of the defence of consent seems now to have gained wide acceptance
in common law jurisdictions. Beale, writing in 1895 in one of the
few general treatments of consent in comTnon law literature,
summed up the position: " In cases of actual personal injun,
whether homicide, mayhem or battery, consent of the injured party
i8 no excuse to the wrongdoer if the act consented to tends to a
breach of the peace or to severe bodily harm, or to a loss of chastity
which is not consented to." 14 An identical position appears to be
accepted in modern American lasv.l5 II1 so far then as the com
mon law has developed any general doctrille of consent as a defence

(1878) 14 C02: C.C. 226. The accused were convicted, even though the fighters
had worn gloves, there being sufficient other evidence of the serious an(l
sanguinary nature of the combat.
(1882) 8 Q.B.D. 534 at 553. A Canadian decision holding that consent i8 no
defence to a charge of assault where there has been a bre.ach of the peace i8
R. v. R1lchanan (1898) 12 Man.L.R. 190; 15 E.E.D. 992.
12 At 539. 13 At 547.
14 " Consent in the Criminal Law." 8 Harv.L.Rev. 317 at 3527.
15 See Perkins, Criminal La?r (1957) p. 853.

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
676 TIIE lSODElLN IAW R2;v^t voN w

it is one extracted from decisions on prize fights, duels and sparring

matches. The question to be asked is whether this limitation cf
the defence of consent by the boundaries of breach of the peace and
bodily harm is a sufficiently subtle expression of public policy in
other fields.

SEXUAL OFFENCES
The relevance of consent here is first, as alwvays, to the liability of
the actor or agent. Does the consent of the victim, or pathic,
esonerate the agent ? But, secondly, in this area we are especially
confronted too with the position of the consenting lrictim. Does
his or her consensual participation amount in itself to a criminal
oXence, usually of course to aiding and abetting the principal
offence of the agent ?
At common law, in the absence of bodily harm or a breach of
the peace, the consent of the victim always negatived the assault
element of a sexual offence, so that in the absence of a specific
offence of which assault was not a necessary ingredient and in the
absence of a statute expressly negatilring consent as a defence,
consent would alw-ays provide a good answer. This was so even in
the case of very young children, as in .'lleredith 16 where the subject
was a 1 of ten. The matter was put plainly by Hawkins J. in
Coney: " The cases of alleged indecent assaults on young children
by their consent . . . may all be disposed of in this one observation,
viz., that the indecent impositions of hands charged in those cases
as assaults neither involved, nor were calculated to involve,
breaches of the peace, and, therefore, being by consent, were not
punishable as assaults, any more than they would have been had
the objects of them been for the most innocent purposes" 17 Here
akeady then, in Coney itself, the very case which purported to lay
down a rubnc for testing the availability of consent as a defence,
that rubric is found wanting by admission in cases of indecent acts
with young children. Statutory intervention was inevitable and
by the Cnminal Law Amendment Act of 1880, section 2, it was
provided that it should be no defence to a charge of indecent assault
on a child under the age of thirteen to prove that the child con-
sented to the act of indecency. By the Criminal Law Amendment
Act of lO22 the age of consent was raised to sisteen. The governing
enactment is now section 14 of the Sexual Offences Act, 1956, which
has made a perhaps significant change in wording. After creating
the offence of indecent assaults on women, it goes on: " A girl
under the age of sixteen canllot in law give any consent which would
prevent an act being an assault for the purposes of this section."
Section 15 makes identical provisions for indecent assaults on men

18 (18l) 8 G . & P. i9. Se , t R. v. Martin (1839) 9 C. & P. 213; R . r.

Read (1849) 3 Cox C.C. 266; R. v. Mehegan (1856) 7 Cox C.C. 145; R. v.
Johnson (1865) 10 Cow C.C. 114.
17 (1882) 8 Q.B.D. 534 at 554-555.

