Recommended reforms would eliminate ambiguity about consent to violence in situations of family violence

The Tasmania Law Reform Institute today released its recommendations about the circumstances when a person can consent to being assaulted in the report, Consensual Assault. The report found current provisions governing consent to violence in the Tasmanian Criminal Code do not align to the needs of the legal system or the expectations of the wider community.

“The idea that a person might consent to an assault probably seems odd, but normally consent is a defence to assault. Contact sports provide a good example of why this is so,” Report author Dylan Richards said.

“However,  consensual violence cases pose difficulties for the criminal justice system and for society. There are limits on the circumstances when consent can be a defence to assault. These are set down in section 182(4) of the Tasmanian Criminal Code. Unfortunately, that section is a mixture of archaic language and out-dated thinking about permissible violence.  In particular, it does not address the problem of violence in the home. This means that it may leave those who are particularly vulnerable to family violence without adequate protection from the law.”

Further, the Report notes that the current law is unclear and so presents considerable difficulties for judges and juries, because it utilizes outmoded technical terms and concepts. “In ordinary circumstances,” Mr Richards said, “we would expect to rely on the guidance of judges about the meaning of the law. However, the archaic language used in s 182(4) makes it difficult for judges to direct juries on when consent is not a defence to assault. It also means that juries have to make decisions based on 19^th century concepts for which there is no real modern equivalent.”

Mr Richards also said that in the 19^th century when our present law was first developed the main concern was to prevent public disturbances of the peace. There was little concern about violence inflicted in the privacy of people’s homes. As a result, s 182(4)  does not deal with violence inflicted in private.  “This is an obvious anomaly,” Mr Richards said. “Nowadays, there is considerable concern about domestic and family violence. Additionally, its impact upon children has increasingly been recognised as a significant social ill.”

Prior to preparing its Report and recommendations for reform, the TLRI conducted a community consultation and examined the history of the current law as well as the law in other Australian jurisdictions. An Issues Paper prepared by Dr Helen Cockburn of the University of Tasmania School of Law formed the basis of this consultation. The consultation revealed concerns that the law relating to consensual assaults is unclear and does not accord with contemporary views about when the law should criminalise consensual assaults.

Accordingly, the Report recommends that the law relating to consent to assault be clarified and modernised to reflect these concerns. Specifically it makes (insert number of reforms) including (insert summary of principal recommendations.

The Report was prepared following a request from the former State  Attorney General, the late Vanessa Goodwin, that the TLRI investigate the issues surrounding consensual assault in Tasmania.

Read the Consensual Assault Final Report now.