Today’s post is an incredibly difficult post – to write as well as to cover. But as I’ve covered the some offences, murder, manslaughter and offences against the administration of justice, I thought this one was one that was worth a mention as I had seen it in a few novels. It does come up. And that is, if you can consent to being assaulted.
To look at this we first need to look at the offence of assault. There are varying offences of assault and they are graded by the level of injury that is sustained by the victim. Then there is the mens rea of the offence that we looked at when we discussed murder. The thought process the offender has prior and during the assault.
For assault there are two states that fulfil the right state of mind for a charge of assault, the intention to cause the injury and a subjective recklessness. A foresight to the consequences of their actions. For example, they knew that if they swung their fist into the victims face in that way, the outcome was likely to be a black eye at the best.
So, we have the mindset of our “offender” but what about the mindset of our victim? Does this make a difference to whether a charge is brought or not?
This is a minefield and is full of case law – cases that have actually occurred and have gone to court to be judged and that have then set precedent because it’s a sticky area. Which in reality of writing a novel works in your favour.
In 1994 a sado-masochistic group who inflicted varying degrees of injury on one another were charged with assault offences. The group claimed the injuries were consensual so therefore no assault had taken place, but if you look above, the offence is about the “offenders” frame of mind. It says nothing about the victims. If the “offender” the person doing the assaulting intended to cause injury then they are guilty of an offence. And the House of Lords followed an earlier policy that all assaults that result in more than transient harm will be inlawful unless there is good reason for allowing the plea of “consent”.
Good reason would be determined by;
- The practical consequences of the behaviour
- The dangerousness of the behaviour
- The vulnerability of the “consenting” person.
As you can see, this is not very clear.
And the waters were muddied even further when in the Court of Appeal in 1997 it was accepted that a husband could brand his initials into his wife’s buttocks with a hot knife provided she consented. The reasoning appeared to be that it was similar to tattooing.
The European Court of Human Rights has allowed that making sado-masochistic injury subject to criminal law does not infringe on the right to a private life as it is covered by the protection of health.
Where you do have a legitimate right to consent to risk of injury is during properly-conducted sporting events, tattooing and medical procedures.
So, should you have characters who are into this then be careful how you go about police involvement. It’s definitely not an easy area to step into.
You can find all other posts in this series HERE.
Rebecca Bradley is a retired UK police detective with over 15 years UK policing experience. Seven of those years were in uniform and the rest in a specialist investigative department where She handled multiple, serious and complex investigations. She is now a crime writer and offers a police procedural fact-checking service, available to all crime writers setting their work in England or Wales.
Please see THIS POST for further details.
Join my Writing Crime group. If you sign up to the group you will receive a police MG11 statement (a genuine statement paper – I found online) which I have written a statement on, using an incident that occurs at the end of my novella, Three Weeks Dead. So, it’s a genuine statement, authentically written by an ex-detective.
What else will you receive in this group?
Every month I will send you, either;
- Another document I have completed.
- A link to an online document I know will help you.
- Another police document that forms part of a police investigation.
All of these can be printed out and kept in a folder and your folder will grow with policing information that you, as writers, can use, or ignore, as you wish. It is fiction, but having the information means you can make an informed decision.
If you want to be a part of this group and to claim your first item (the completed statement) then go HERE.