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
 intercourse with. . 21 In the case of incest by a woman the
Nov. 1962 CONSENT IN 8EXUE OCES 077

and boys.l8 Similarly in a series of enactments of which the gove

ing ones are now sections 5 and 6 of the Sexual Offences Act,
it was made an offence to have unlawful sexual intereo
(formerly known as unlawful carnal knowledge) with a girl u
sixteen. The bodily harm and breach of the peace tests b
utterly irrelevant in this context, the expression of public po
is secured by the piecerneal intervention of statute. The dan
of such an approach are that marginal problems may arise,
expressly provided for by stswtute, which must then be solve
mechanical fashion in the absence of any general declaration
policy in this aFea. These problems become apparent whe
consider the position of the party consenting to the prohibite
In a number of instances it is perfectly clear that the consen
party commits an offence, e.g., sodomy between adults, i
between adults, gross indecency between adult males. In som
these cases we may of course quarrel with the expressed polic
the law, but at least its expression is beyond doubt. But wha
the position where at common law the consent of the one p
would have been a defence to the other, but where this defen
been removed by statute in the interests of the victim ? An offe
having been created with respect to the agent in spite of the
party's consent, can it be said that the other party in giving cons
becomes gliilty of the offence as aider and abettor ? Obviousl
wording of the relevant enactment must first be caref
scrutinised. If we compare on the one hand statutory langua
the case of the offences of buggery, gross indecency between
and incest with, on the other hand, the statutory language
offence of indecent assault the contrast is plain. In the first
we find the statute speaking of " to commit an act of gross
cency with another man," 19 C; to commit buggeF with ano
person 99 20 and, for incest in the case of a man, " to have

18 The earlier enactments linked consent specifiszal y with the " act of indecency."
This made pos ible the argument that, if the as ault wa3 severable from the
indecent act (which if pas ive would not in itself amount to an as6au It,
Faisclough v. Whipp (1951) 35 Cr.App.R. 138) &Ild if the as ault was con-
sented to, the prosecution must fail. This iB thought to have contributed to
the controversial decision of the Divisional Court in D.P.P. V. Rogers (1953)
37 Cr.App.R. 137 nvhere a fathert who, with the intention of ena ¢ing In
indecent activities, had put his arm around his young daughter to lead her
upstairs > was acquit ed of indecent as ault. A valuable discus ion of these
cases and al ied problems is Mackesy, " The Criminal Law and the Woman
Seducer" [1956] Crim.Il.R. 4 6, 529 and 798. This difi culty may now have
been remosed bv the altered wordina introduced bv the Sesual Offences Act,
1956, but until recently there remained the much criticised gap in the law that
it was no otfence to perform an indecent act in the presence of children or to
procure a child to perform an indecent act on one's person. Se Wil iams v.
Gibbs (1958) Crim.C. d:; C. 138 and the First Repot of the Criminal Law
Rerision Commit e (Indecency tsith Children) Cmnd. 835. This is now
rectified by the Indecenev with Children Act, 1960.
19 B. 13, Sesual Offence6 Act, 1956 (italics added).
20 S. la (1), Sexual Offences Act, 1956 (italics added).
21 B. 1O (1), Sesual Offences Act, 1956 (italics added).

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
678 TXIE MtODERN IAW Rt;v115w
VOL. 2t5

