Issues Paper: Consensual Assault

This Issues Paper considers the circumstances when a person can consent to being assaulted. As a rule, cases of assault involve a non-consenting victim. However, on occasion people consent to assault. For example, people may resort to a fist fight to resolve a disagreement. Such cases pose difficulties for the criminal justice system and for society. Normally consent is a defence to assault. However, in some circumstances the law currently does not permit people to consent to being assaulted. The difficulty for those who make our laws is to determine when assaults should be unlawful regardless of consent. Such determinations have proved no easy task.

The Issues Paper examines the current law on consensual assault in Tasmania. It has been prepared in response to concerns that some aspects of the law relating to consensual assaults are unclear and do not accord with contemporary views about when the law should criminalise consensual assaults. In particular, it suggests that the law does not respond adequately to modern concerns about 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 Issues Paper notes that the current law presents considerable difficulties for judges and juries, because it utilizes outmoded technical terms and concepts. This 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.

Associate Professor Terese Henning, the Director of the Institute states that the question of when consent should be a defence to assault is not easy to answer. 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. Nowadays, there is considerable concern about domestic and family violence. Additionally, its impact upon children has increasingly been recognised as a significant social ill.

The Institute was seeking public responses to five approaches to reforming the law:

• Make no change to the law;
• Allow consent to be a defence to all assaults;
• Impose limits on the level of actual or likely physical injury people can consent to;
• Create a presumption that consensual assaults are lawful unless the prosecution proves that positive harm has been caused;
• Amend Tasmanian family violence laws to make violence perpetrated in the presence or hearing of children a family violence offence.

For a copy of the Issues Paper, please visit: http://www.utas.edu.au/law-reform/

For more information or queries contact Law.Reform@utas.edu.au or phone the Institute on (03) 6226 2069.