Chapter 2: Causing or risking serious harm
Section 27: Consent to harm for sexual gratification is no defence
This section provides that, for the purposes of determining whether a person (‘D’), who inflicts "serious harm" on another person (‘V’) is guilty of a "relevant offence", it is not a defence that V consented to the infliction of the serious harm for the purposes of obtaining sexual gratification.
Subsection (2) makes clear that it does not matter whether the harm was inflicted for the purposes of obtaining sexual gratification for D, V or some other person.
Subsection (3) defines what is meant by "relevant offence" and "serious harm" by reference to sections 18 (causing grievous bodily harm with intent), 20 (inflicting grievous bodily harm) and 47 (actual bodily harm) of the Offences Against the Person Act 1861 ("the 1861 Act").
Subsection (4) provides for an exception in the case of an offence under section 20 or 47 of the 1861 Act where the serious harm consists of, or is a result of, the infection of V with a sexual transmitted infection in the course of sexual activity, and V consented to the sexual activity in the knowledge or belief that D had the sexually transmitted infection.
This subsection prevents D’s criminalisation in such cases, but preserves the position (as set out paragraph 58 of the judgment in R v Dica) that consent would provide no defence to a charge under section 18 of the 1861 Act.
Subsection (5) provides that nothing in this section affects any enactment or rule of law relating to other circumstances in which a person’s consent to the infliction of serious harm may, or may not, be a defence to a relevant offence. Well recognised examples include instances of medical treatment; injuries sustained in certain sports; and tattooing.
Section 28: Offence of non-fatal strangulation or asphyxiation
This section creates a new offence of non-fatal strangulation or asphyxiation of another person.
Subsection (1) states that a person (“A”) commits an offence if the conditions set out in subsections (2) and (3) are met.
The conditions are that A:
intentionally applies pressure on or to the throat or neck of another person (“B”), or does some other act amounting to battery of B; and
intends to affect B’s ability to breathe or the flow of blood to their brain, or is reckless in this regard.
Subsection (4) provides that the offence is committed irrespective of whether B’s ability to breathe or flow of blood to the brain is in fact affected. This means that a victim does not need to prove injury for the offence to be committed: the necessary components of the offence are the application of pressure or battery in combination with the perpetrator’s intention or recklessness as set out in subsections (2) and (3).
Subsection (5) makes clear that it does not matter how the act is done, so, for example, the person may use their hands, another part of their body or an object to apply the pressure or inflict the battery.
Subsections (6) to (8) make provision for a limited defence of consent to the offence. The defence is not available where:
B suffers "serious harm" as a result of the act; and
serious harm is intended by A, or A is reckless in this regard.
This reflects the law as set out in the case of R v Brown [1993] 2 W.L.R. 556 and subsequent cases, that where a person consents to an act that results in anything less than serious injury, their consent is a valid defence for the person who did the act.
Subsection (9) makes it an offence triable in Northern Ireland, as if it occurred in Northern Ireland, for a person who is a United Kingdom national or is habitually resident in Northern Ireland to do an act in a country outside the United Kingdom that amounts to an offence under the section.
Under subsection (10) the offence is triable in either a magistrates’ court or in the Crown Court. The maximum penalty on summary conviction in a magistrates’ court is 2 years’ imprisonment and/or a fine not exceeding the statutory maximum. On conviction on indictment in the Crown Court the maximum penalty is 14 years’ imprisonment and/or an unlimited fine.
Subsection (11) is an interpretive provision, defining “the 1861 Act“, "serious harm" and “United Kingdom national”.