statute makes the matter quite clear by providing: " It is an

offence for a woman of the age of sixteen or over to permit a man
. . . to have sexual intercourse with her by consent." 22 This statu-
tory language clearly seems to contemplate the creation of an
oSence between two consenting parties who shall be equally
culpable. Quite a contrary intention would seem to be apparent
in the denial of consent as a defence in the cases of indecent assault
on girls and boys under the age of sixteen. The statute here speaks
of indecent assault on women and men. In going on to provide
that the consent of boys and girls under sixteen shall be no consent
on such a charge it is, therefore, reasonable to conclude that here,
rhere both parties were previously non-culpable, the intention is
to create an offence with respect to the one but not the other.
But the position is less simple in the offence of unlawful sexual
intercourse wvith girls under sixteen. Here the statutory language
is identical with that in the offences of gross indecency, buggery and
incest, and it is, therefore, quite possible to put up a plausible
argument that the young girl in these cases can be regarded as an
aider and sbettor. This indeed was strongly argued for the prose-
cution in Tytrell,23 where a girl under sisteen was convicted by the
ttial collrt of giding and abetting a man to have unlawful carnal
hlourledge of her (as the crime then was) under section 5 of the
Cnminal Law Amendment Act, 1885. But the Court for Crowvn
Cases Reserved upset the conviction on the ground that the statute
was designed for the protection of young girls and was not meant
to implicate them criminally. It is perhaps beyond much doubt
that the Court for Crown Cases Reserved was here correctly inter-
pretillg the intention of the legislature. It does not of course follow
that such a legislative policy is itself beyond doubt. It has been
vigorously argued that when a girl is over the age of fourteen it
should be a defence to a man charged with unlawful sexual inter-
course with her to show that the girl understood the nature and
implications of the sexual act and consented.24 This argument goes
to the culpability of the man; but, accepting the policy for the sake
of argument of holding the man culpable in all circllmstances, we
may adapt the argument and suggest that the general deterrent
policy of the las might be better served by regarding the girl as an
accomplice in a mutually unlawful act of sexual intercourse, svhen
she consented with understanding of the nature and implications
of the act. Thi8 argument can perhaps be slightly strengthened by
a semantic point. The i:nglish variety of this offence has always

22 8. 11 (1), 8esual Offences Act, 1956. Some American states holds that incest
is only committed where there is consent. If force is used, rape is the only
appropriate charge. See Miller, Criminal Law (1934), p. 436.
23 tl894] 1 Q.B. 710. It i8 proper to convict of this offence even if the girl *lid
not consent, R. s. Neale (1844)1 Den. 36.
24 Note, *' Forcible and Statutov Rape and the Consent Standard," 62 Yale L.J.
55, 80. But the Departmental Committee on Sesual Offences against Young
Persons '1925) Cmd. 2561 reported in favour nf raising the age of consent for
females from sisteen to seventeen.

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
Nov. 1962 CONS IN SEXUE OBENCES 679

been known as unlawful carnal knowledge or unlawful sexual inter-

course, thus marking it off clearly from the offence of rape, unlike
most American jurisdictions where it is commonly known as statu-
tory rape. This is a sensible recognition of the alleariating presence
of consent here, which, in some circumstances, may make the girl
at least equally culpable. The merit of this choice of language is
perhaps vitiated by the fact than an indecent assault is still known
as an assault even though it may be done with the eager collabora-
tion of a fifteen-year-old girl. Here, with iIldecent assaults, the
age limit of sixteen can in some cases appear absurdly high and the
las ought to be put on a rational basis, either by tnaking the girl's
appreciation of the nature of the act a defence to the man or a
ground for her conviction. The latter step, though rational in its
distribution of culpability, would prove ludicrous if strictly enforced
which supports the view that the wiser step, both with unlawful
sexual intercourse and with indecent assaults, would be to make the
understanding consent of a girl over fourteen a defence to the man
charged.
The form in which the question of the consenting person's culpa-
bility has most often come before the courts has been in connection
with corroboration. In Jellyman, where the husband was charged
with committing buggery on his wife, Patteson J. said: " There was
a case of this kind which I had the misfortune to try, and it there
appeared that the wife consented. If that had been so here, the
pnsoner must have been acquitted; for although consent or non-
consent is not material to the offence, yet, sws the ife, if she
consented, would be an accomplice, she would require confirma-
tion...." 25 In this way consent, although denied expressly as a
defence, often achieves such a status indirectly. In Jellyman itselfs
although the wife claimed to have resisted, the husband was
acquitted. Difflculty has been encountered when the consenting
pathic has been a young boy. In Tate 26 a boy pathic of si2rteen
was held to be an accomplice to sodomy so that corroboration was
necessary when the adult offender was charged. In Cratchley 27 the
accused was charged with assault with intent to commit sodomy
(now an offence under section 16, Sexual Offences Act, 1956). It
was alleged that he had committed the offence with a boy of thirteen
while a boy of ten was told to keep watch. The argument turned
on whether the boys were to be regarded as accomplices so that
corroboration would be necessary. It was agreed by the defence
that a boy under fourteen could not be councted of active sodomy
because of the general presumption that a blJ-y of this age is in-
capable of a sexual offence involving active intercourse,28 but it was

25 (1838) 8 C. ^ P. 604.
26 [1908] 2 E.B. %0; (1908) 1 Cr.App.R. 39.
27 (1913) 9 Cr.App.R. 232.
28 See R. v. Eldershaw (1828) 3 C. & P. 396: iB boy being under fouHeen,
he cannot, bv law. be found guilty of a rape, except as a principal in the
secona degree" (per Vaughan B*).

