Chapter 2: Causing or Risking Serious Harm
29.This Chapter clarifies the law on the defence of consent to harm for the purpose of sexual gratification and creates a new offence of non-fatal strangulation or asphyxiation, reflecting similar changes made to the law of England and Wales via the Domestic Abuse Act 2021.
30.Section 27 makes the existing common law position clear that a person cannot rely on the injured party’s consent as a defence where acts carried out for the purpose of obtaining sexual gratification, regardless of whose sexual gratification, result in serious harm.
31.The threshold of ‘serious harm’ aims to balance individuals’ private law rights with the public interest of protecting the health and safety of members of society, and reflects the general proposition established in the case of R. v. Brown [1993] 2 W.L.R.556, that a person may not consent to the infliction of serious harm on themself and, by extension, is unable to consent to their own death.
32.The section also acknowledges the exception in relation to cases involving the transmission of sexually transmitted infections, in so far as the law has been established by the cases of R v Dica [2004] 3 All ER 539 and R v Konzani [2005] EWCA Crim 706.
33.Section 28 makes provision for a new offence of strangulation or asphyxiation. It provides for trial in either the magistrates’ courts or in the Crown Court and sets the maximum penalties for each mode of trial.
34.Aligning with section 27, section 28 also makes provision for consent to be available as a defence provided serious harm does not occur.