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
680 ISE 1KODERN IAW REVIEW voL. X

argued that he could be an accessory and also an aider and abet

if he had passively consented and if the necessary mischievo
intent could be shown. The prosecution submitted that a
under fourteen could not be indicted for sodomy at all. In
judgment of the Court of Criminal Appeal it was held that the
who kept a lookout could have been an accomplice but that on
facts he was not, since there was no guilty kIlowledge or mischiev
intent. There is no discussion in the judgment of the positio
the pathic and, since the argument centred on the sexual incap
of boys under fourteen, the case is not helpful on the general pro
lem of consent. But the issue seems to have been clarifie
Tatam 29 where the accused was convicted of sodomy with b
some of whom were over fourteen and some under. The Cou
Criminal Appeal held that boys under the age of fourteen co
not be convicted as accomplices to sodomy in the role of conse
pathics, but that a consenting boy over the age of fourteen could
Once again it must be borne in mind that the decision, altho
clear cut, was given in the context of the corroboration issue.3
On the authority of Tatam it now appears that a boy betw
the ages of fourteen and sixteen can be convicted of the very seri
offence of sodomy as an accomplice when he is a consenting pa
This is very hard to reconcile with the rule that a girl under
age of sisteen is not guilty of any crime when consenting to
intercourse which will be criminal for the male partner, even tho
she may have been the active iIIstigator. Alld can a boy u
sisteen be convicted of committing an act of gross indecency
another man? 31 Mr. Turner, in his edition of Russell, takes
view that under the principle of Tyrrell, there could be no c
nction here.3-) But this view implies the application to the of
of gross illdecency between men of a principle drawn fro
offence of ualawful sesual intercourse with girls, a transfere
which can be by no means certain. Again, can a girl under si
who consents to an act of sodomy being committed upon her
convicted as an accomplice ? There appears to be no express a
rity on this and the solution is very arguable.33 Can the offe
unlawful sexual intercourse include an act of sodomy ? If it
then the legal position of the girl ought not to depend on the
of the charge and she should be immune from liability when
senting to sodomy, applying the principle in Tyrrell. Bu
submitted that the better ariew is that unlawful sexual inter
29 (1w1) 15 Cr.App.R. 132.
30 With respect to the law of sodomy in the IJnited Ststes, Perkins, Crimin
(1957), pp. 33, writes: " If the act iB committed on a very youn
only the older person is guilty and the child iB not all accornplice.' b
ca6eS citeI are ones in which the bov zas, respectively, 12, 10 and 7

31 8. 46, Sesual Offences ^&ct. 1956. provides that " man " incIudes
S2 l Bussell, Crime (1958, p. 149.
33 Stephen, Digest of the Criminal Lav:, Art. 240, took the view that bo
and girls between 14 and 16 could be convicted as accomplices to sodo

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
Nov. 1962 CONSENT IN 8EXUAL ONCE8
681

does not include an act of sodomy,34 in which case the formal argu-
ments would be in favour of admitting the possibility of convicting
the consenting girl on the charge of sodomy itself.
Mr. Turner's view is that " there is nothing in the statutes
dealing with sodomy to show that they were enacted to save young
people from themselves, so as to bring this case [i.e., Tatam] within
the principle applied to cases of consent by females of tender years."
He goes on to comment that " the matter is not perhaps of great
practical importance since the desirability of corroboration can be
treated as arising from the fact that the case is a sesual one, and as
such the evidence of a male person of tender years should be
received with caution apart from any rule of law." 35
With respect, it is not wise to conclude that the only relevance
of this issue will be in connection with corroboration. Though it
may be extremely unlikely that a prosecution would ever be brought
against a boy or girl under sixteen who had consented to sodomy,
yet it is not so unthinkable as to be unworthy of exrmination.
Apart from this practical possibility, the anomalies in the present
law reveal a basic neglect of the policy questions relevant on the
issue of consent. It may be that the statutory offence of unlawvful
sexual intercourse with girls under sixteen was created with the
express policy of protecting young girls against themselves as well
as against men and that no such express policy can be located izI
the older and more general offence of sodomy. But this should not
deter an attempt to examine the present criminal law in the light of
rational considerations. We have seen that with the offence of
unlawful sexual intercourse with a girl under sixteen the culpability
of the parties may vary enormously, and it has been suggested that
this should in some measure be recognised either by admitting as a
defence to the man that a girl over fourteen consented when appre-
ciating the nature and implications of the act or by making this a
ground for the conviction of the girl. Is there any good reasoll
for adopting a different test in the case of sodomy? Can a girl or
boy over the age of ctiminal responsibility but under the age of
sixteen give that full and understanding consent to an act of sodomy
being committed upon her or him that can iIl some circumstances
be given by a girl of that age to a normal act of sexual intercourse ?

34 The old cases on rape are not very helpful on this point, although one does
sometimes find language broad enough to cover unnatural intercourse, e.g.,
" The only queBtion . . . iB whether the private parts of the man did enter
into the person of the woman, " R. v. A llen (1839) 9 C. 85 P. 31 at 34.
Stephen, Digest of the Ctiminal Lato, Art. 350, defines carnal knowledge as
" the penetration to any the slightest degree of the organ alleged to have been
carnally known by the male organ of generation." This is repeated in S. 1,
First Schedule, Tasmanian Criminal Code Act, 1924. The English statutes
do not help on the point, 8. 44 of the Sexual Offences Act, 1956, merely
pronding that " where . . . it iB necessary to prove 6exual intercourse (whether
natural or unnatural), it shall not be necessary to prove the completion of the
intercourse by the emission of seed . . ."
8S 1 RUBBell, CTime (1958), p. 143.

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
682 THE MODBN LAW REVIEW VOL. 25

Whatever the answer to this may be, the present law i

fault in assllming that such a consent is always an unde
one, which is the conclusion implicit in the present rule
young person can be conncted as an accomplice. Acqu
the momellt iD the policy of contialliing a general crime
the best solution, it is submitted, would be, as with the
unlawful sexual intercourse, to pronde that generally no
under the age of sixteen should be liable to conviction
as a consenting pathic,36 but that where the prosecution
that the young person understood the nature and implica
act and freely consented a conuction would be prop
well be that with the unnatural act of sodomy this burd
harder for the prosecution to discharge than in the case
sexual intercourse with a girl under the age of sixteen,
would seem to be no powerful considerations arguing in
any general distinction. If any general distinction at al
ble it would surely be the complete exemption from pro
persons under sixteen who are consenting pathics in so
the present law qliite reverses this. The present ano
clearly due to the accident of sodomy being a general a
offence, while the offence of unlawful sexual intercourse is
in its scope to young girls and is of comparatively recen
* s

orlgm.

SADO_MA80CE8TIC ACTIVITIES
Although it is now a long time since Krafft-Ebing's wo
published, there is a remarkable dearth of authority on t
ability of consent as a defence when a charge of assault or
assault is based on sado-masochistic actinty. In England
the one central decision of Donovan 87 which is always ci
general authonty on the hits of the defence of consent t
k that case the accused had taken a seventeen-year-old
his garage and, for purposes of perverted sexual gratifica
there beaten her with a cane. There was a good deal of
that the girl had throughout been aware of his intention
consented. No serious injury was suffered but a doctor
examined the girl two days after the beating testified th
were some red marks on her body and that in his opinion
suffered a " fairly severe beating." The accused was charg
common assault and indecent assault. At the trial at
sessions the Chairman had throughout assumed that conse

rse The proposition to the contrary in Tatam would not be difficult

The ]udgment of the Court of CIiminal Appeal in that case is very
the point at issue was not the conviction of the boy but corrobor
only passage in the judgment which is relevant is the following: "
of the eldest boy, who was over fourteen, there was some evidence
that he was an accomplice . . . ," 15 Cr.App.R. 182. The possibl
of the boy is clearly assumed but not so authoritatively as to be beyo
. .

dlecusslon .

37 [198] 2 E.B. 498.

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
 Cnvzaw lr\T C]DTY A Y ^vY
Nov. 1962 Vl*s - lS s X1 OV rrs=sw

be a good defence but had not made it clear to the jury in n

dbection that the burderl of negativing consent Yvas on the pro#ecu-
tion, The accused was convicted and the Court of Criminal
Appeal felt compelled to qussh this conviction on the ground that
the whole trial had proceeded on the assumption that c:snsent wvould
be a good defence and that no adequate direction on the burden of
proof had been given.
Counsel for the prosecution argued both before the tl cot
and the Court of Criminal Appeal that it was ecessary > show
lack of consent to consict the accused and the Ccurt of Ca1
Appeal therefore felt obliged to discuss generally the availability a)f
consent as a defence in such cases. Citing and relying largely on
the judgments in Coney the court laid it down that coIlsexlt is oIlly a
defence in such cases when bodily harm is not a probable MF
quence of the acts done,38 and went on to say: " For this purpose
we think that ' bodily harm ' has its ordinary meag and includes
any hurt or injury calculated to interfere th the health or oomfort
of the prosecutor. Such hurt or injury need not be permanellts but
must, no doubt, be more than merely transient and triHing.X 39
The court was not willing to let the conviction stands since they
were not prepared to say that, if a proper direction on these lilles
had been gieren to the jury, an acquittal would have been Uea80Il-
able. But the court's own view of the facts of the case emerges
clearly ill a passage which deserves to be quoted for the light which
it throws on the possible attitude of English oourts to sads
masochistic practices.

" It may well be that, if the first question had been left to
the jury, they would have answered it by sapg that the appel
lant intended to cause and inilicted blows likely to cause bodily
harm to the prosecutrix.... But, althollgh we think it proW
able that this would have been the jury's view, it is, in our
opixLion impossible to say that they must inevitably have so
found. There are many gradations between a slight tap and a
searere blow, and the question whether particular blows were
likely or intended to cause bodily harm is one eently fitted
for the decision of a jurOr upon evidence which they have heard.
We may have little doubt what the decision would have been
in this case., . ." 4°

In the Southern Rhodesian case of AIcCoy 41 the accllsed the

manager of an airline company, caned a hostess for a breach of

38 At 607.
39 At 609.
i° At 510. The court made it clear that the motive of the parties may be matenal
A greater degres of harm may be consented to ln a " manly diversion " than in
a case lilie, DonoSoan, where " it was not in dispute that the motive of the
appellant was to gratify his own perverted desires" (at 509). The case iB
discussed by Glanville Williams. ts Consent and Public Policy" [1962J Cnm.
I1.R. 154.
41 [1953J 2 S.A. 4 (Southern Rhodesia); 15 E.E.D. 992.

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
 684 THE MODERN LAW Rl ;v^W
VOL. 26

regulations. She was an immigrant on probation, was in

difficulties and consequently would have been placed
difflcult position by losing her job. She consented to bei
when this was offered as an alternative to her being grounded
would have meant loss of pay and perhaps eventual dism
beating consisted of six cuts with a light cane but was adm
in degrading and hllmiliating circumstances. The acc
convicted of assault and his appeal dismissed, the court ho
the prosecution had proved the infliction of bodily harm
accused's intention to inflict it. But this finding is not vi
decision since the court also found that the woman had n
consented. A sigllificant point in the present context is
whole tone of the judgment indicates that the court w
influenced iII its finding of an intention to cause bodily ha
degrading circumstances of the caning.
In the Illinois case of Cohoon 42 the defendant was a si
yearKld farmer with a twentyzne-year-old wife. She
fessed indiscretions with other men. She suggested one d
her husband should go to town for provisions but he objec
if he did she might run away. She then said that, if he t
this, he should chain her up while he was away. The
testiiied that he objected to this proposal but that she
whereon he put one chain around her neck and, at her
insistence, another around her leg. He then went to mark
while there, was arrested for another offence and had to
police of his wife's condition so that they might go to extr
He was charged with false imprisonment and convicted by
court, but the conviction was quashed by the appeal cour
ground of consent, the court commenting: " In the light
confessed indiscretions with other men, she may have be
vated by some queer obsession of self martyrdom, in requestin
she be tied up." 43 Bere is no discussion in the judpen
limits of consent as a defence in such a context.
ThiS field of consensual sado-masochistic activity is one
it is submitted, the law must tread with more than usual
The pleasure pam syndrome is so characteristic of ordina
xnalsing that the boundary across which such activity be
perversion is not easy to draw. Fortunately there is of co
need for the courts to draw any hard line here between no
perverted sexual acts. The question of criminal liability is
question. But the danger is perhaps that the one judgmen
impinge upon the other, that an inarticulate judgment th
defendantfs conduct is tmnatlwal or disgusting may encou
express judgment that it is criminal. This may be so espe
where, a8 in Donovan, the conduct involved is of a stylised

42 315 Ill.App. 259; 42 N.E. (2dl 969 (1942).

43 42 N.E. (2d) at 971.

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
Nov. 1962 CONSENT IN SEXUE OBENCES 685

unaccompanied by more usual demonstrations of affection, and

therefore more plainly appears unnatural. The bodily harm test is
a sensible one though it may be suggested that the limits of the test
are not made very clear in Donovan itself. It must be calculated
to interfere with health or comfort; it need not be permanent but
must be more than merely transient and trifling. The vital words,
" more than merely transient and trifling " are capable of a wide
range of interpretation. If they should be interpreted so as to
convict an accused in the circumstances of Donovan's case (as, it
will be remembered, the Court of Criminal Appeal strongly suggested
would have been proper) then it is submitted that the test is too
harsh against the defendant. It must be remembered that sado-
masochistic consensual practices may take place in a variety of
circumstances where the nature of the consent subtly differs. We
may have, for example, the true meeting of minds where both
parties derive peculiar pleasure from their respective roles. Then
there may be the case of the disinterested or reluctant aggressor who
plays his or her role to please the masochistic partner who derives
pleasure therefrom. Conversely there may be the case of the
reluctant partner who submits out of a desire to please but who
derives no pleasure from and indeed may dislike the proceedings.
And there may be the case of a consent purchased for money. It
might be thought that the reluctant aggressor and the aggressor
who collaborates with an eager partner ought not to be judged on
quite the same basis as the one who persuades a reluctant partner
or who purchases a consent for money. But such distinctions would
probably be too difficult to draw in practice and we must be satis-
fied with a general test. For this purpose the bodily harm test is
reasonable in its essentials but might be interpreted somewhat more
liberally than the judgment in Donovan would seem to indicate.
The texts on sexual practice in this area demonstrate that the whole
object of a sado-masochistic practice will often be the infliction of
severe, temporary discomfort. It may be " transient " but will
often be more than " trifling." Where no likelihood of permanent
harm is present it would not seem to be good policy to declare such
acts criminal where consent is free and full.

CONCLUSION

It is not suggested that there is available any easy solution of the

problems raised by the consent issue in sexual offences through the
enunciation of some general principle in the form of an enactment
that might govern all cases of consent. Indeed, any such general
enactment could only be phrased in the most general terms of public
policy. What is needed, rather, is a high degree of practical awarv
ness in the case of each specific offence of the variable policy factors
involved. It is submitted that the present state of the law on
sexual offences reveals anomalies which demonstrate that the policy
factors have not been fully thought through and rationally applied.

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms
 Laws ver;ity Col ege O )'WaieMs (Nebw Ytork University), 8enior LeCturer in
1SE MODN LAW Rl!;Vlt;W VOLS 25

And the area of sexual offences is not the only one where the consent
issue is of great importance. It is crucial also in the field of surgical
operations where the theory of English criminal law is particularly
defective. This point will be taken up in a subsequent article.

GRARAB HU(}E8.*

This content downloaded from

117.199.107.169 on Sat, 22 Aug 2020 13:06:18 UTC
All use subject to https://about.jstor.org/terms